DAB process

If you are a federal employee, disciplinary actions may be something you never thought you would have to face. But whereas most federal employees appeal disciplinary actions only before the Merit Systems Protection Board, the VA disciplinary appeals process differs slightly.

Disciplinary Appeals Board (DAB) hearings address whether the employee demonstrated professional misconduct or incompetence. A DAB hearing features its own unique procedures and appeals process.

This article will focus on the DAB appeals process and basic DAB procedures. We’ll also touch on what kind of employees face disciplinary appeals board hearings. For more specific assistance, contact a VA federal employment attorney today. 

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Understanding the Relationship Between Title 38 Employees and the Disciplinary Appeals Board

Under Title 38, the disciplinary appeals board process applies to only certain medical professionals. A wide variety of VA professions fall under the DAB’s jurisdiction. 

Just a few of these professions include:

  • Audiologists,
  • Physicians,
  • Speech pathologists,
  • Dentists,
  • Pharmacy technicians,
  • Kenesiotherapists,
  • Podiatrists,
  • Physician assistants,
  • Optometrists, and
  • Registered nurses.

All these professions require their members to fulfill unique professional standards of care. For instance, physicians must follow a code of medical ethics and other highly specific duties relating to patient care and privacy. The DAB exists to evaluate complaints that members of these specific professions failed to fulfill their professional standards of care. Its jurisdiction does not include general disciplinary charges, such as being absent without official leave (AWOL), sleeping on the job, or committing insubordination. 

The DAB Appeals Process

There are four major steps of the DAB appeals process:

  • Notice of Proposed Discipline,
  • Decision Regarding Proposed Discipline,
  • The DAB Pre-Hearing Process, and
  • The DAB Hearing.

In some cases, you can submit further appeals after an unfavorable DAB decision. 

Notice of Discipline

The DAB appeals process begins when you receive a proposed notice of discipline. To be valid, the proposal notice must indicate the alleged misconduct (such as demonstrating negligence while caring for a patient) and the proposed disciplinary action.

The key here is that the issue must relate to patient care or professional competence. It must also inform you of your right to reply orally or in writing. In most cases, you have only a short time to respond. In fact, under current VA directives, you can have as few as five calendar days to defend yourself. If you receive a notice of discipline, it is vital you contact a legal representative immediately.  

Decision Regarding Proposed Discipline 

After you and your representative have replied orally and in writing to the notice, a deciding official will evaluate the evidence and your reply to make a decision regarding the proposed discipline.

The deciding official can choose to uphold the proposed penalty, impose a lesser penalty, or withdraw the proposed discipline entirely. Regardless of the final decision, you and your representative will be notified via a written decision letter.

The decision letter will provide a brief explanation of the final decision and the reasons for the final outcome. It will also include language explaining your right to appeal to the DAB. Generally, you have 7 days to file an appeal of the final disciplinary decision to the DAB. In almost all cases, the Board will dismiss late filings.

DAB Pre-Hearing Process

After you and your representative have filed a written DAB appeal, the VA will assemble a three-person panel. The panel—composed of fellow professionals of similar grade to you—will consider whether you fulfilled your professional standard of care. Before the hearing, there will be a pre-hearing meeting to consider the issues of the appeal. 

During the pre-hearing meeting, the parties will discuss various issues, including:

  • Proposed witnesses,
  • Outstanding procedural motions, 
  • Scheduling the hearing, and
  • Settlement.

With a qualified legal representative negotiating on your behalf, you may be able to come to a favorable settlement with your employer before the DAB hearing. 

DAB Hearing

During the hearing, the VA must demonstrate that the preponderance of evidence shows you committed the alleged behavior. Because it has the burden of proof, the VA will present its case first.

The hearing will begin with opening statements and continue with the VA’s witnesses. You (or your representative) will have the chance to cross-examine all witnesses brought by the VA. After the VA concludes its case, you will receive the opportunity to present your witnesses. The hearing will then wrap up with closing arguments from both parties. 

Shortly after the end of the hearing, the DAB will provide a decision. The decision will either sustain the discipline or overturn it. If you prevail, the DAB can force the VA to reinstate you and provide you with back pay. 

Contact an Experienced VA Federal Employment Attorney for Help Protecting Your Career

Here at Pines Federal, our passion is protecting the careers and lives of federal employees. Don’t gamble with your future by going unrepresented at a DAB hearing.

Our attorneys have over 50 years of collective experience representing federal employees. And thanks to our efforts, many of our customers have triumphed or obtained favorable settlements. Give us the chance to give you the representation you deserve. Call us at 800-801-0598 or contact us online today to request a consultation.