Representing VA Employees in Disciplinary Appeals Board Hearings

By John V. Berry, Esq., www.berrylegal.com

We represent and defend medical professionals before the Department of Veterans Affairs (VA) through the Disciplinary Appeals Board (DAB) process, nationwide. The DAB is a unique hearing process and counsel is needed by a physician, nurse or other medical professionals when a disciplinary case like this is pending.  This article discusses the DAB process as it currently exists.

The DAB process applies to “Title 38” employees, under 38 U.S.C. 7401, which includes physicians, dentists, podiatrists, chiropractors, optometrists, nurses, nurse anesthetists, physicians assistants and expanded function dental auxiliaries. A DAB hearing is available to these types of VA employees when a disciplinary action (major adverse action, e.g. termination or reduction in grade) involves a question of professional conduct or competence. This is distinguished from cases that involve other types of misconduct, not related to professional conduct or competence, such as general misconduct (e.g. alleged theft, use of inappropriate language, AWOL, etc). The DAB processing rules, which are ever-changing, are shown here.

First Step – Proposal for Discipline

Typically, the first step in the process towards a VA DAB hearing is for a medical professional to be proposed for serious discipline. One example might involve a physician charged with gross negligence in conducting a medical procedure on a patient, or perhaps a nurse that has allegedly not performed their duties to the proper standard of care (not providing correct medications to a patient). In such a case, the medical professional will receive a proposed notice of removal, demotion, etc. and will then be given a deadline in which to respond. These deadlines are now very short and usually are set at 7 business days pursuant to statute. The individual can respond to the proposed action through a written response and/or an oral response meeting.  We usually recommend both types of responses to clients.

Second Step – Decision on Proposed Discipline

Following the response to the proposal for discipline, a decision by the deciding official will be made. If the decision upholds the proposed discipline, the action will be sustained.  The medical professional employee will then have appeal rights which are provided to them in the decision. Next, the medical professional will have a very short period of time in which to file an appeal and request a Disciplinary Appeals Board Hearing. According to some recent changes to statute, an appeal must usually be received within 7 business days.  Once the appeal is filed, the process for the appeal will then begin.

Third Step – The VA DAB Pre-Hearing Process

If the request for a Disciplinary Appeals Board (DAB) hearing is accepted by the VA, a 3-person panel of members will be provided. Once the Disciplinary Appeals Board has been impaneled by the VA, a notice will go out to both the Appellant and the Agency’s attorney about the procedures to be observed.  The notice will set various deadlines, including witness and motion deadlines. Sometimes, these deadlines can be extended, by motion. The DAB consists of 3 voting members (including a chairman, secretary, and another voting member) and a technical advisor. Often, the Agency attorney and the Appellant’s attorney will interact mostly with the Technical Advisor in the early stages of the case.

During the pre-hearing meeting, arguments over the relevance of witnesses can then be heard by the DAB and other issues about the hearing can be discussed. Shortly thereafter, a ruling by the DAB will be received by the parties and the list of approved witnesses will be finalized. Witnesses employed by the VA can be compelled to attend. Other approved witnesses will have to come voluntarily. In the case where a witness is also a patient, then other procedures may have to be taken in order to ensure that witness can testify under VA regulations.

Fourth Step – The DAB Hearing 

The DAB is usually held at the closest facility where the employee was assigned. On the day of the hearing (which can last one to multiple days), a hearing room will be assigned. A court reporter will be present and both the Agency counsel and Appellant (and their counsel) will have tables for the hearing. The VA has the burden of proof, by a preponderance of the evidence, and will put on their case first.  Both sides will have the opportunity for opening statements. After the Agency finishes calling its witnesses, then the Appellant will have the ability to present their approved witnesses. At the conclusion of testimony and the presentation of exhibits, the parties can then present closing arguments. Following this step, the DAB will discuss the case amongst themselves and then issue a decision.

Next Steps

Following a hearing by the DAB, a decision will usually be given quickly.  If any charges are sustained, in whole or part, the DAB can approve the action as is or modify or reduce the action. Following a vote by the members, they will fill out a Form 10-2543.  Following the DAB ruling, the Undersecretary for Health may execute the DAB’s decision, unless they find it clearly contrary to the evidence or unlawful.  The DAB can order reinstatement, back pay, and other such remedies.  Subsequent appeals, if the Appellant loses, can be made through the court process.

Conclusion

When facing a VA Disciplinary Appeals Board (DAB) it is important to have the assistance and advice of counsel. If a medical professional needs such assistance, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on our Facebook and Twitter pages.

 

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