38 U.S.C. § 323 — Office of Accountability and Whistleblower

Page 75 TITLE 38—VETERANS’ BENEFITS § 323 2018—Subsec. (d)(4). Pub. L. 115–251 substituted ‘‘2020’’ for ‘‘2019’’. 2017—Subsec. (d)(4). Pub. L. 115–62 substituted ‘‘2019’’ for ‘‘2017’’. 2016—Subsec. (d)(1). Pub. L. 114–223 substituted ‘‘al- lowance to—’’ for ‘‘allowance to’’, inserted subpar. (A) designation before ‘‘a veteran with a disability’’, and added subpar. (B). Subsec. (d)(4). Pub. L. 114–228 substituted ‘‘2017’’ for ‘‘2016’’. 2015—Subsec. (d)(4). Pub. L. 114–58 substituted ‘‘2016’’ for ‘‘2015’’. 2013—Subsec. (b)(4). Pub. L. 113–59, § 4(b), substituted ‘‘cooperate with entities with significant experience in managing large-scale adaptive sports programs;’’ for ‘‘cooperate with the United States Olympic Committee and its partners to promote the participation of dis- abled veterans and disabled members of the Armed Forces in sporting events sponsored by the United States Olympic Committee and its partners;’’. Pub. L. 113–37, § 2(a)(2), substituted ‘‘United States Olympic Committee’’ for ‘‘United States Paralympics, Inc.,’’ in two places. Subsec. (d)(1). Pub. L. 113–37, § 2(a)(2), substituted ‘‘United States Olympic Committee’’ for ‘‘United States Paralympics, Inc.,’’ wherever appearing. Subsec. (d)(4). Pub. L. 113–59, § 4(a), substituted ‘‘through 2015.’’ for ‘‘through 2013 and $500,000 for the period beginning October 1, 2013, and ending December 31, 2013.’’ Pub. L. 113–37, § 2(a)(1), inserted ‘‘and $500,000 for the period beginning October 1, 2013, and ending December 31, 2013’’ before period at end. Subsecs. (e), (f). Pub. L. 113–59, § 4(c), added subsec. (e) and redesignated former subsec. (e) as (f). Statutory Notes and Related Subsidiaries CHANGE OF NAME References to the United States Olympic Committee deemed to refer to the United States Olympic and Paralympic Committee, see section 220502(c) of Title 36, Patriotic and National Observances, Ceremonies, and Organizations. EFFECTIVE DATE OF 2013 AMENDMENT Pub. L. 113–37, § 4, Sept. 30, 2013, 127 Stat. 525, provided that: ‘‘(a) EFFECTIVE DATE.—This Act [see Short Title of 2013 Amendment note set out under section 101 of this title] shall take effect on October 1, 2013, except that Section [sic] 2(a) [amending this section] shall take ef- fect on September 30, 2013. ‘‘(b) RATIFICATION.—If this Act is not enacted on or before September 30, 2013, any actions undertaken by the Department of Veterans Affairs under the authori- ties extended by this Act during the period beginning on such date and ending on the date of the enactment of this Act [Sept. 30, 2013] shall be deemed ratified.’’ FINDINGS AND PURPOSE Pub. L. 110–389, title VII, § 701, Oct. 10, 2008, 122 Stat. 4180, provided that: ‘‘(a) FINDINGS.—Congress makes the following find- ings: ‘‘(1) In 1998, Congress enacted the Olympic and Amateur Sports Act Amendments of 1998 (33 [36] U.S.C. 101 note) [see Short Title of 1998 Amendment note set out under section 101 of Title 36, Patriotic and National Observances, Ceremonies, and Organiza- tions], which amended chapter 2205 of title 36, United States Code, and included a statement that the pur- pose of the Act was ‘to encourage and provide assist- ance to amateur athletic programs and competition for amateur athletes with disabilities, including, where feasible, the expansion of opportunities for meaningful participation by such amateur athletes in programs of athletic competition for able-bodied amateur athletes’. ‘‘(2) The United States Olympic Committee [now United States Olympic and Paralympic Committee] manages and administers the Paralympic Program for physically disabled athletes. ‘‘(3) The Department of Veterans Affairs provides health care to veterans and administers recreational activities for patients including the Golden Age Games, the National Veterans Wheelchair Games, and the Winter Sports Clinic. ‘‘(4) In 2005, the United States Olympic Committee [now United States Olympic and Paralympic Com- mittee] entered into a memorandum of understanding with the Secretary of Veterans Affairs to increase in- terest in and access to Paralympic sports programs for veterans with physical disabilities by coordi- nating the activities of the United States Olympic Committee with the Department of Veterans Affairs. ‘‘(5) The Paralympic Program has a significant positive effect on the quality of life of disabled vet- erans and disabled members of the Armed Forces who participate in the program, including helping to im- prove the mobility, vitality, and physical, psycho- logical, and social well-being of such participants and reducing the incidence of secondary medical condi- tions in those participants. ‘‘(6) Because of Operation Iraqi Freedom and Oper- ation Enduring Freedom, the number of disabled vet- erans and disabled members of the Armed Forces has increased substantially and it is therefore desirable to supplement the rehabilitation and recreation pro- grams of the Department of Veterans Affairs through sports for disabled veterans and members of the Armed Forces. ‘‘(b) PURPOSE.—The purposes of this title [enacting this section, section 521A of this title, and provisions set out as notes under section 521A of this title] are as follows: ‘‘(1) To promote the lifelong health of disabled vet- erans and disabled members of the Armed Forces through regular participation in physical activity and sports. ‘‘(2) To enhance the recreation activities provided by the Department of Veterans Affairs by promoting disabled sports from the local level through elite lev- els and by creating partnerships among organizations specializing in supporting, training, and promoting programs for disabled veterans. ‘‘(3) To provide training and support to national and local organizations to provide Paralympic sports training to disabled veterans and disabled members of the Armed Forces in their own communities. ‘‘(4) To provide support to the United States Paralympics, Inc., to increase the participation of disabled veterans and disabled members of the Armed Forces in sports.’’ § 323. Office of Accountability and Whistleblower Protection (a) ESTABLISHMENT.—There is established in the Department an office to be known as the ‘‘Office of Accountability and Whistleblower Protection’’ (in this section referred to as the ‘‘Office’’). (b) HEAD OF OFFICE.—(1) The head of the Office shall be responsible for the functions of the Of- fice and shall be appointed by the President pur- suant to section 308(a) of this title. (2) The head of the Office shall be known as the ‘‘Assistant Secretary for Accountability and Whistleblower Protection’’. (3) The Assistant Secretary shall report di- rectly to the Secretary on all matters relating to the Office. (4) Notwithstanding section 308(b) of this title, the Secretary may only assign to the Assistant Secretary responsibilities relating to the func- tions of the Office set forth in subsection (c). Page 76 TITLE 38—VETERANS’ BENEFITS § 323 (c) FUNCTIONS.—(1) The functions of the Office are as follows: (A) Advising the Secretary on all matters of the Department relating to accountability, in- cluding accountability of employees of the De- partment, retaliation against whistleblowers, and such matters as the Secretary considers similar and affect public trust in the Depart- ment. (B) Issuing reports and providing rec- ommendations related to the duties described in subparagraph (A). (C) Receiving whistleblower disclosures. (D) Referring whistleblower disclosures re- ceived under subparagraph (C) for investiga- tion to the Office of the Medical Inspector, the Office of Inspector General, or other investiga- tive entity, as appropriate, if the Assistant Secretary has reason to believe the whistle- blower disclosure is evidence of a violation of a provision of law, mismanagement, gross waste of funds, abuse of authority, or a sub- stantial and specific danger to public health or safety. (E) Receiving and referring disclosures from the Special Counsel for investigation to the Medical Inspector of the Department, the In- spector General of the Department, or such other person with investigatory authority, as the Assistant Secretary considers appropriate. (F) Recording, tracking, reviewing, and con- firming implementation of recommendations from audits and investigations carried out by the Inspector General of the Department, the Medical Inspector of the Department, the Spe- cial Counsel, and the Comptroller General of the United States, including the imposition of disciplinary actions and other corrective ac- tions contained in such recommendations. (G) Analyzing data from the Office and the Office of Inspector General telephone hotlines, other whistleblower disclosures, disaggregated by facility and area of health care if appro- priate, and relevant audits and investigations to identify trends and issue reports to the Sec- retary based on analysis conducted under this subparagraph. (H) Receiving, reviewing, and investigating allegations of misconduct, retaliation, or poor performance involving— (i) an individual in a senior executive posi- tion (as defined in section 713(d) of this title) in the Department; (ii) an individual employed in a confiden- tial, policy-making, policy-determining, or policy-advocating position in the Depart- ment; or (iii) a supervisory employee, if the allega- tion involves retaliation against an em- ployee for making a whistleblower disclo- sure. (I) Making such recommendations to the Secretary for disciplinary action as the Assist- ant Secretary considers appropriate after sub- stantiating any allegation of misconduct or poor performance pursuant to an investigation carried out as described in subparagraph (F) or (H). (2) In carrying out the functions of the Office, the Assistant Secretary shall ensure that the Of- fice maintains a toll-free telephone number and Internet website to receive anonymous whistle- blower disclosures. (3) In any case in which the Assistant Sec- retary receives a whistleblower disclosure from an employee of the Department under paragraph (1)(C), the Assistant Secretary may not disclose the identity of the employee without the con- sent of the employee, except in accordance with the provisions of section 552a of title 5, or as re- quired by any other applicable provision of Fed- eral law. (d) STAFF AND RESOURCES.—The Secretary shall ensure that the Assistant Secretary has such staff, resources, and access to information as may be necessary to carry out the functions of the Office. (e) RELATION TO OFFICE OF GENERAL COUN- SEL.—The Office shall not be established as an element of the Office of the General Counsel and the Assistant Secretary may not report to the General Counsel. (f) REPORTS.—(1)(A) Not later than June 30 of each calendar year, beginning with June 30, 2017, the Assistant Secretary shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report on the activi- ties of the Office during the calendar year in which the report is submitted. (B) Each report submitted under subparagraph (A) shall include, for the period covered by the report, the following: (i) A full and substantive analysis of the ac- tivities of the Office, including such statistical information as the Assistant Secretary con- siders appropriate. (ii) Identification of any issues reported to the Secretary under subsection (c)(1)(G), in- cluding such data as the Assistant Secretary considers relevant to such issues and any trends the Assistant Secretary may have iden- tified with respect to such issues. (iii) Identification of such concerns as the Assistant Secretary may have regarding the size, staffing, and resources of the Office and such recommendations as the Assistant Sec- retary may have for legislative or administra- tive action to address such concerns. (iv) Such recommendations as the Assistant Secretary may have for legislative or adminis- trative action to improve— (I) the process by which concerns are re- ported to the Office; and (II) the protection of whistleblowers with- in the Department. (v) Such other matters as the Assistant Sec- retary considers appropriate regarding the functions of the Office or other matters relat- ing to the Office. (2) If the Secretary receives a recommendation for disciplinary action under subsection (c)(1)(I) and does not take or initiate the recommended disciplinary action before the date that is 60 days after the date on which the Secretary re- ceived the recommendation, the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Af- fairs of the House of Representatives a detailed justification for not taking or initiating such disciplinary action. Page 77 TITLE 38—VETERANS’ BENEFITS § 324 1 So in original. Probably should be ‘‘639(b));’’. (g) DEFINITIONS.—In this section: (1) The term ‘‘supervisory employee’’ means an employee of the Department who is a su- pervisor as defined in section 7103(a) of title 5. (2) The term ‘‘whistleblower’’ means one who makes a whistleblower disclosure. (3) The term ‘‘whistleblower disclosure’’ means any disclosure of information by an em- ployee of the Department or individual apply- ing to become an employee of the Department which the employee or individual reasonably believes evidences— (A) a violation of a law, rule, or regula- tion; or (B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substan- tial and specific danger to public health or safety. (Added Pub. L. 115–41, title I, § 101(a), June 23, 2017, 131 Stat. 863.) § 324. Cost of War Toxic Exposures Fund (a) ESTABLISHMENT.—There is hereby estab- lished in the Treasury of the United States an account to be known as the ‘‘Cost of War Toxic Exposures Fund’’ (the ‘‘Fund’’), to be adminis- tered by the Secretary. (b) DEPOSITS.—There shall be deposited in the Fund such amounts as may be appropriated to the Fund pursuant to subsection (c). (c) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated to the Fund for fiscal year 2023 and each subsequent fiscal year such sums as are necessary to increase funding, over the fiscal year 2021 level, for investment in— (1) the delivery of veterans’ health care asso- ciated with exposure to environmental hazards in the active military, naval, air, or space service in programs administered by the Under Secretary for Health; (2) any expenses incident to the delivery of veterans’ health care and benefits associated with exposure to environmental hazards in the active military, naval, air, or space service, including administrative expenses, such as in- formation technology and claims processing and appeals, and excluding leases as author- ized or approved under section 8104 of this title; and (3) medical and other research relating to exposure to environmental hazards. (d) BUDGET SCOREKEEPING.—(1) Immediately upon enactment of the Sergeant First Class Heath Robinson Honoring our Promise to Ad- dress Comprehensive Toxics Act of 2022, ex- penses authorized to be appropriated to the Fund in subsection (c) shall be estimated for fis- cal year 2023 and each subsequent fiscal year and treated as budget authority that is considered to be direct spending— (A) in the baseline for purposes of section 257 of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 907); (B) by the Chairman of the Committee on the Budget of the Senate and the Chair of the Committee on the Budget of the House of Rep- resentatives, as appropriate, for purposes of budget enforcement in the Senate and the House of Representatives; (C) under the Congressional Budget Act of 1974 (2 U.S.C. 621 et seq.), including in the re- ports required by section 308(b) of such Act (2 U.S.C. 639); 1 and (D) for purposes of the Statutory Pay-As- You-Go Act of 2010 (2 U.S.C. 931 et seq.). (2) No amount appropriated to the Fund in fis- cal year 2023 or any subsequent fiscal year pur- suant to this section shall be counted as discre- tionary budget authority and outlays or as di- rect spending for any estimate of an appropria- tion Act under the Congressional Budget and Impoundment Control Act of 1974 (2 U.S.C. 621 et seq.) and any other Act. (3) Notwithstanding the Budget Scorekeeping Guidelines and the accompanying list of pro- grams and accounts set forth in the joint ex- planatory statement of the committee of con- ference accompanying Conference Report 105–217, and for purposes of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 900 et seq.) and the Congressional Budget Act of 1974 (2 U.S.C. 621 et seq.), the Fund shall be treated as if it were an account designated as ‘‘Appropriated Entitlements and Mandatories for Fiscal Year 1997’’ in the joint explanatory statement of the committee of conference ac- companying Conference Report 105–217. (e) ESTIMATES FOR CONGRESSIONAL CONSIDER- ATION.—The Secretary shall include in docu- ments submitted to Congress in support of the President’s budget submitted pursuant to sec- tion 1105 of title 31 detailed estimates of the sums described in subsection (c) for the applica- ble fiscal year. (f) PROCEDURES FOR ESTIMATES.—The Sec- retary may, after consultation with the Com- mittee on Appropriations of the Senate and the Committee on Appropriations of the House of Representatives, establish policies and proce- dures for developing the annual detailed esti- mates required by subsection (e). (Added Pub. L. 117–168, title VIII, § 805(a), Aug. 10, 2022, 136 Stat. 1804.) Editorial Notes REFERENCES IN TEXT The Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022, referred to in subsec. (d)(1), is Pub. L. 117–168, Aug. 10, 2022, 136 Stat. 1759, also known as the Honoring our PACT Act of 2022. For complete classification of this Act to the Code, see Short Title of 2022 Amendment note set out under section 101 of this title and Tables. The Congressional Budget Act of 1974, referred to in subsec. (d)(1)(C), (3), is titles I through IX of Pub. L. 93–344, July 12, 1974, 88 Stat. 298. For complete classi- fication of this Act to the Code, see Short Title note set out under section 621 of Title 2, The Congress, and Tables. The Statutory Pay-As-You-Go Act of 2010, referred to in subsec. (d)(1)(D), is title I of Pub. L. 111–139, Feb. 12, 2010, 124 Stat. 8, which is classified principally to chap- ter 20A (§ 931 et seq.) of Title 2, The Congress. For com- plete classification of this Act to the Code, see Short Title note set out under section 931 of Title 2 and Ta- bles. The Congressional Budget and Impoundment Control Act of 1974, referred to in subsec. (d)(2), is Pub. L.