Defending Veterans Affairs Employees Before Disciplinary Appeals Boards (DAB)
Our lawyers defend medical professionals before the Veterans Affairs Disciplinary Appeals Board. Certain federal employees that are employed by the Department of Veterans Affairs (VA) have the ability to challenge serious disciplinary actions through the VA Disciplinary Appeals Board (DAB) hearing process. DAB hearings are somewhat different than other federal employment appeals at the Merit Systems Protection Board (MSPB). Our lawyers represent medical professionals before the VA in employment disciplinary and credentialing actions before VA DABs. 
Title 38 VA Employees and Disciplinary Appeals Board Hearings
Pursuant to Title 38 of the U.S. Code, a DAB hearing is available only for certain types of medical professionals in certain types of cases. The VA has a number of different types of medical professionals who qualify for DAB hearings under Title 38. Some of these medical professionals include:
- Physicians;
- Registered Nurses;
- Dentists;
- Physician Assistants;
- Podiatrists;
- Optometrists;
- Chiropractors;
- Certified Registered Nurse Anesthetists; and
- Expanded-function dental auxiliaries.
Title 38 employees from the VA are regulated by medical ethics and state licensing boards. The DAB process was developed to evaluate complaints related to patient care and privacy issues.
The DAB Hearing Process
With respect to the DAB hearing process, there are a number of steps. These generally include the following:
- Filing of a Complaint;
- Investigation of Complaint;
- Notice of Proposed Disciplinary Action;
- Decision Issued by Deciding Official;
- Request for DAB Hearing;
- DAB Pre-Hearing Process;
- DAB Hearing;
- DAB Decision;
- DAB Decision Review by VA; and
- Other DAB Considerations Post-Decision.
Filing of a Complaint
The DAB process ultimately begins with a complaint, which can originate from multiple sources. The complaint can come from a patient, colleague or other source. Once a complaint is filed, it is evaluated for possible investigation by the VA. Many complaints eventually provide the basis for a disciplinary action against the medical provider. The following are three types of examples of complaints that might lead to an investigation.
- A patient files a complaint with the VA that their physician was negligent in their medical treatment;
- A patient alleges that a nurse assaulted them during a visit; or
- A physician reports improper care of a patient by another physician.
There are any given number of examples of the types of complaints that might lead to an investigation by the VA.
Investigation of Complaint
If the complaint is deemed significant enough by the VA, it will be investigated. An investigator will evaluate the complaint to determine if any further action is needed. This investigation may involve the taking of witness statements, review of provider notes, emails, video and other documents. If further action is warranted after the investigation, the VA may refer the investigation forward for potential disciplinary action. Additionally, the VA may also suspend clinical privileges for the medical professional.
Notice of Proposed Disciplinary Action
If proposed discipline is deciding upon, the VA will move forward with a notice of proposed disciplinary action. This is the first step in the potential DAB hearing process for Title 38 medical professionals at the VA. The notice will describe the alleged conduct at issue. Some examples of the type of alleged conduct for DAB cases includes: (1) Patient Care failures; (2) Privacy violations; and (3) Misconduct with patients. In the majority of these types of cases, the proposed action will involve a removal or serious suspension. The notice will provide information on all employee rights. These include the right to respond to the notice in writing and orally. The evidence that the proposed disciplinary action is based on is also available by request. This evidence is often referred to as the “materials relied upon.” Following the responses, a decision will be made by the designated VA Deciding Official. One of the difficulties at this stage is quickly finding a lawyer familiar with VA procedures given that you may only have 7 business days in which to respond. As a result, it is important to obtain counsel at the investigation stage if possible.
Disciplinary Decision
Following the written and oral responses, the Deciding Official will make a decision on the notice about whether to uphold the discipline. The typical timeframe for a decision is 15 business days from the date that the notice was issued. The proposed discipline can be upheld, lowered or dismissed. A final decision will then be issued by the Deciding Official, often with little explanation. The decision, if upheld, may include a revocation of clinical privileges. As noted, the most common type of action is a proposed removal that is upheld, with clinical privileges being revoked in the process. The Decision letter will also provide rights to appeal because the basis of the action involved professional conduct or competence. The Decision will provide the short timeframe in which to appeal (7 business days) and to request a DAB hearing.
Request for DAB Hearing
The process for the initial filing of an appeal to the DAB is not difficult, but the timing is very important. The employee may request a hearing before the Board. Any such request must be submitted in writing and accompany the employee’s notice of appeal. The appeal must usually contain (1) the appellant’s name, address, telephone number, designation of representative, (2) a copy of the notice of action proposed and decision letter, (3) a statement as to whether the employee is requesting a hearing before the DAB, (4) why the appellant believes the major disciplinary action taken was in error or should not have been taken, and (5) a statement describing the expected relief. This is typically submitted to the Under Secretary for Health or their designee. Typically, the request must be submitted within 7 business days to the VA designated official.
The DAB Pre-Hearing Process
After the request for a DAB hearing has been received and accepted, the VA will appoint a panel to hear the case. The employee or their attorney will receive a DAB appointment letter. The DAB panel will consist of three individual professionals, likely with relevant background experience. There will be a chair, secretary and member named for the DAB Hearing. There will also be a technical advisor named for the hearing. The DAB hearing panel will set forth the procedures for the hearing. At the start of the DAB process, the hearing panel will also schedule a pre-hearing meeting to go over the procedures and issues in advance of the DAB hearing. The first decision that the DAB will make is whether or not the disciplinary action involves patient care or competence. If not, the DAB may not have jurisdiction. However, that is typically not an issue.
Before the pre-hearing, the VA attorney and the employee’s attorney will submit proposed witnesses and exhibits for consideration. The DAB pre-hearing meeting issues will usually include:
1. The Issues for the Hearing;
2. The Proposed Witnesses for the Hearing;
3. Consideration of Exhibits and Motions by the DAB;
4. The DAB Hearing dates; and
5. Potential Settlement.
The VA will usually be represented by their own legal counsel during the DAB hearing. During the DAB pre-hearing process, there is the potential to resolve the case early by negotiating with appointed VA counsel, where possible.
The DAB Hearing
The DAB hearing typically lasts 1-2 days, depending on the issues involved and number of witnesses. The hearing is usually held at the employee’s work location or by videoconference. The VA has the burden of proof to show that the charges are true by a preponderance of the evidence. This means that the VA attorney has to prove that the charges are more likely than not to have happened. The DAB hearing will be transcribed and will typically start with an introduction by the Chairperson. This will be followed by opening statements. The VA attorney will give their opening statement first as they have the burden of proof. This will be followed by employee’s counsel giving an opening statement (or the employee if they are not represented).
After opening statements, the VA will call their witnesses in support of the disciplinary case. Each witness will be examined, cross-examined and then can be further questioned by DAB members. Once the VA attorney has finished their case, the employee can call defense witnesses for testimony. These witnesses will also be cross-examined by VA counsel and examined by DAB hearing members. Once the testimony at the DAB hearing has finished, both sides can providing closing statements. After the closing statements are given, the proceeding will be concluded by the DAB Chairperson. Unless otherwise specified, the record will then be closed.
The DAB Decision
Following the DAB hearing, the DAB will issue a decision. The DAB will convene in a closed session to reach a decision on both the charges and the penalty. Subsequently, the members of the DAB will then vote on the findings. The decision will be determined by the majority of the 3 voting members. The DAB is supposed to reach a decision within 45 calendar days of completion of the DAB hearing. In any event, a DAB hearing decision should be made no later than 120 calendar days after the appeal is received by the Under Secretary for Health or their designee. In ruling, the DAB will either uphold the disciplinary charges or find that they be reversed. The DAB can mitigate the penalty. Once the decision is finalized, the DAB will then complete a VA Form 10-2543 with the reasoning for their decision. The DAB decision will then be forwarded to the Under Secretary for Health or their designee for review and implementation.
DAB Decision Review by VA
When the DAB issues their ruling, the Under Secretary for Health or their designee will receive it for implementation, but has the authority to reverse or mitigate it. The Under Secretary for Health can order backpay, award attorneys fees, expungement and other remedies related to the disciplinary action. If the DAB decision and Under Secretary review are unfavorable, the individual can attempt to appeal the decision to the courts.
Other DAB Considerations Post-Decision
If successful at the DAB hearing, an employee can petition for the payment of attorneys fees. This typically would occur following review by the Under Secretary for Health (or their designee) of the underlying decision. Additionally, if professional issues have been raised to a medical board about a medical provider’s patient care, a positive ruling can be sent to those boards to move to resolve the local license issues.
Contact Us
Our law firm represents and advises VA employees in DAB hearings, disciplinary cases and privileges issues. If you need legal assistance regarding an employment matter with the VA, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
