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(a)) is amended by adding at the end the following: In this section: The term covered individual means a career appointee (as defined in section 3132(a) of title 5, United States Code). The term misconduct includes— neglect of duty; malfeasance; failure to accept a directed reassignment; and failure to accompany a position in a transfer of function. The term Secretary means the Secretary, acting through the Service.
The term senior executive position means a Senior Executive Service position (as defined in section 3132(a) of title 5, United States Code). The Secretary may, in accordance with this section, reprimand, 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 an action. If the Secretary removes a covered 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 or removal, as applicable, under subsection
(b)is entitled— to advance notice of the action or removal; to access a file containing all evidence in support of the proposed action or removal; to be represented by an attorney or other representative of the covered individual’s choice; and to grieve the decision on the action or removal under paragraph
(2)in accordance with the internal grievance process established by the Secretary under paragraph (3). The aggregate period for notice, response, and decision on an action or removal under subsection
(b)may not exceed 15 business days. A covered individual receiving a notice under paragraph (1)(A) of an action or removal, as applicable, under subsection
(b)shall have not more than 7 business days to respond to the notice. The Secretary shall issue a decision on an action or removal, as applicable, under subsection
(b)not later than 15 business days after the date on which notice of the action or removal, as applicable, is received by the applicable covered individual under paragraph (1)(A). A decision under clause (i)— shall be in writing; and shall include the specific reasons for the decision. A decision under this paragraph that is not grieved under paragraph
(3)by the deadline described in that paragraph shall be final and conclusive. The Secretary shall establish an internal grievance process under which a covered individual may grieve a decision issued under paragraph
(2)not later than the date that is 7 business days after the date on which the decision under that paragraph was issued. The Secretary shall issue a decision for which an internal grievance process is initiated under subparagraph
(A)not later than 21 business days after the date on which the grievance process is initiated by the covered individual. A grievance decision under this paragraph 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 the decision. In any case in which judicial review is sought under paragraph (4), the court shall review the record and may set aside any action of the Department or the Service 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, shall not apply to an action under subsection (b). In this section: The term covered individual means an individual occupying a position at the Service. The term covered individual does not include— an individual occupying a senior executive position (as defined in section 606(a)); an individual who has not completed a probationary or trial period; or a political appointee. The term grade has the meaning given the term in section 7511(a) of title 5, United States Code. The term misconduct includes— neglect of duty; malfeasance; failure to accept a directed reassignment; and failure to accompany a position in a transfer of function. The term political appointee means an individual who is— employed in a position described in any of 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 (as those terms are defined in 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 a successor regulation). The term Secretary means the Secretary, acting through 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. The Secretary may, in accordance with this section, remove, demote, or suspend a covered individual from employment at the Service if the Secretary determines that the performance or misconduct of the covered individual warrants such an action. 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, as the Secretary determines appropriate; and a reduction of the annual rate of pay of the covered individual; or suspend the covered individual from the civil service (as defined in section 2101 of title 5, United States Code). Notwithstanding any other provision of law, any covered individual subject to a demotion by means of a reduction in grade under subsection (b)(2)(B) shall, beginning on the date of the demotion, receive the annual rate of pay applicable to the reduced grade. A covered individual subject to a demotion under subsection (b)(2)(B)— 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 (b)(2)(B) does not report for duty (and has not received approval to use accrued unused leave under subparagraph (A)(ii)), the covered individual shall not receive pay or other benefits pursuant to subsection (e)(7). A covered individual who is the subject of an action or removal, as applicable, under subsection
(b)is entitled— to advance notice of the action or removal; to access a file containing all evidence in support of the proposed action or removal; to be represented by an attorney or other representative of the covered individual’s choice; and to grieve the decision on the action or removal under paragraph
(2)in accordance with the internal grievance process established by the Secretary under paragraph (3). The aggregate period for notice, response, and a final decision on an action under subsection
(b)may not exceed 15 business days. A covered individual receiving a notice under paragraph (1)(A) of an action or removal under subsection
(b)shall have not more than 7 business days to respond to the notice. The Secretary shall issue a final and conclusive decision on an action or removal under subsection
(b)not later than 15 business days after the date on which the notice of the action is received by the applicable covered individual under paragraph (1)(A). A decision under clause (i)— shall be in writing; and shall include the specific reasons for the decision. The Secretary shall establish an internal grievance process under which a covered individual may grieve a decision issued under paragraph
(2)not later than the date that is 7 business days after the date on which the decision under that paragraph was issued. The Secretary shall issue a decision for which an internal grievance process is initiated under subparagraph
(A)not later than 21 business days after the date on which the grievance process is initiated by the covered individual. A grievance decision under this paragraph shall be final and conclusive. The procedures under this subsection shall supersede any collective bargaining agreement to the extent that such an agreement is inconsistent with the procedures. The procedures under chapter 43 of title 5, United States Code, shall not apply to an action under subsection (b). Subject to subparagraph
(B)and subsection (e), any removal, demotion, or suspension of more than 14 days under subsection
(b)may be appealed to the Merit Systems Protection Board, which shall refer such appeal to an administrative law 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 the appeal is made not later than 10 business days after the date of the removal, demotion, or suspension. On receipt of an appeal under subsection (d)(6)(A), the applicable administrative law judge shall— expedite the appeal under section 7701(b)(1) of title 5, United States Code; and issue a final and complete decision on the appeal 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 law judge shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection
(b)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 to remove, demote, or suspend an employee under subsection
(b)is supported by substantial evidence, the administrative law judge shall not mitigate the penalty prescribed by the Secretary. The decision of the administrative law 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
(b)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 an administrative law judge cannot issue a final and complete decision by the deadline described in paragraph (1)(B), the Merit Systems Protection Board shall, not later than 14 business days after the deadline expires, submit to the appropriate committees of Congress a report that explains the reasons why a decision was not issued by the deadline. 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 that section. The Merit Systems Protection Board may not stay any removal or demotion under subsection (b), except as provided in section 1214(b) of title 5, United States Code. During the period described in clause (ii), a covered individual may not receive any pay and benefits described in subparagraph (B). The period referred to in clause
(i)is the period— beginning on the date on which a covered individual appeals under this section a removal from the civil service under subsection (b)(2)(A); and ending on the later of— the date on which the Merit Systems Protection Board issues a final decision on the appeal under paragraph (3); and the date on which the United States Court of Appeals for the Federal Circuit issues a final decision on the appeal under paragraph (5). The pay and benefits referred to in subparagraph (A)(i) are 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 described in subsection
(d)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 the covered individual under subsection
(b)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 (b), to the maximum extent practicable, the Secretary shall fill the vacancy arising as a result of the removal or demotion. . 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, as appropriate, shall submit to Congress a report that includes information on— the number of employees of the Indian Health Service who were removed, demoted, or suspended during the 1-year period preceding the date of enactment of this Act; the number of employees of the Indian Health Service who were removed, demoted, or suspended during the 1-year period beginning on the date of enactment of this Act pursuant to the amendments made by this section; and the appropriate details of any such 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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