Title 38 Employee Discipline: What VA Employees Need to Know About the Disciplinary Appeals Board
If you are a Title 38 federal healthcare employee facing discipline, your rights and procedures are different from those of most other federal workers. For instance:
- Disciplinary actions usually skip the Merit Systems Protection Board (MSPB) and go directly to the Disciplinary Appeals Board (DAB).
- The DAB uses its own procedures and evidentiary standards, with a three-member panel issuing binding decisions after considering testimony and evidence.
- Title 38 employees can face:
- Extended probationary periods
- Irregular working hours, and
- A unique appeals process when the DAB orders serious adverse actions like removal, suspension, or demotion.
The outcome of a DAB hearing can determine the status of your employment, professional reputation, and even financial recovery if the discipline decision is reversed. Because the DAB process is complex and adversarial, it is vital to have experienced legal counsel at your side every step of the way.
The experienced federal employment attorneys at Capovilla & Williams are fully equipped to guide you through Title 38 issues and represent you before the DAB. With years of experience representing federal employees and a deep familiarity with federal agency procedures and appeals boards, the Capovilla & Williams attorneys can help you protect your rights and achieve the best possible outcome for your case. Call 866-951-0466 or contact us online today for a free consultation.
What is Title 38?
Title 38 of the United States Code governs the employment and labor rules specifically for certain federal employees who work primarily within the VA. This section of the federal law outlines regulations and benefits for those serving in positions tied to Veterans’ healthcare, medical, dental, and research services. Professionals under Title 38 include:
- Physicians
- Dentists
- Podiatrists
- Optometrists
- Registered Nurses
- Nurse Anesthetists
- Physician Assistants
- Expanded-function dental auxiliaries
Unlike Title 5 employees, Title 38 professionals face extended probationary periods (usually 2 years) and may be required to work non-standard hours to meet the demands of continuous hospital and clinical care. These operational rules support flexible recruitment and retention in a highly competitive healthcare industry.
Title 38 employees are also subject to:
- Unique appointment and hiring procedures.
- More restrictive protections during probation.
- Distinct appeals processes for discipline.
- Non-standard scheduling and overtime.
- Limited recourse through MSPB.
Unique Employment Protections and Challenges
Title 38 employees receive several unique employment protections designed to balance the relentless staffing demands of medical facilities with employee rights. For instance, these medical professionals often work non-standard hours and may be required to provide 24/7 coverage, reflecting the continuous nature of medical care for Veterans. However, despite these protections, Title 38 employees also face distinct challenges, including an extended two-year probationary period that makes them especially susceptible to termination without traditional federal due process during that time.
One major challenge for Title 38 employees is the appeals process for discipline. Unlike their Title 5 counterparts, who can file appeals with the MSPB, Title 38 workers must contest adverse actions through their employer’s DAB. This employer-controlled process can involve complex hearings and makes contesting terminations, suspensions, pay reductions and license revocations more difficult.
Nevertheless, Title 38 employees retain key protections under federal law, including:
- Anti-discrimination and anti-harassment rights.
- Retaliation safeguards for whistleblowers.
- Right to request reasonable accommodations for disabilities.
- Many workplaces have collective bargaining agreements and review boards.
Understanding these rights is essential for anyone facing investigation or disciplinary action under Title 38.
The Disciplinary Appeals Board Explained
The DAB is a specialized three-person panel that reviews major adverse actions taken against Title 38 employees, especially those involving professional competence or conduct. DAB members are peers or specialists of equal or higher grade, typically with expertise matching the employee’s clinical field. This ensures disciplinary decisions are made by professionals who understand the standards of medical malpractice.
Cases heard by the DAB include actions such as removal, suspension, or demotion for alleged failures in:
- Patient care
- Privacy violations
- Misuse of property
- Other professional misconduct.
The DAB process includes pre-hearing conferences, formal evidentiary hearings with cross-examination, and a thorough deliberation period. The panel may:
- Sustain the proposed disciplinary action.
- Reduce the penalty to a lesser action.
- Overturn the action entirely and recommend reinstatement and back pay.
The DAB decision is binding within the VA system and often carries significant implications for an employee’s career, reputation, and licensure.
Common Disciplinary Actions Faced by Title 38 Employees
Title 38 employees are subject to a range of disciplinary actions, most frequently tied to professional conduct and clinical competence. Common adverse actions include:
- Written reprimands
- Loss of clinical privileges
- Pay reductions
- Suspension
- Demotion
- Termination
Reasons for discipline may include:
- Violations of patient privacy.
- Misuse of government equipment.
- Time-and-attendance fraud, such as unexcused absences or excessive tardiness.
- Inappropriate use of sick leave.
- Disruptive behavior in the workplace.
These infractions are assessed according to several factors, including the severity of the misconduct, prior disciplinary record, potential for rehabilitation, and any mitigating circumstances. Given the gravity of medical responsibilities, even minor infractions can trigger serious disciplinary measures.
It is also important for Title 38 staff to know that recommendations from Administrative Investigation Boards (AIBs) or internal reviews, while not directly imposing discipline, can heavily influence agency decisions regarding adverse action, which then go before the DAB. All these actions must be thoroughly documented and justified by management to withstand scrutiny at the DAB appeal level. For employees, understanding what triggers discipline and how it is evaluated can make all the difference when defending their rights and career prospects.
Navigating the Title 38 Appeals Process
Navigating the appeals process as a Title 38 employee requires precise procedural compliance and timely action. The process typically unfolds as follows:
- Notice of Proposed Discipline: The VA issues written notice detailing the alleged misconduct and proposed penalty.
- Employee Response: The employee typically has 5 calendar days to respond with evidence, witness testimony, or a written statement.
- Final Decision: After reviewing the response, a deciding official issues a disciplinary decision.
- Request for DAB Hearing: If the action is upheld, the employee must request a DAB hearing within seven calendar days. Missing this deadline forfeits appeal rights.
- Filing an Appeal: Appeals should include all relevant communications, decision letters, the grounds for contesting the action, and the desired remedy. The appeal is submitted to the Under Secretary for Health or their designee.
- DAB Assembly and Jurisdiction Review: A three-member panel with appropriate clinical expertise is convened. The board first determines if it has jurisdiction (i.e., if the matter involves professional competence or conduct).
- Pre-Hearing Conference: The DAB conducts an initial meeting to set timelines and address procedural issues.
- Formal Hearing: Both sides present their cases, evidence, and witnesses, with cross-examination often performed by agency lawyers.
- Decision: The DAB reviews all evidence and issues a binding written decision within roughly 120 days. Possible outcomes include reinstatement, mitigation, or upholding of the discipline imposed.
- After the DAB Decision: Although binding, limited judicial review may be available in federal court for certain cases, such as those involving discrimination or retaliation claims.
Timely documentation and legal representation are critical at each stage to preserve rights and strengthen the case.
How Capovilla & Williams Can Help
Capovilla & Williams stands ready to support Title 38 professionals facing disciplinary actions or complex appeals, drawing on a deep understanding of federal employment law and the unique challenges that medical employees encounter in the VA system. With firsthand experience at the intersection of regulatory compliance, clinical standards, and government employment, the attorneys at Capovilla & Williams deliver strategic counsel tailored to your individual circumstances. They know that defending your career against adverse actions is not just about legal arguments; it’s about protecting your livelihood, benefits, and reputation.
At every step, the firm’s attorneys advocate for your rights and interests, beginning with a thorough review of your official notices, correspondence, and disciplinary documents. Assistance includes guidance on preserving critical records, such as written communications with supervisors or HR, as well as strategies for responding to allegations, preparing compelling witness testimony, and organizing evidence to strengthen your case.
Capovilla & Williams also provides clarity on procedural requirements and deadlines, ensuring you do not miss key opportunities to appeal or seek relief. Whether you have questions about your rights, need advice on navigating a DAB hearing, or feel overwhelmed by the complexity of federal agency rules, their team offers straightforward, compassionate guidance.
If you are a Federal Employee facing disciplinary action, call 866-951-0466 or contact us online today for a free consultation.
