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By Will Racke
The former director of the Veterans Affairs (VA) hospital in Phoenix, who was dismissed amid a scandal over delayed care, must be given a chance to contest her firing before a government panel, a federal court ruled Tuesday.
The Court of Appeals for the Federal Circuit said a provision of federal law unfairly denied Sharon Helman’s right to an appeal with the Merit Systems Protection Board (MSPB), which governs the procedures for hiring and firing federal employees.
The ruling doesn’t automatically reinstate Helman at the VA, but her case will now be referred to the MSPB for further review and “appropriate action,” the Arizona Republic reported.
The VA originally fired Helman in 2015 under a section of the Veterans Access, Choice and Accountability Act, which Congress enacted in order to expedite the removal of corrupt or incompetent VA executives. Based on that law, the MSPB refused to hear Helman’s appeal.
Appellate justices said that Helman’s expedited removal violated the Constitution’s “appointments clause” because it gave too much power to an administrative judge, reports the Arizona Republic. Instead, Helman’s case should have been referred to the MSPB, the court ruled.
Helman’s tenure as the head of the Phoenix VA hospital was cut short by scandal when employees reported that patients were dying in an overbooked appointment system and hospital officials were falsifying wait-time reports in order to collect performance bonuses. An investigation by the agency’s Office of Inspector General (OIG) subsequently confirmed the allegations in Phoenix and similar problems in other hospitals throughout the VA system.
During the OIG investigation, Helman pleaded guilty to an unrelated bribery charge for accepting more than $50,000 in gifts from a medical-industry lobbyist and friend. She was convicted in federal court in Phoenix and sentenced to probation.
Secretary of Veteran Affairs David Shulkin said Tuesday that Helman’s status remains unchanged for now, and he urged Congress to seek a legislative fix to the provisions of the Choice Act the appellate ruling deemed unconstitutional.
“Today’s ruling underscores yet again the need for swift congressional action to afford the Secretary effective and defensible authority to take timely and meaningful action against VA employees whose conduct or performance undermines Veterans’ trust in VA care or services,” Shulkin said in a statement.
The House of Representatives passed in March a bill called the VA Accountability First Act, which gives the VA secretary greater flexibility to suspend or remove senior VA employees based on misconduct. The measure is currently under consideration in the Senate Committee on Veterans’ Affairs.