Meanwhile, the MSPB has raised a caution about legislation pending in Congress to allow the VA to revoke awards already paid to its employees who had been involved in the manipulation of patient records, as well as those paid to supervisors who knew or should have known about it. While not taking a position on the “clawback” bill, MSPB noted that while supervisors may be held accountable for actions or failures of their subordinates, under legal precedent the agency must fully document the sequence of events and their responsibility. Also, while the bill (S-627) – which could move soon through the Senate committee level soon – allows for an internal hearing at the VA, it could be seen as denying due process because the VA secretary could order the award before considering the employee’s response, MSPB said. And while the individual could appeal to MSPB, it said, the bill is written in a way that limits normal due process rights at the board. The House already has passed a separate measure (HR-280) that is somewhat broader than the Senate bill. Employee organizations also have raised questions about whether such bills would survive a court challenge on due process grounds; a challenge already is pending to a law enacted last year limiting appeal rights for VA SES members.
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