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Understanding the Role of Title 38 Employees in the Disciplinary Appeals Board Process
Under Title 38, the Disciplinary Appeals Board (DAB) process applies to certain medical professionals. A broad range of VA professions falls under the DAB’s jurisdiction.
Examples of these professions include:
Each of these fields requires professionals to adhere to specific standards of care. For example, physicians must abide by a code of medical ethics and follow strict rules related to patient care and confidentiality. The DAB exists to handle complaints about these professionals failing to meet the required standards. However, the DAB jurisdiction doesn’t cover general disciplinary issues.
The DAB appeals process includes four main steps:
In certain cases, you may be able to appeal further if the DAB’s decision is not in your favor.
The appeals process begins when you receive a proposed notice of discipline. For the notice to be valid, it must clearly state the alleged misconduct (such as negligence in patient care), evidence of the alleged misconduct and the proposed disciplinary action.
The issue must be related to patient care or professional competence, and the notice should also inform you of your right to respond, either orally or in writing. Typically, you’ll have only a short window to reply—sometimes as little as five calendar days. If you receive a notice of discipline, it’s essential to contact an experienced Title 38 attorney.
Once you and your attorney have responded to the notice, a deciding official will review the evidence and your reply to determine the outcome of the proposed discipline.
The deciding official may decide to uphold the proposed penalty, reduce it, or withdraw the discipline entirely. You and your attorney will receive a written decision outlining the reasons behind the final decision. The letter will also explain your right to appeal to the DAB. Generally, you have 7 days to file an appeal, and the Board typically dismisses late filings.
Once you’ve filed a written appeal, the VA will form a three-person panel made up of professionals at a similar grade level to you. This panel will review whether you’ve met the required professional standards. Before the hearing, a pre-hearing meeting will be held to discuss the issues involved in the appeal and ensure everyone is prepared for the proceedings.
At the hearing, the VA must prove that the preponderance of evidence supports the allegation against you. Since the VA carries the burden of proof, it will present its case first.
The hearing will start with opening statements, followed by the VA’s presentation of witnesses. You (or your representative) will have the opportunity to cross-examine these witnesses. After the VA completes its case, you’ll be able to present your own witnesses. The hearing will conclude with closing arguments from both sides.
After the hearing, the DAB will issue a decision—either upholding or overturning the discipline. If you win, the DAB may order the VA to reinstate you and provide back pay.
Gary, a former VA attorney, is committed to protecting the careers of VA Title 38 medical professionals. Don’t risk your future by going unrepresented at a DAB hearing. Gary understands the VA and the role of medical professionals in the VA system. Please contact me for a free consultation.