Sec. 106. Improved authorities of secretary to improve accountability of senior executives and employees of the Indian Health Service
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Title VI of the Indian Health Care Improvement Act ( 25 U.S.C. 1661 et seq.), as amended by section 105, is further amended by adding at the end the following: The Secretary may, as provided in this section, reprimand or suspend, involuntarily reassign, demote, or remove a covered individual from a senior executive position at the Service if the Secretary determines that the misconduct or performance of the covered individual warrants such action. If the Secretary removes an individual pursuant to paragraph (1), the Secretary may remove the individual from the civil service (as defined in section 2101 of title 5, United States Code).
A covered individual who is the subject of an action under subsection
(a)is entitled to— advance notice of the action and a file containing all evidence in support of the proposed action; be represented by an attorney or other representative of the covered individual’s choice; and grieve the action in accordance with an internal grievance process that the Secretary shall establish for purposes of this subsection. The aggregate period for notice, response, and decision on an action under subsection
(a)may not exceed 15 business days. The period for the response of a covered individual to a notice under paragraph (1)(A) of an action under subsection
(a)shall be 7 business days. A decision under this paragraph on an action under subsection
(a)shall be issued not later than 15 business days after notice of the action is provided to the covered individual under paragraph (1)(A). The decision shall be in writing, and shall include the specific reasons for the decision. The Secretary shall ensure that the grievance process established under paragraph (1)(C) takes fewer than 21 days. A decision under paragraph
(2)that is not grieved, and a grievance decision under paragraph (3), shall be final and conclusive. A covered individual adversely affected by a decision under paragraph
(2)that is not grieved, or by a grievance decision under paragraph (3), may obtain judicial review of such decision. In any case in which judicial review is sought under paragraph (5), the court shall review the record and may set aside any Department action found to be— arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with a provision of law; obtained without procedures required by a provision of law having been followed; or unsupported by substantial evidence. Section 3592(b)(1) of title 5, United States Code, does not apply to an action under subsection (a). In this section: The term covered individual means a career appointee (as that term is defined in section 3132(a) of title 5, United States Code). 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. The term Secretary means the Secretary of Health and Human Services, acting through the Director of the Service. The term senior executive position means a Senior Executive Service position (as that term is defined in section 3132(a) of title 5, United States Code). The Secretary may remove, demote, or suspend a covered individual who is an employee of the Service if the Secretary determines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension. If the Secretary removes, demotes, or suspends a covered individual pursuant to paragraph (1), the Secretary may— remove the covered individual from the civil service (as defined in section 2101 of title 5, United States Code); demote the covered individual by means of a reduction in grade for which the covered individual is qualified, that the Secretary determines is appropriate, and that reduces the annual rate of pay of the covered individual; or suspend the covered individual. Notwithstanding any other provision of law, any covered individual subject to a demotion under subsection (a)(2) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade. A covered individual subject to a demotion under subsection (a)(2) may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave. If a covered individual subject to a demotion under subsection (a)(2) does not report for duty or receive approval to use accrued unused leave, such covered individual shall not receive pay or other benefits pursuant to subsection (d)(5). The aggregate period for notice, response, and final decision in a removal, demotion, or suspension under this section may not exceed 15 business days. The period for the response of a covered individual to a notice of a proposed removal, demotion, or suspension under this section shall be 7 business days. Paragraph
(3)of subsection
(b)of section 7513 of title 5, United States Code, shall apply with respect to a removal, demotion, or suspension under this section. The procedures in this subsection shall supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures. The Secretary shall issue a final decision with respect to a removal, demotion, or suspension under this section not later than 15 business days after the Secretary provides notice, including a file containing all the evidence in support of the proposed action, to the covered individual of the removal, demotion, or suspension. The decision shall be in writing and shall include the specific reasons for the decision. The procedures under chapter 43 of title 5, United States Code, shall not apply to a removal, demotion, or suspension under this section. Subject to subparagraph
(B)and subsection (d), any removal or demotion under this section, and any suspension of more than 14 days under this section, may be appealed to the Merit Systems Protection Board, which shall refer such appeal to an administrative judge pursuant to section 7701(b)(1) of title 5, United States Code. An appeal under subparagraph
(A)of a removal, demotion, or suspension may only be made if such appeal is made not later than 10 business days after the date of such removal, demotion, or suspension. Upon receipt of an appeal under subsection (c)(4)(A), the administrative judge shall expedite any such appeal under section 7701(b)(1) of title 5, United States Code, and, in any such case, shall issue a final and complete decision not later than 180 days after the date of the appeal. Notwithstanding section 7701(c)(1)(B) of title 5, United States Code, the administrative judge shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection
(a)if the decision is supported by substantial evidence. Notwithstanding title 5, United States Code, or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary. The decision of the administrative judge under paragraph
(1)may be appealed to the Merit Systems Protection Board. Notwithstanding section 7701(c)(1)(B) of title 5, United States Code, the Merit Systems Protection Board shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection
(a)if the decision is supported by substantial evidence. Notwithstanding title 5, United States Code, or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the Merit Systems Protection Board shall not mitigate the penalty prescribed by the Secretary. In any case in which the administrative judge cannot issue a decision in accordance with the 180-day requirement under paragraph (1), the Merit Systems Protection Board shall, not later than 14 business days after the expiration of the 180-day period, submit to the appropriate committees of Congress a report that explains the reasons why a decision was not issued in accordance with such requirement. A decision of the Merit Systems Protection Board under paragraph
(3)may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5, United States Code, or to any court of appeals of competent jurisdiction pursuant to subsection (b)(1)(B) of such section. The Merit Systems Protection Board may not stay any removal or demotion under this section, except as provided in section 1214(b) of title 5, United States Code. During the period beginning on the date on which a covered individual appeals a removal from the civil service under subsection
(c)and ending on the date that the United States Court of Appeals for the Federal Circuit issues a final decision on such appeal, such covered individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits related to the employment of the individual by the Service. To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board such information and assistance as may be necessary to ensure an appeal under this subsection is expedited. If an employee prevails on appeal under this section, the employee shall be entitled to backpay (as provided in section 5596 of title 5, United States Code). If an employee who is subject to a collective bargaining agreement chooses to grieve an action taken under this section through a grievance procedure provided under the collective bargaining agreement, the timelines and procedures set forth in subsection
(c)and this subsection shall apply. In the case of a covered individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of title 5, United States Code, the Secretary may not remove, demote, or suspend such covered individual under subsection
(a)without the approval of the Special Counsel under section 1214(f) of title 5, United States Code. Notwithstanding any other provision of law, the Special Counsel (established by section 1211 of title 5, United States Code) may terminate an investigation of a prohibited personnel practice alleged by an employee or former employee of the Service after the Special Counsel provides to the employee or former employee a written statement of the reasons for the termination of the investigation. The statement described in paragraph
(1)may not be admissible as evidence in any judicial or administrative proceeding without the consent of the employee or former employee described in paragraph (1). In the case of a covered individual who is removed or demoted under subsection (a), to the maximum extent feasible, the Secretary shall fill the vacancy arising as a result of such removal or demotion. In this section: The term covered individual means an individual occupying a position at the Service, but does not include— an individual occupying a senior executive position (as defined in section 606(d)); an individual who has not completed a probationary or trial period; or a political appointee. The term grade has the meaning given such term in section 7511(a) of title 5, United States Code. 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. The term political appointee means an individual who is— employed in a position described under sections 5312 through 5316 of title 5, United States Code (relating to the Executive Schedule); 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, United States Code; or employed in a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations, or successor regulation. The term Secretary means the Secretary of Health and Human Services, acting through the Director of the Service. The term suspend means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay for a period in excess of 14 days. . Section 4303(f) of title 5, United States Code, is amended— in paragraph (3), by striking or at the end; in paragraph (4), by striking the period at the end and inserting , or ; and by adding at the end the following: any removal or demotion under section 607 of the Indian Health Care Improvement Act. . Not later than 18 months after the date of enactment of this Act, the Secretary of Health and Human Services or the Inspector General of the Department of Health and Human Services shall submit a report to Congress that includes the following: The number of employees of the Indian Health Service who were removed, demoted, or suspended in the 1-year period before the date of enactment of this Act. The number of employees of the Indian Health Service who were removed, demoted, or suspended in the 1-year period after the date of enactment of this Act using the updated authorities provided in the amendments made by this Act. The appropriate details of removals, demotions, and suspensions that lend necessary context.
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Sec. 106
Improved authorities of secretary to improve accountability of senior executives and employees of the Indian Health Service
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