Clarification of Federal Employment Protections Act

Mr. President, traumatic brain injury is the signature injury of the Iraq war. The widespread use of Improvised Explosive Devices, IEDs, has taken a terrible toll. Even those who have walked off the battlefield without visible scars often find they have suffered the internal trauma of a traumatic brain injury.

Today, I am introducing legislation, along with Senators Warner, Murray, Graham, Obama, Webb, and Cantwell, to create a Traumatic Brain Injury Program, operated jointly by the Department of Defense and the Department of Veterans Affairs, to ensure that those servicemembers who suffer a brain injury receive all the services they need. The legislation establishes a standard of care for each individual found to have suffered a brain injury, improves the coordination of care, strengthen the rights of brain injury patients, and expands brain injury research in the Departments of Defense and Veterans Affairs.

This legislation will reduce the number of our wounded soldiers who fall through the cracks and are left to fend for themselves as they struggle to recover from a traumatic brain injury. I am pleased to have the support of Veterans for America for this legislative effort.

We have made tremendous progress in battlefield medical care. During Vietnam, one in three servicemembers who were injured died. In Iraq and Afghanistan, 1 in 16 who are injured die. But with the changes in warfare and in medical technology, more of our servicemembers are coming home with serious brain injuries from Iraq and Afghanistan than from any other recent conflicts we've known.

For some of these wounded warriors, the greatest battle comes at home when they seek care. Many of these returning troops need long-term treatment and rehabilitation long after their discharge from active duty, as they fight to overcome the severe disabilities that a traumatic brain injury can cause.

For others, there is a different story. Some servicemembers don't even realize they suffered a traumatic brain injury until long after their discharge, because we don't do a very good job of identifying and treating those who may have suffered a brain injury.

Fortunately, many of those who suffer a brain injury are able to recover fairly quickly. But for some, the experience is life-altering, even life-shattering. We must not fail them in their time of need.

Consider the case of Sgt. Eric Edmundson. Eric left my home state of Illinois to serve in Iraq. In October 2005, he suffered a severe head concussion when a roadside bomb exploded near him. He was cared for at Walter Reed Hospital, then was transferred to a VA facility where he and his family felt he was not receiving the kind of treatment that would allow him to continue to make progress in rehabilitation.

He would have been stuck there if the family had not found a creative way to obtain the care he needed. The family found a way to ensure that Eric could receive treatment and rehabilitation at one of the premiere rehabilitation hospitals in the nation: the Rehabilitation Institute of Chicago. He is making great progress there and hopes to walk out of the hospital some day soon.

We need to use private hospitals more. In fact, we should use them whenever they are the best option for our returning soldiers who are wounded. In the case of traumatic brain injury, they often have the special expertise needed, because the leading facilities in this field deal with brain injuries day in and day out as a result of construction accidents and car crashes.

Now consider the case of Sgt. Garrett Anderson of Champaign, Illinois. Garrett went to Iraq with the Illinois National Guard. After 4 months there, an IED exploded next to his armored Humvee in Baghdad. The blast tore off his right arm below the elbow, shattered his jaw, severed part of his tongue, damaged his hearing, and punctured his body with shrapnel.

He spent 7 months at Walter Reed, where he received excellent care in Ward 57, the famous amputee ward. However, the outpatient care that followed has been filled with paperwork and red tape. It was months before the VA recognized that Garrett had suffered a traumatic brain injury. He has not received the kind of treatment for brain injury that could make a significant difference in the trajectory of his rehabilitation.

We need to change the way we handle patients with traumatic brain injury, so that they receive the care they need at the time they need it.

The legislation I am introducing takes a comprehensive approach to dealing with the traumatic brain injuries that plague our troops and veterans.

First, this legislation would establish a Traumatic Brain Injury Program, run by DOD and the VA, to provide treatment and rehabilitation to servicemembers and veterans who have suffered a service-connected traumatic brain injury.

Second, this bill would establish a standard of care for the participants in the TBI Program. Specifically, each individual in the program shall be provided ``the highest quality of care possible based on the medical judgment of qualified medical professionals in facilities that most appropriately meet the specific needs of the individual. ``And they shall be rehabilitated to the fullest extent possible using the most up-to-date medical technology, medical rehabilitation practices, and medical expertise available.''

That's the standard of care we should provide to these injured troops who gave so much of themselves for us. They should receive the best we have to give.

Third, the measure would direct the Defense Department to develop and administer a standardized cognitive pre-test, which would be administered to all military personnel prior to deployment and again upon return from deployment to determine if they have suffered a brain injury.

It also would require DOD and the VA to refer any servicemember or veteran for TBI screening if it is found, in the course of later treatment or contacts, that the servicemember or veteran may have suffered a service-connected brain injury.

Anyone found to have suffered a traumatic brain injury would be enrolled in the TBI program and receive the care they need.

One of the things the families of TBI patients complain most about is the confusion that surrounds their efforts to ensure that their loved one received all needed care. The fourth thing this measure would do is to direct DOD and the VA to assign each patient a lead case manager to ease the stress on the patient and family, facilitate navigation through the DOD and VA systems, ensure proper care, present options for care outside of DOD and the VA, and ensure consistent guidance. Additionally, DOD and the VA would assign to each patient a lead primary care physician to coordinate and oversee the care provided to the patient, including all treatment, rehabilitation, and medications.

Another complaint of families and TBI patients is that they are sometimes blocked from receiving the care they need due to their status as either a veteran or an active duty member. DOD and the VA have different health benefit options. In some cases, servicemembers have found that, because they accepted a discharge, they lost access to benefits that would help them.

Our bill addresses this problem by establishing, for these TBI patients, a temporary overlap of benefits. The participants in the TBI Program will be allowed, for 2 years, to receive any of the benefits available to veterans and to active duty members, regardless of their active duty status. This will help ensure they receive the best care and rehabilitation available, wherever it may be.

Our bill would spell out some other rights that are important for the rehabilitation of TBI patients. First, DOD and the VA would be required to provide a referral to a medical professional outside of DOD and the VA when requested by a TBI patient. This will allow patients to determine whether there is better care in the private sector that is not being provided to that patient. They would also have a right to an appeals process to challenge any failure to provide the standard of care required in the TBI Program.

In some cases, undiagnosed traumatic brain injuries may contribute to behavior resulting in other than honorable discharges. Upon the request of a servicemember who served since 2001 and was discharged under other than honorable conditions, the DOD would be directed to review the discharge to determine whether a brain injury might be the root cause of the actions that precipitated the adverse discharge, with fair reconsideration of the discharge if such evidence is found.

Similarly, the VA would be required to make available, upon request, an appeals process to update the disability rating of a veteran who is found to have suffered a traumatic brain injury.

Finally, this measure authorizes additional funding for research related to traumatic brain injury both in DOD and in the VA, to improve screening, diagnosis, treatment, and rehabilitation for traumatic brain injury.

This is a comprehensive effort to improve the treatment of our Nation's wounded servicemembers who have suffered a traumatic brain injury. I can't imagine the anguish that must be associated with such an injury, but I can imagine the kind of medical system I would like to have in place if it were my son or daughter struggling to recover from such an injury. This legislation reflects that vision.

I thank my cosponsors, Senators Warner, Murray, Graham, Obama, Webb, and Cantwell, and I urge all of my colleagues to support this measure.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, as we celebrate Public Service Recognition Week and the dedication and professionalism of Federal employees, I rise today to introduce legislation to reassert protections for Federal employees and applicants for Federal employment against discrimination based on one's sexual orientation. The Clarification of Federal Employment Protection Act will spell out the protections that Federal employees currently have but have been denied by the Office of Special Counsel, OSC. I am pleased that Senators Lieberman, Collins, Levin, Leahy, Feingold, and Clinton are cosponsoring this important legislation and that Representative Henry Waxman, Chairman of the House Oversight and Government Reform Committee, is introducing a companion bill in the House.

When Congress passed the Civil Service Reform Act of 1978, it established a list of prohibited personnel practices, personnel actions that were clearly not in line with the Merit System Principles and were subject to prosecution by OSC. Examples include personnel actions, such as hiring, firing, and changes in pay, against employees based on a whistleblower disclosure, nepotism, or off-duty conduct.

The prohibition on personnel action based on off-duty conduct, found in section 2302(b)(10) of title 5, United States Code, has been interpreted for years to prohibit the taking of personnel actions against employees and applicants

for employment based on their sexual orientation. In 1980, Mr. Alan Campbell, Director of the Office of Personnel Management, OPM, at the time, wrote a memorandum to the heads of all executive branch agencies advising that, under 5 U.S.C. 2302(b)(10), employees and applicants were to be protected against inquiries into or actions based upon non job-related conduct, including religious or community affiliations, or sexual orientation. The position by OPM has been reaffirmed time and again, most recently by the current OPM Director, Linda Springer, in her responses to questions posed by the Homeland Security and Governmental Affairs Committee in relation to her nomination for the position. In fact, to this day, OPM's website contains a guide to Federal employee rights which states that section 2302(b)(10) has been interpreted by OPM to prohibit discrimination based upon sexual orientation.

OPM is not alone in this interpretation. The previous Special Counsel also interpreted 2302(b)(10) to protect against discrimination based on an individual's sexual orientation. For example, in 2003, OSC secured corrective and disciplinary action against a Federal supervisor who discriminated against Federal job applicant because he was gay in violation of section 2302(b)(10). In 2004, following the debate spurred by OSC over the interpretation of this provision, White House spokesman Trent Duffy said the president ``believes that no Federal employee should be subject to unlawful discrimination, and Federal agencies will fully enforce the law against discrimination, including discrimination based on sexual orientation.''

Upon the nomination of Scott Bloch to be the new Special Counsel, I asked the nominee about his interpretation of the laws protecting Federal employees and applicants against sexual orientation discrimination. When asked if he would support the interpretation of 2302(b)(10) by OPM and OSC, he said that he would not fail to enforce a claim of sexual orientation discrimination before OSC that shows through the evidence that the statute has been violated.

Nonetheless, after being in office for only a few months, Special Counsel Bloch conducted a review of the discrimination statute and claimed that section 2302(b)(10) only provides protection against discrimination based on conduct, including sexual conduct, but not one's sexual orientation. Instead, Mr. Bloch claims that for discrimination based on status, referring to sexual orientation, it would have to be listed under section 2302(b)(1), which protects employees from discrimination based on race, gender, religion, or marital status. This departure from the long-standing interpretation of (b)(10) by OSC and OPM is illogical. When a supervisor who dislikes gays or lesbians refuses to hire an applicant who the supervisor believes is gay or lesbian, it follows that the supervisor is basing the personnel action on disapproval of the applicant's presumed sexual conduct. In other words, in the context of sexual orientation discrimination, status implies conduct.

I believe that Congress must act to guarantee the protections it has provided to Federal employees and applicants for Federal employment. We cannot allow one administration official's opinion to undermine the merit system or the rights and protections Federal workers. The legislation I am introducing today would affirm that sexual orientation is protected by section 2302(b)(10) but also make it a clear protected status under section (b)(1). I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, as we celebrate Public Service Recognition Week and the dedication and professionalism of Federal employees, I rise today to introduce legislation to reassert protections for Federal employees and applicants for Federal employment against discrimination based on one's sexual orientation. The Clarification of Federal Employment Protection Act will spell out the protections that Federal employees currently have but have been denied by the Office of Special Counsel, OSC. I am pleased that Senators Lieberman, Collins, Levin, Leahy, Feingold, and Clinton are cosponsoring this important legislation and that Representative Henry Waxman, Chairman of the House Oversight and Government Reform Committee, is introducing a companion bill in the House.

When Congress passed the Civil Service Reform Act of 1978, it established a list of prohibited personnel practices, personnel actions that were clearly not in line with the Merit System Principles and were subject to prosecution by OSC. Examples include personnel actions, such as hiring, firing, and changes in pay, against employees based on a whistleblower disclosure, nepotism, or off-duty conduct.

The prohibition on personnel action based on off-duty conduct, found in section 2302(b)(10) of title 5, United States Code, has been interpreted for years to prohibit the taking of personnel actions against employees and applicants

for employment based on their sexual orientation. In 1980, Mr. Alan Campbell, Director of the Office of Personnel Management, OPM, at the time, wrote a memorandum to the heads of all executive branch agencies advising that, under 5 U.S.C. 2302(b)(10), employees and applicants were to be protected against inquiries into or actions based upon non job-related conduct, including religious or community affiliations, or sexual orientation. The position by OPM has been reaffirmed time and again, most recently by the current OPM Director, Linda Springer, in her responses to questions posed by the Homeland Security and Governmental Affairs Committee in relation to her nomination for the position. In fact, to this day, OPM's website contains a guide to Federal employee rights which states that section 2302(b)(10) has been interpreted by OPM to prohibit discrimination based upon sexual orientation.

OPM is not alone in this interpretation. The previous Special Counsel also interpreted 2302(b)(10) to protect against discrimination based on an individual's sexual orientation. For example, in 2003, OSC secured corrective and disciplinary action against a Federal supervisor who discriminated against Federal job applicant because he was gay in violation of section 2302(b)(10). In 2004, following the debate spurred by OSC over the interpretation of this provision, White House spokesman Trent Duffy said the president ``believes that no Federal employee should be subject to unlawful discrimination, and Federal agencies will fully enforce the law against discrimination, including discrimination based on sexual orientation.''

Upon the nomination of Scott Bloch to be the new Special Counsel, I asked the nominee about his interpretation of the laws protecting Federal employees and applicants against sexual orientation discrimination. When asked if he would support the interpretation of 2302(b)(10) by OPM and OSC, he said that he would not fail to enforce a claim of sexual orientation discrimination before OSC that shows through the evidence that the statute has been violated.

Nonetheless, after being in office for only a few months, Special Counsel Bloch conducted a review of the discrimination statute and claimed that section 2302(b)(10) only provides protection against discrimination based on conduct, including sexual conduct, but not one's sexual orientation. Instead, Mr. Bloch claims that for discrimination based on status, referring to sexual orientation, it would have to be listed under section 2302(b)(1), which protects employees from discrimination based on race, gender, religion, or marital status. This departure from the long-standing interpretation of (b)(10) by OSC and OPM is illogical. When a supervisor who dislikes gays or lesbians refuses to hire an applicant who the supervisor believes is gay or lesbian, it follows that the supervisor is basing the personnel action on disapproval of the applicant's presumed sexual conduct. In other words, in the context of sexual orientation discrimination, status implies conduct.

I believe that Congress must act to guarantee the protections it has provided to Federal employees and applicants for Federal employment. We cannot allow one administration official's opinion to undermine the merit system or the rights and protections Federal workers. The legislation I am introducing today would affirm that sexual orientation is protected by section 2302(b)(10) but also make it a clear protected status under section (b)(1). I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce the Lytton Gaming Oversight Act of 2007, a bill seeking to ensure that Native American tribes follow the regular process under Federal law prior to establishing and operating gaming facilities.

I believe this approach provides a good step forward as it has the support of both the local community and the Lytton tribe.

I am pleased to have worked closely with representatives of the local community, such as California Assemblymember Loni Hancock, D-Berkeley, as well as my colleague Senator Specter in crafting this piece of legislation.

I introduced similar legislation in the 108th and 109th Congresses, but these bills would have effectively required closure of the casino operations, until a point when and if the Lytton successfully completed the two-part determination process.

This legislation, however, stalled. The legislation introduced today breaks that stalemate and seeks to prevent a massive expansion of gaming in the Bay Area.

The bill requires that the Lytton Band of Pomo Indians follow critical oversight guidelines laid out in Section 20 of the Indian Gaming Regulatory Act, IGRA, before engaging in Class III gaming.

This legislation would amend language inserted into the Omnibus Indian Advancement Act of 2000.

That language mandated that the Secretary of Interior take a card club and adjacent parking lot in the San Francisco Bay Area into trust for the Lytton tribe as their reservation and backdate the acquisition to October 17, 1988, or pre-IGRA.

This backdating was done expressly with the goal of allowing the Lytton tribe to circumvent IGRA's ``two-part determination'' process, an important step that requires both Secretarial and Gubernatorial approval, in addition to consultation with nearby tribes and the local community and its representatives.

The legislation that I have introduced would simply return the Lytton tribe to the same status as all other tribes seeking to pursue Class III, or Nevada-style gaming, on lands acquired after the passage of IGRA in 1988.

It would allow the tribe to continue operating its Class II gaming facility provided it follows all IGRA regulations regarding gaming on newly acquired lands going forward.

Finally, it would also preclude any expansion of the facility used by the Lytton for Class II gaming.

I would like to emphasize what the bill would not do. It would not: Remove the tribe's recognition status; Alter the trust status of the new reservation; or take away the tribe's ability to conduct gaming through the normal IGRA process.

This legislation was solely crafted to restore IGRA's rightful oversight of the gaming process, just as Congress intended.

Section 20 of the Indian Gaming Regulatory Act provides clear guidelines for addressing the issue of gaming on so-called ``newly- acquired'' lands, or lands that have been taken into trust since the enactment of IGRA in 1988.

Most importantly, in my opinion, IGRA's ``two-part determination'' process provides for both Federal and State approval, while protecting the rights of nearby tribes and local communities.

Circumventing this process creates a variety of serious and critical multi-jurisdictional issues, issues which can negatively affect the lives of ordinary citizens and deprive local and tribal governments of their ability to effectively represent their communities.

Without passage of this bill, the Lytton could take the former card club and the adjacent parking lot that is now their reservation and turn it into a large gambling complex outside the regulations set up by the Indian Gaming Regulatory Act. In fact, this is exactly what was proposed in the summer of 2004.

While the tribe announced that it was dropping its pursuit of a sizable casino, it could reverse these plans at any time and proceed with Class III gaming without first going through the regular process.

Allowing this to happen would set a dangerous precedent not only for California, but every State where tribal gaming is permitted.

I do not think it is asking too much to require that the Lytton be subject to the regulatory and approval processes applicable to all other tribes by the Indian Gaming Regulatory Act.

This bill would do just that.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am pleased to be joined by Senator McCain to introduce the Las Cienegas Enhancement and Saguaro National Park Boundary Adjustment Act of 2007. This legislation directs a land exchange between the Bureau of Land Management, BLM, and the Las Cienegas Conservation, LLC in southeastern Arizona. A similar bill was introduced last year, and it passed the House of Representatives. Unfortunately, the Senate was unable to pass it before the session ended.

We can turn this disappointment into a success. The bill we introduce today adds to the exchange a highly sought after private parcel, the ``Bloom Property.'' The Bloom Property would be added to Saguaro National Park. State and local officials, conservationists, and other stakeholders have worked together to include the Bloom Property in this bill and to structure an exchange that is fair and in the public interest.

Let me explain the details of the exchange. The land to be transferred out of Federal ownership, approximately 1,280 acres, is referred to as the ``Sahuarita property.'' This property is BLM-managed land south of Tucson near Corona de Tucson. The land is low-lying Sonoran desert and has been identified for disposal by the BLM through its land-use planning process.

The private land to be brought into Federal ownership consists of two parcels. The first parcel is approximately 2,392 acres of land referred to as the ``Empirita-Simonson property.'' This property lies north of the Las Cienegas National Conservation Area managed by the BLM. The Empirita-Simonson property lies within the ``Sonoita Valley Acquisition Planning District'' established by Public Law 106-538, which designated the Las Cienegas National Conservation Area. The act directed the Department of the Interior to acquire lands from willing sellers within the planning district for inclusion within the conservation area. The idea was to further protect lands with important resource values for which the national conservation area was designated.

The second parcel, the Bloom Property, is approximately 160 acres of land that was identified for inclusion in the Saguaro National Park during a boundary study conducted by the National Park Service in 1993. In 1994, using the data from the study, Congress enacted legislation expanding the park and changed Saguaro's designation from monument to park. At that time, the Bloom Property did not have a willing seller. I am pleased to say circumstances have changed, and we are able to include it in this exchange. The Bloom Property, which lies just south of the Sweetwater Trail in Saguaro Park West, is a prime example of Sonoran desert important to maintain corridors for wildlife like the mountain lion.

Although this bill is centered on the land exchange I just described, it also accomplishes two other important objectives: addressing water withdrawals at Cienegas Creek and providing road access to a popular recreation destination, the Whetstone Mountains controlled by the Forest Service.

Let's talk about water. Arizonans understand that protecting our water supply is crucial to the State's future. For this reason, we continually seek ways to promote responsible use of our limited water supply. This bill promotes responsible use. There is a prior claim to a well site on the private land that will be exchanged. That prior claim would allow a developer to withdraw 1,600 acre-feet of water a year. Pima County and the community at large are concerned about the future of Cienegas Creek and the entire riparian area if these water withdrawals occur.

To address this concern, the land exchange is conditioned on Las Cienegas Conservation, LLC conveying the well site to Pima County and relinquishing those water rights it controls. The net result is a water savings of 1,050 acre-feet per year. This is a significant benefit to this riparian area.

Overall, this bill allows us to accomplish important environmental and conservation objectives while managing our development. It is a bill with broad support that includes Pima County, the city of Tucson, and many others. I urge my colleagues to work with me to approve this legislation at the earliest possible date.