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Attorney D'Agostino Discusses Proposed Title 38 Change

Written by: Federal Practice Group
Written by: Federal Practice Group

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In early March, the former director of the Phoenix VA Health Care System, Sharon Helman, pled guilty to filing a false financial disclosure after she was fired in 2014 for manipulating data to cover up long wait times among other misconduct.

An administrative judge with the Merit Systems Protection Board (MSPB) upheld the removal based on the charge of failing to report gifts from lobbyists. This case has brought to public attention the issue of SES members who are classified under Title V – but the proposed solution may cause bigger problems.


Title 38, created just after World War II, permitted the VA to pay doctors, dentists, and others who engage in patient care more than the general schedule to make employment at the VA attractive but also established a peer review process for covered employees accused of misconduct instead of affording them MSPB appeal rights. Robert McDonald, Secretary of Veterans Affairs, is seeking to convert the VA’s Title V senior executives to Title 38 despite that they do not engage in patient care. Rather than appealing adverse actions to the Merit Systems Protection Board, they would instead appeal through an internal process yet to be identified by the Secretary.

Our own Debra D’Agostino commented on the matter for Federal News Radio, as she believes this change is misdirected and would not solve any of the VA’s headaches. Title 38’s existing peer review process is a poor fit for those involved in the management of operations and finances, and there is no basis for depriving members of the SES of their due process rights.

Furthermore, the removal of certain civil service protections would dramatically disincentive others from working for the VA. While proposed changes would increase the salary of VA SES members, Attorney D’Agostino says this is hardly a motivating factor, as the pay would still be a fraction compared to private sector administrators. The VA has plenty of issues to deal with, and the conversion to Title 38 could create even more.

Read more of Attorney D'Agostino's commentary at Federal News Radio.

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