CHAPTER 74 - VETERANS HEALTH ADMINISTRATION—PERSONNEL
Title 38 > CHAPTER 74
Sections (42)
§ 7401 Appointments in Veterans Health Administration
There may be appointed by the Secretary such personnel as the Secretary may find necessary for the health care of veterans (in addition to those in the Office of the Under Secretary for Health appointed under section 7306 of this title ), as follows: Physicians, dentists, podiatrists, chiropractors, optometrists, registered nurses, physician assistants, and expanded-function dental auxiliaries. Scientific and professional personnel, such as microbiologists, chemists, and biostatisticians. Audiologists, licensed hearing aid specialists, speech pathologists, and audiologist-speech pathologists, biomedical engineers, certified or registered respiratory therapists, dietitians, licensed physical therapists, licensed practical or vocational nurses, nurse assistants, medical instrument technicians, medical records administrators or specialists, medical records technicians, medical technologists, dental hygienists, dental assistants, nuclear medicine technologists, occupational therapists, occupational therapy assistants, kinesiotherapists, orthotist-prosthetists, pharmacists, pharmacy technicians, physical therapy assistants, prosthetic representatives, psychologists, diagnostic radiologic technologists, therapeutic radiologic technologists, social workers, marriage and family therapists, licensed professional mental health counselors, blind rehabilitation specialists, blind rehabilitation outpatient specialists, statisticians, economists, informaticists, data scientists, and and 1 such other classes of health care occupations as the Secretary considers necessary for the recruitment and retention needs of the Department subject to the following requirements: Such other classes of health care occupations— are not occupations relating to administrative, clerical, or physical plant maintenance and protective services; would otherwise receive basic pay in accordance with the General Schedule under section 5332 of title 5 ; provide, as determined by the Secretary, direct patient care services or services incident to direct patient services; and would not otherwise be available to provide medical care or treatment for veterans. Not later than 45 days before the Secretary appoints any personnel for a class of health care occupations that is not specifically listed in this paragraph, the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate, the Committee on Veterans’ Affairs of the House of Representatives, and the Office of Management and Budget notice of such appointment. Before submitting notice under subparagraph (B), the Secretary shall solicit comments from any labor organization representing employees in such class and include such comments in such notice. Directors of medical centers and directors of Veterans Integrated Service Networks with demonstrated ability in the medical profession, in health care administration, or in health care fiscal management. (Added Pub. L. 102–40, title IV, § 401(b)(2) , May 7, 1991 , 105 Stat. 222 ; amended Pub. L. 102–405, title III, § 302(c)(1) , Oct. 9, 1992 , 106 Stat. 1984 ; Pub. L. 108–170, title III , §§ 301(a)(1), 302(a), Dec. 6, 2003 , 117 Stat. 2054 , 2057; Pub. L. 108–422, title V, § 502 , Nov. 30, 2004 , 118 Stat. 2396 ; Pub. L. 109–461, title II, § 201(a) , Dec. 22, 2006 , 120 Stat. 3409 ; Pub. L. 111–163, title VI, § 601(a) , May 5, 2010 , 124 Stat. 1167 ; Pub. L. 114–58, title VI, § 601(23) , Sept. 30, 2015 , 129 Stat. 539 ; Pub. L. 114–256, § 4(a)(1) , Dec. 14, 2016 , 130 Stat. 1347 ; Pub. L. 115–41, title II, § 207(a) , June 23, 2017 , 131 Stat. 877 ; Pub. L. 117–328, div. U, title I, § 183 , Dec. 29, 2022 , 136 Stat. 5436 .)
§ 7402 Qualifications of appointees
(a) To be eligible for appointment to the positions in the Administration covered by subsection (b), a person must have the applicable qualifications set forth in that subsection.
(b) To be eligible to be appointed to a physician position, a person must— hold the degree of doctor of medicine or of doctor of osteopathy from a college or university approved by the Secretary, have completed an internship satisfactory to the Secretary, and be licensed to practice medicine, surgery, or osteopathy in a State. To be eligible to be appointed to a dentist position, a person must— hold the degree of doctor of dental surgery or dental medicine from a college or university approved by the Secretary, and be licensed to practice dentistry in a State. To be eligible to be appointed to a nurse position, a person must— have successfully completed a full course of nursing in a recognized school of nursing, approved by the Secretary, and be registered as a graduate nurse in a State. To be eligible to be appointed to a director position, a person must have such business and administrative experience and qualifications as the Secretary shall prescribe. To be eligible to be appointed to a podiatrist position, a person must— hold the degree of doctor of podiatric medicine, or its equivalent, from a school of podiatric medicine approved by the Secretary, and be licensed to practice podiatry in a State. To be eligible to be appointed to an optometrist position, a person must— hold the degree of doctor of optometry, or its equivalent, from a school of optometry approved by the Secretary, and be licensed to practice optometry in a State. To be eligible to be appointed to a pharmacist position, a person must— hold the degree of bachelor of science in pharmacy, or its equivalent, from a school of pharmacy, approved by the Secretary, and be registered as a pharmacist in a State. To be eligible to be appointed to a psychologist position, a person must— hold a doctoral degree in psychology from a college or university approved by the Secretary, have completed study for such degree in a specialty area of psychology and an internship which are satisfactory to the Secretary, and be licensed or certified as a psychologist in a State, except that the Secretary may waive the requirement of licensure or certification for an individual psychologist for a period not to exceed two years on the condition that that psychologist provide patient care only under the direct supervision of a psychologist who is so licensed or certified. To be eligible to be appointed to a social worker position, a person must— hold a master’s degree in social work from a college or university approved by the Secretary; and be licensed or certified to independently practice social work in a State, except that the Secretary may waive the requirement of licensure or certification for an individual social worker for a reasonable period of time recommended by the Under Secretary for Health. To be eligible to be appointed to a marriage and family therapist position, a person must— hold a master’s degree in marriage and family therapy, or a comparable degree in mental health, from a college or university approved by the Secretary; and be licensed or certified to independently practice marriage and family therapy in a State, except that the Secretary may waive the requirement of licensure or certification for an individual marriage and family therapist for a reasonable period of time recommended by the Under Secretary for Health. To be eligible to be appointed to a licensed professional mental health counselor position, a person must— hold a master’s degree or doctoral degree in mental health counseling, or a related field, from a college or university approved by the Secretary; and be licensed or certified to independently practice mental health counseling. To be eligible to be appointed to a chiropractor position, a person must— hold the degree of doctor of chiropractic, or its equivalent, from a college of chiropractic approved by the Secretary; and be licensed to practice chiropractic in a State. To be eligible to be appointed to a peer specialist position, a person must— be a veteran who has recovered or is recovering from a mental health condition; and be certified by— a not-for-profit entity engaged in peer specialist training as having met such criteria as the Secretary shall establish for a peer specialist position; or a State as having satisfied relevant State requirements for a peer specialist position. To be appointed as a physician assistant, expanded-function dental auxiliary, certified or registered respiratory therapist, licensed physical therapist, licensed practical or vocational nurse, occupational therapist, dietitian, microbiologist, chemist, biostatistician, medical technologist, dental technologist, hearing aid specialist, or other position, a person must have such medical, dental, scientific, or technical qualifications as the Secretary shall prescribe.
(c) Except as provided in section 7407(a) of this title , a person may not be appointed in the Administration to a position listed in section 7401(1) of this title unless the person is a citizen of the United States.
(d) A person may not be appointed under section 7401(1) of this title to serve in the Administration in any direct patient-care capacity unless the Under Secretary for Health determines that the person possesses such basic proficiency in spoken and written English as will permit such degree of communication with patients and other health-care personnel as will enable the person to carry out the person’s health-care responsibilities satisfactorily. Any determination by the Under Secretary for Health under this subsection shall be in accordance with regulations which the Secretary shall prescribe.
(e) A person may not serve as Chief of Staff of a Department health-care facility if the person is not serving on a full-time basis.
(f) A person may not be employed in a position under subsection (b) (other than under paragraph (4) of that subsection) if— the person is or has been licensed, registered, or certified (as applicable to such position) in more than one State; and either— any of those States has terminated such license, registration, or certification for cause; or the person has voluntarily relinquished such license, registration, or certification in any of those States after being notified in writing by that State of potential termination for cause.
(g) The Secretary may enter into contracts with not-for-profit entities to provide— peer specialist training to veterans; and certification for veterans under subsection (b)(13)(B)(i).
§ 7403 Period of appointments; promotions
(a) Appointments under this chapter of health-care professionals to whom this section applies may be made only after qualifications have been satisfactorily established in accordance with regulations prescribed by the Secretary, without regard to civil-service requirements. This section applies to the following persons appointed under this chapter: Physicians. Dentists. Podiatrists. Optometrists. Nurses. Physician assistants. Expanded-function dental auxiliaries. Chiropractors.
(b) Except as otherwise provided in this subsection, appointments described in subsection (a) shall be for a probationary period of two years. With respect to the appointment of a registered nurse under this chapter, paragraph (1) shall apply with respect to such appointment regardless of whether such appointment is on a full-time basis or a part-time basis. An appointment described in subsection (a) on a part-time basis of a person who has previously served on a full-time basis for the probationary period for the position concerned shall be without a probationary period. The record of each person serving under such an appointment in the Medical, Dental, and Nursing Services shall be reviewed from time to time by a board, appointed in accordance with regulations of the Secretary. If such a board finds that such person is not fully qualified and satisfactory, such person shall be separated from the service.
(c) Promotions of persons to whom this section applies shall be made only after examination given in accordance with regulations prescribed by the Secretary. Advancement within grade may be made in increments of the minimum rate of basic pay of the grade in accordance with regulations prescribed by the Secretary.
(d) In determining eligibility for reinstatement in the Federal civil service of persons appointed to positions in the Administration under this chapter who at the time of appointment have a civil-service status, and whose employment in the Administration is terminated, the period of service performed in the Administration shall be included in computing the period of service under applicable civil-service rules and regulations.
(e) In accordance with regulations prescribed by the Secretary, the grade and annual rate of basic pay of a person to whom this section applies whose level of assignment is changed from a level of assignment in which the grade level is based on both the nature of the assignment and personal qualifications may be adjusted to the grade and annual rate of basic pay otherwise appropriate.
(f) Upon the recommendation of the Under Secretary for Health, the Secretary may— use the authority in subsection (a) to establish the qualifications for and (subject to paragraph (2)) to appoint individuals to positions listed in section 7401(3) of this title ; and use the authority provided in subsection (c) for the promotion and advancement of Department employees serving in such positions. In using such authority to appoint individuals to such positions, the Secretary shall apply the principles of preference for the hiring of veterans and other persons established in subchapter I of chapter 33 of title 5. Notwithstanding any other provision of this title or other law, all matters relating to adverse actions, reductions-in-force, the applicability of the principles of preference referred to in paragraph (2), rights of part-time employees, disciplinary actions, and grievance procedures involving individuals appointed to such positions, whether appointed under this section or section 7405(a)(1)(B) of this title (including similar actions and procedures involving an employee in a probationary status), shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.
(g) The Secretary may appoint in the competitive civil service without regard to the provisions of subchapter I of chapter 33 of title 5 (other than sections 3303 and 3328 of such title) an individual who— has a recognized degree or certificate from an accredited institution in a health-care profession or occupation; and has successfully completed a clinical education program affiliated with the Department. In using the authority provided by this subsection, the Secretary shall apply the principles of preference for the hiring of veterans and other persons established in subchapter I of chapter 33 of title 5.
(h) If the Secretary uses the authority provided in subsection (c) for the promotion and advancement of an occupational category of employees described in section 7401(3) of this title , as authorized by subsection (f)(1)(B), the Secretary shall do so through one or more systems prescribed by the Secretary. Each such system shall be planned, developed, and implemented in collaboration with, and with the participation of, exclusive employee representatives of such occupational category of employees. Before prescribing a system of promotion and advancement of an occupational category of employees under paragraph (1), the Secretary shall provide to exclusive employee representatives of such occupational category of employees a written description of the proposed system. Not later than 30 days after receipt of the description of a proposed system under subparagraph (A), exclusive employee representatives may submit to the Secretary the recommendations, if any, of such exclusive employee representatives with respect to the proposed system. The Secretary shall give full and fair consideration to any recommendations received under subparagraph (B) in deciding whether and how to proceed with a proposed system. The Secretary shall implement immediately any part of a system of promotion and advancement under paragraph (1) that is proposed under paragraph (2) for which the Secretary receives no recommendations from exclusive employee representatives under paragraph (2). If the Secretary receives recommendations under paragraph (2) from exclusive employee representatives on any part of a proposed system of promotion and advancement under that paragraph, the Secretary shall determine whether or not to accept the recommendations, either in whole or in part. If the Secretary determines not to accept all or part of the recommendations, the Secretary shall— notify the congressional veterans’ affairs committees of the recommendations and of the portion of the recommendations that the Secretary has determined not to accept; meet and confer with such exclusive employee representatives, for a period not less than 30 days, for purposes of attempting to reach an agreement on whether and how to proceed with the portion of the recommendations that the Secretary has determined not to accept; at the election of the Secretary, or of a majority of such exclusive employee representatives who are participating in negotiations on such matter, employ the services of the Federal Mediation and Conciliation Service during the period referred to in subparagraph (B) for purposes of reaching such agreement; and if the Secretary determines that activities under subparagraph (B), (C), or both are unsuccessful at reaching such agreement and determines (in the sole and unreviewable discretion of the Secretary) that further meeting and conferral under subparagraph (B), mediation under subparagraph (C), or both are unlikely to reach such agreement— notify the congressional veterans’ affairs committees of such determinations, identify for such committees the portions of the recommendations that the Secretary has determined not to accept, and provide such committees an explanation and justification for determining to implement the part of the system subject to such portions of the recommendations without regard to such portions of the recommendations; and commencing not earlier than 30 days after notice under clause (i), implement the part of the system subject to the recommendations that the Secretary has determined not to accept without regard to those recommendations. If the Secretary and exclusive employee representatives reach an agreement under paragraph (4) providing for the resolution of a disagreement on one or more portions of the recommendations that the Secretary had determined not to accept under that paragraph, the Secretary shall immediately implement such resolution. In implementing a system of promotion and advancement under this subsection, the Secretary shall— develop and implement mechanisms to permit exclusive employee representatives to participate in the periodic review and evaluation of the system, including peer review, and in any further planning or development required with respect to the system as a result of such review and evaluation; and provide exclusive employee representatives appropriate access to information to ensure that the participation of such exclusive employee representative in activities under subparagraph (A) is productive. The Secretary may from time to time modify a system of promotion and advancement under this subsection. In modifying a system, the Secretary shall take into account any recommendations made by the exclusive employee representatives concerned. In modifying a system, the Secretary shall comply with paragraphs (2) through (5) and shall treat any proposal for the modification of a system as a proposal for a system for purposes of such paragraphs. The Secretary shall promptly submit to the congressional veterans’ affairs committees a report on any modification of a system. Each report shall include— an explanation and justification of the modification; and a description of any recommendations of exclusive employee representatives with respect to the modification and a statement whether or not the modification was revised in light of such recommendations. In the case of employees who are not within a unit with respect to which a labor organization is accorded exclusive recognition, the Secretary may develop procedures for input from representatives under this subsection from any appropriate organization that represents a substantial percentage of such employees or, if none, in such other manner as the Secretary considers appropriate, consistent with the purposes of this subsection. In this subsection, the term “congressional veterans’ affairs committees” means the Committees on Veterans’ Affairs of the Senate and the House of Representatives.
§ 7404 Grades and pay scales
(a) The annual rates or ranges of rates of basic pay for positions provided in section 1 7306 and 7401(4) of this title shall be prescribed from time to time by Executive order as authorized by chapter 53 of title 5 or as otherwise authorized by law. Section 5377 of title 5 shall apply to a position under section 7306 or 7401(4) of this title as if such position were included in the definition of “position” in section 5377(a) of title 5 . The pay of physicians, podiatrists, optometrists, and dentists serving in positions to which an Executive order applies under paragraph (1) shall be determined under subchapter III of this chapter instead of such Executive order. The basic pay of registered nurses and physician assistants serving in positions to which an Executive order applies under paragraph (1) may be determined under subchapter IV of this chapter instead of such Executive order. Such positions shall not otherwise be covered by such subchapter, except with respect to bonuses under section 7452 or 7458 or special pay under subsection (g) of such section 7452. The rate of basic pay for a position to which an Executive order applies under paragraph (1) and is not described by paragraph (2) shall be set in accordance with section 5382 of title 5 as if such position were a Senior Executive Service position (as such term is defined in section 3132(a) of title 5 ). A rate of basic pay for a position may not be set under subparagraph (A) in excess of— in the case the position is not described in clause (ii), the rate of basic pay payable for level III of the Executive Schedule; or in the case that the position is covered by a performance appraisal system that meets the certification criteria established by regulation under section 5307(d) of title 5 , the rate of basic pay payable for level II of the Executive Schedule. Notwithstanding the provisions of subsection (d) of section 5307 of title 5 , the Secretary may make any certification under that subsection instead of the Office of Personnel Management and without concurrence of the Office of Management and Budget.
(b) The grades for positions provided for in paragraph (1) of section 7401 of this title shall be as follows. The annual ranges of rates of basic pay for those grades shall be prescribed from time to time by Executive order as authorized by chapter 53 of title 5 or as otherwise authorized by law:
(c) Notwithstanding the provisions of section 7425(a) of this title , a person appointed under section 7306 or 7401(4) of this title or in a covered executive position under section 7401(1) of this title shall be deemed to be a career appointee for the purposes of section 4507 of title 5 . In this subsection, the term “covered executive position” means a position that the Secretary has determined is of equivalent rank to a Senior Executive Service position (as such term is defined in section 3132(a) of title 5 ) and is subject to an agency performance management system.
(d) Except as provided under subsection (e), subchapter III, and section 7457 of this title , and except for individuals appointed under sections 7401(4) and 7306 of this title, pay for positions for which basic pay is paid under this section may not be paid at a rate in excess of the rate of basic pay authorized by section 5316 of title 5 for positions in Level V of the Executive Schedule.
(e) The position of Chief Nursing Officer, Office of Nursing Services, shall be exempt from the provisions of section 7451 of this title and shall be paid basic pay at a rate determined by the Secretary, not to exceed the maximum rates established under subchapter IV of this chapter.
§ 7404A Awards
(a) Superior Accomplishments and Performance Awards Program.— The Secretary may establish an awards program for personnel listed in section 7421(b) of this title consistent with chapter 45 of title 5, to the extent practicable.
(b) Executive Performance Awards Program.— Notwithstanding section 7425 of this title or any other provision of law, the Secretary may establish a performance awards program consistent with section 5384 of title 5 for— personnel appointed under section 7401(1) of this title for a position that the Secretary has determined is of equivalent rank to a Senior Executive Service position (as such term is defined in section 3132(a) of title 5 ) and is subject to an agency performance management system; and personnel appointed under section 7306 or 7401(4) of this title.
(c) Payment of Awards.— Awards under this section may be paid based on criteria established by the Secretary and shall not be considered in calculating the limitation under section 7431(e)(4) of this title .
(d) Not Considered Basic Pay.— Awards under this section shall not be considered basic pay for any purpose.
(e) Regulations.— The Secretary may prescribe regulations for the administration of this section.
§ 7405 Temporary full-time appointments, part-time appointments, and without-compensation appointments
(a) The Secretary, upon the recommendation of the Under Secretary for Health, may employ, without regard to civil service or classification laws, rules, or regulations, personnel as follows: On a temporary full-time basis, part-time basis, or without compensation basis, persons in the following positions: Positions listed in section 7401(1) of this title . Positions listed in section 7401(3) of this title . Librarians. Other professional, clerical, technical, and unskilled personnel (including interns, residents, trainees, and students in medical support programs). On a fee basis, persons in the following positions: Positions listed in section 7401(1) of this title . Positions listed in section 7401(3) of this title . Other professional and technical personnel.
(b) Personnel employed under subsection (a)— shall be in addition to personnel described in section 7306, paragraphs (1) and (3) of section 7401, and section 7408 of this title ; and shall be paid such rates of pay as the Secretary may prescribe.
(c) Temporary full-time appointments under this section of persons in positions listed in paragraphs (1) and (3) of section 7401 of this title may be for a period in excess of 90 days only if the Under Secretary for Health finds that circumstances render it impracticable to obtain the necessary services through appointments under that section. A temporary full-time appointment may not be made for a period in excess of two years in the case of a person who— has successfully completed— a full course of nursing in a recognized school of nursing, approved by the Secretary; or a full course of training for any category of personnel described in paragraph (3) of section 7401 of this title , or as a physician assistant, in a recognized education or training institution approved by the Secretary; and is pending registration or licensure in a State or certification by a national board recognized by the Secretary. Temporary full-time appointments of persons in positions referred to in subsection (a)(1)(D) shall not exceed three years. Temporary full-time appointments under this paragraph may be renewed for one or more additional periods not in excess of three years each. Temporary full-time appointments of other personnel may not be for a period in excess of one year except as authorized in subsection (f).
(d) A part-time appointment may not be for a period of more than one year, except for appointments of persons specified in subsection (a)(1)(A) and interns, residents, and other trainees in medical support programs and except as authorized in subsection (f).
(e) A student who has a temporary appointment under this section and who is pursuing a full course of nursing in a recognized school of nursing approved by the Secretary, or who is pursuing a full course of training for any category of personnel described in paragraph (3) of section 7401 of this title in a recognized education or training institution approved by the Secretary, may be reappointed for a period not to exceed the duration of the student’s academic program.
(f) During any period during which the Secretary is exercising the authority provided in subsections (a) and (f)(1) of section 7403 of this title in connection with the appointment, under paragraph (3) of section 7401 of this title , of personnel in a category of personnel described in such paragraph— the Secretary may make temporary full-time appointments of personnel in such category for periods exceeding 90 days if the Under Secretary for Health finds that circumstances render it impractical to obtain the necessary services through appointments under paragraph (3) of section 7401 of this title ; and part-time appointments of personnel in such category may be for periods of more than one year.
(g) Except as provided in paragraph (3), employment of a registered nurse on a temporary part-time basis under subsection (a)(1) shall be for a probationary period of two years. Except as provided in paragraph (3), upon completion by a registered nurse of the probationary period described in paragraph (1)— the employment of such nurse shall— no longer be considered temporary; and be considered an appointment described in section 7403(a) of this title ; and the nurse shall be considered to have served the probationary period required by section 7403(b). This subsection shall not apply to appointments made on a term limited basis of less than or equal to three years of— nurses with a part-time appointment resulting from an academic affiliation or teaching position in a nursing academy of the Department; nurses appointed as a result of a specific research proposal or grant; or nurses who are not citizens of the United States and appointed under section 7407(a) of this title .
§ 7406 Residencies and internships
(a) The Secretary may establish residencies and internships. The Secretary may appoint qualified persons to such positions without regard to civil service or classification laws, rules, or regulations. For the purposes of this section: The term “internship” includes the equivalency of an internship as determined in accordance with regulations which the Secretary shall prescribe. The term “intern” means a person serving an internship.
(b) The Secretary may prescribe the conditions of employment of persons appointed under this section, including necessary training, and the customary amount and terms of pay for such positions during the period of such employment and training. The amount and terms of such pay may be established retroactively based on changes in such customary amount and terms.
(c) In order to carry out more efficiently the provisions of subsection (a)(1), the Secretary may contract with one or more hospitals, medical schools, or medical installations having hospital facilities and participating with the Department in the training of interns or residents to provide, by the designation of one such institution to serve as a central administrative agency, for the central administration— of stipend payments; provision of fringe benefits; and maintenance of records for such interns and residents. The Secretary may pay to such designated agency, without regard to any other law or regulation governing the expenditure of Government moneys either in advance or in arrears, an amount to cover the cost for the period such intern or resident serves in a Department facility furnishing hospital care or medical services of— stipends fixed by the Secretary pursuant to paragraph (1); hospitalization, medical care, and life insurance and any other employee benefits as are agreed upon by the participating institutions for the period that such intern or resident serves in a Department facility furnishing hospital care or medical services; tax on employers pursuant to chapter 21 of the Internal Revenue Code of 1986, where applicable; and an amount to cover a pro rata share of the cost of expense of such central administrative agency. Any amounts paid by the Secretary to such central administrative agency to cover the cost of hospitalization, medical care, or life insurance or other employee benefits shall be in lieu of any benefits of like nature to which such intern or resident may be entitled under the provisions of title 5, and the acceptance of stipends and employee benefits from the designated central administrative agency shall constitute a waiver by the recipient of any claim such recipient might have to any payment of stipends or employee benefits to which such recipient may be entitled under this title or title 5. Notwithstanding subparagraph (A), any period of service of any such intern or resident in a Department facility furnishing hospital care or medical services shall be deemed creditable service for the purposes of section 8332 of title 5 . The agreement with such central administrative agency may further provide that the designated central administrative agency shall— make all appropriate deductions from the stipend of each intern and resident for local, State, and Federal taxes; maintain all records pertinent to such deductions and make proper deposits of such deductions; and maintain all records pertinent to the leave accrued by such intern and resident for the period during which such recipient serves in a participating facility, including a Department facility furnishing hospital care or medical services. Leave described in paragraph (4)(C) may be pooled, and the intern or resident may be afforded leave by the facility in which such person is serving at the time the leave is to be used to the extent of such person’s total accumulated leave, whether or not earned at the facility in which such person is serving at the time the leave is to be afforded.
§ 7407 Administrative provisions for section 7405 and 7406 appointments
(a) When the Under Secretary for Health determines that it is not possible to recruit qualified citizens for the necessary services, appointments under sections 7405 and 7406 of this title may be made without regard to the citizenship requirements of section 7402(c) of this title or of any other law prohibiting the employment of, or payment of compensation to, a person who is not a citizen of the United States.
(b) Subject to paragraph (2), the Under Secretary for Health may waive for the purpose of the appointment of an individual under section 7405 or 7406 of this title the requirements set forth in section 7402(b) of this title — that a physician, dentist, psychologist, optometrist, registered nurse, practical or vocational nurse, or physical therapist be licensed or certified, as appropriate; that the licensure or certification of such an individual be in a State; and that a psychologist have completed an internship. The waivers authorized in paragraph (1) may be granted— in the case of clauses (A) and (C) of such paragraph, if the individual (i) will be employed to conduct research or serve in an academic position, and (ii) will have no responsibility for furnishing direct patient care services; and in the case of clause (B) of such paragraph, if the individual will be employed to serve in a country other than the United States and the individual’s licensure or registration is in the country in which the individual is to serve.
(c) The program of training prescribed by the Secretary in order to qualify a person for the position of full-time physician assistant or expanded-function dental auxiliary shall be considered a full-time institutional program for purposes of chapter 34 of this title. The Secretary may consider training for such a position to be on a less than full-time basis for purposes of such chapter when the combined classroom (and other formal instruction) portion of the program and the on-the-job training portion of the program total less than 30 hours per week.
(d) A person may not be appointed under section 7405 or 7406 of this title to an occupational category described in section 7401(1) of this title or in section 7406 of this title unless the person meets the requirements established in section 7402(d) of this title and regulations prescribed under that section.
(e) In accordance with the provisions of section 7425(b) of this title , the provisions of chapter 34 of title 5 pertaining to part-time career employment shall not apply to part-time appointments under sections 7405 and 7406 of this title.
§ 7408 Appointment of additional employees
(a) There shall be appointed by the Secretary under civil service laws, rules, and regulations, such additional employees, other than those provided in section 7306 and paragraphs (1) and (3) of section 7401 of this title and those specified in sections 7405 and 7406 of this title, as may be necessary to carry out the provisions of this chapter.
(b) The Secretary, after considering an individual’s existing pay, higher or unique qualifications, or the special needs of the Department, may appoint the individual to a position in the Administration providing direct patient-care services or services incident to direct patient-services at a rate of pay above the minimum rate of the appropriate grade.
§ 7409 Contracts for scarce medical specialist services
(a) The Secretary may enter into contracts with institutions and persons described in subsection (b) to provide scarce medical specialist services at Department facilities. Such services may include the services of physicians, dentists, podiatrists, optometrists, chiropractors, nurses, physician assistants, expanded-function dental auxiliaries, technicians, and other medical support personnel.
(b) Institutions and persons with whom the Secretary may enter into contracts under subsection (a) are the following: Schools and colleges of medicine, osteopathy, dentistry, podiatry, optometry, and nursing. Clinics. Any other group or individual capable of furnishing such scarce medical specialist services.
§ 7410 Additional pay authorities
(a) In General.— The Secretary may authorize the Under Secretary for Health to pay advance payments, recruitment or relocation bonuses, and retention allowances to personnel appointed under section 7306 of this title or section 7401(4) of this title , or personnel described in section 7401(1) of this title ,, 1 or interview expenses to candidates for appointment as such personnel, in a manner consistent with the authority provided under sections 5524a, 5706b, 5753, and 5754 of title 5. Payments under paragraph (1) shall not be considered in calculating the limitation under section 7431(e)(4) of this title .
(b) Special Incentive Pay for Department Pharmacist Executives.— In order to recruit and retain highly qualified Department pharmacist executives, the Secretary may authorize the Under Secretary for Health to pay special incentive pay of not more than $40,000 per year to an individual of the Veterans Health Administration who is a pharmacist executive. In determining whether and how much special pay to provide to such individual, the Under Secretary shall consider the following: The grade and step of the position of the individual. The scope and complexity of the position of the individual. The personal qualifications of the individual. The characteristics of the labor market concerned. Such other factors as the Secretary considers appropriate. Special incentive pay under paragraph (1) for an individual is in addition to all other pay (including basic pay) and allowances to which the individual is entitled. Except as provided in paragraph (5), special incentive pay under paragraph (1) for an individual shall be considered basic pay for all purposes, including retirement benefits under chapters 83 and 84 of title 5, and other benefits. Special incentive pay under paragraph (1) for an individual shall not be considered basic pay for purposes of adverse actions under subchapter V of this chapter. Special incentive pay under paragraph (1) may not be awarded to an individual in an amount that would result in an aggregate amount of pay (including bonuses and awards) received by such individual in a year under this title that is greater than the annual pay of the President.
§ 7411 Full-time board-certified physicians and dentists: reimbursement of continuing professional education expenses
The Secretary shall reimburse any full-time board-certified physician or dentist appointed under section 7401(1) of this title for expenses incurred, up to $1,000 per year, for continuing professional education. (Added Pub. L. 102–40, title I, § 103(a)[(1)] , May 7, 1991 , 105 Stat. 199 .)
§ 7412 Annual determination of staffing shortages; recruitment and appointment for needed occupations
(a) In General.— Not later than September 30 of each year, the Inspector General of the Department shall determine, and the Secretary shall publish in the Federal Register, at a minimum, the five clinical occupations and the five nonclinical occupations of personnel of this title of the Department covered under section 7401 of this title for which there are the largest staffing shortages with respect to each medical center of the Department, as calculated over the five-year period preceding the determination.
(b) Recruitment and Appointment.— Notwithstanding sections 3304 and 3309 through 3318 of title 5, the Secretary may, upon a determination by the Inspector General under subsection (a) that there is a staffing shortage throughout the Department with respect to a particular occupation, recruit and directly appoint, during the fiscal year after the fiscal year during which such determination is made, qualified personnel to serve in that particular occupation for the Department.
§ 7413 Treatment of podiatrists; clinical oversight standards
(a) Podiatrists.— Except as provided by subsection (b), a doctor of podiatric medicine who is appointed as a podiatrist under section 7401(1) of this title is eligible for any supervisory position in the Veterans Health Administration to the same degree that a physician appointed under such section is eligible for the position.
(b) Establishment of Clinical Oversight Standards.— The Secretary, in consultation with appropriate stakeholders, shall establish standards to ensure that specialists appointed in the Veterans Health Administration to supervisory positions do not provide direct clinical oversight for purposes of peer review or practice evaluation for providers of other clinical specialties.
§ 7414 Compliance with requirements for examining qualifications and clinical abilities of health care professionals
(a) Compliance With Credentialing Requirements.— The Secretary shall ensure that each medical center of the Department, in a consistent manner— compiles, verifies, and reviews documentation for each health care professional of the Department at such medical center regarding, at a minimum— the professional licensure, certification, or registration of the health care professional; whether the health care professional holds a Drug Enforcement Administration registration; and the education, training, experience, malpractice history, and clinical competence of the health care professional; and continuously monitors any changes to the matters under paragraph (1), including with respect to suspensions, restrictions, limitations, probations, denials, revocations, and other changes, relating to the failure of a health care professional to meet generally accepted standards of clinical practice in a manner that presents reasonable concern for the safety of patients.
(b) Registration Regarding Controlled Substances.— Except as provided in paragraph (2), the Secretary shall ensure that each covered health care professional holds an active Drug Enforcement Administration registration. The Secretary shall— determine the circumstances in which a medical center of the Department must obtain a waiver under section 302(d) of the Controlled Substances Act ( 21 U.S.C. 822(d) ) with respect to covered health care professionals; and establish a process for medical centers to request such waivers. In carrying out paragraph (1), the Secretary shall ensure that each medical center of the Department monitors the Drug Enforcement Administration registrations of covered health care professionals at such medical center in a manner that ensures the medical center is made aware of any change in status in the registration by not later than seven days after such change in status. If a covered health care professional does not hold an active Drug Enforcement Administration registration, the Secretary shall carry out any of the following actions, as the Secretary determines appropriate: Obtain a waiver pursuant to paragraph (2). Transfer the health care professional to a position that does not require prescribing, dispensing, administering, or conducting research with controlled substances. Take appropriate actions under subchapter V of this chapter, with respect to an employee of the Department, or take appropriate contract administration actions, with respect to a contractor of the Department.
(c) Reviews of Concerns Relating to Quality of Clinical Care.— The Secretary shall ensure that each medical center of the Department, in a consistent manner, carries out— ongoing, retrospective, and comprehensive monitoring of the performance and quality of the health care delivered by each health care professional of the Department located at the medical center, including with respect to the safety of such care; and timely and documented reviews of such care if an individual notifies the Secretary of any potential concerns relating to a failure of a health care professional of the Department to meet generally accepted standards of clinical practice in a manner that presents reasonable concern for the safety of patients. The Secretary shall establish a policy to carry out paragraph (1), including with respect to— determining the period by which a medical center of the Department must initiate the review of a concern described in subparagraph (B) of such paragraph following the date on which the concern is received; and ensuring the compliance of each medical center with such policy.
(d) Compliance With Requirements for Reporting Quality of Care Concerns.— If the Secretary substantiates a concern relating to the clinical competency of, or quality of care delivered by, a health care professional of the Department (including a former health care professional of the Department), the Secretary shall ensure that the appropriate medical center of the Department timely notifies the following entities of such concern, as appropriate: The appropriate licensing, registration, or certification body in each State in which the health care professional is licensed, registered, or certified. The Drug Enforcement Administration. The National Practitioner Data Bank established pursuant to the Health Care Quality Improvement Act of 1986 ( 42 U.S.C. 11101 et seq.). Any other relevant entity.
(e) Prohibition on Certain Settlement Agreement Terms.— The Secretary may not enter into a settlement agreement relating to an adverse action against a health care professional of the Department if such agreement includes terms that require the Secretary to conceal from the personnel file of the employee a serious medical error or lapse in clinical practice that constitutes a substantial failure to meet generally accepted standards of clinical practice as to raise reasonable concern for the safety of patients. Nothing in paragraph (1) limits— the right of an employee to appeal a quality of care determination; or the rights of an employee under sections 1214 and 1221 of title 5.
(f) Training.— Not less frequently than annually, the Secretary shall provide mandatory training on the following duties to employees of the Department who are responsible for performing such duties: Compiling, validating, or reviewing the credentials of health care professionals of the Department. Reviewing the quality of clinical care delivered by health care professionals of the Department. Taking adverse privileging actions or making determinations relating to other disciplinary actions or employment actions against health care professionals of the Department for reasons relating to the failure of a health care professional to meet generally accepted standards of clinical practice in a manner that presents reasonable concern for the safety of patients. Making notifications under subsection (d).
(g) Definitions.— In this section: The term “controlled substance” has the meaning given that term in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 ). The term “covered health care professional” means an individual employed in a position as a health care professional of the Department, or a contractor of the Department, that requires the individual to be authorized to prescribe, dispense, administer, or conduct research with, controlled substances. The term “Drug Enforcement Administration registration” means registration with the Drug Enforcement Administration under section 303 of the Controlled Substances Act ( 21 U.S.C. 823 ) 302 of the Controlled Substances Act ( 21 U.S.C. 822 ) by health care practitioners authorized to dispense, prescribe, administer, or conduct research with, controlled substances. The term “health care professional of the Department” means an individual working for the Department in a position described in section 7401 of this title , including a contractor of the Department serving in such a position.
§ 7421 Personnel administration: in general
(a) Notwithstanding any law, Executive order, or regulation, the Secretary shall prescribe by regulation the hours and conditions of employment and leaves of absence of employees appointed under any provision of this title in positions in the Veterans Health Administration listed in subsection (b).
(b) Subsection (a) refers to the following positions: Physicians. Dentists. Podiatrists. Optometrists. Registered nurses. Physician assistants. Expanded-duty dental auxiliaries. Chiropractors. Any position for which the employee is appointed under section 7306 or 7401(4) of this title.
§ 7422 Collective bargaining
(a) Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor-management relations).
(b) Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of employees described in section 7421(b) of this title may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title.
(c) For purposes of this section, the term “professional conduct or competence” means any of the following: Direct patient care. Clinical competence.
(d) An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency.
(e) A petition for judicial review or petition for enforcement under section 7123 of title 5 in any case involving employees described in section 7421(b) of this title or arising out of the applicability of chapter 71 of title 5 to employees in those positions, shall be taken only in the United States Court of Appeals for the District of Columbia Circuit.
§ 7423 Personnel administration: full-time employees
(a) Except as provided in paragraph (2), the hours of employment in carrying out responsibilities under this title of any employee who is appointed in the Administration under any provision of this chapter on a full-time basis in a position listed in section 7421(b) of this title (other than an intern or resident appointed pursuant to section 7406 of this title ) and who accepts responsibilities for carrying out professional services for remuneration other than those assigned under this title shall consist of not less than 80 hours in a biweekly pay period (as that term is used in section 5504 of title 5 ). Upon the advance written request of a covered physician, the Secretary may modify the hours of employment for a physician appointed in the Administration under any provision of this chapter on a full-time basis to be more or less than 80 hours in a biweekly pay period, subject to the requirements in subparagraph (B). For the purpose of determining pay, such a physician shall be deemed to have a biweekly schedule of 80 hours of employment. A physician with an irregular work schedule established under subparagraph (A) shall be obligated to account for at least 2,080 hours of employment (through performance of work or use of leave or paid time off) in a calendar year. The Secretary may prescribe regulations to implement this paragraph, including regulations making adjustments to address the annual hours requirement for physicians who are covered by this paragraph for only a portion of a calendar year. The Secretary may exclude from the requirements of paragraph (1) employees hired under section 7306 or 7401(4) of this title or for a position described in section 7401(1) of this title that the Secretary has determined is of equivalent rank to a Senior Executive Service position (as such term is defined in section 3132(a) of title 5 ).
(b) A person covered by subsection (a) may not do any of the following: Teach or provide consultative services at any affiliated institution if such teaching or consultation will, because of its nature or duration, conflict with such person’s responsibilities under this title. Accept payment under any insurance or assistance program established under title XVIII or XIX of the Social Security Act or under chapter 55 of title 10 for professional services rendered by such person while carrying out such person’s responsibilities under this title. Accept from any source, with respect to any travel performed by such person in the course of carrying out such person’s responsibilities under this title, any payment or per diem for such travel, other than as provided for in section 4111 of title 5 . Request or permit any individual or organization to pay, on such person’s behalf for insurance insuring such person against malpractice claims arising in the course of carrying out such person’s responsibilities under this title or for such person’s dues or similar fees for membership in medical or dental societies or related professional associations, except where such payments constitute a part of such person’s remuneration for the performance of professional responsibilities permitted under this section, other than those carried out under this title. Perform, in the course of carrying out such person’s responsibilities under this title, professional services for the purpose of generating money for any fund or account which is maintained by an affiliated institution for the benefit of such institution, or for such person’s personal benefit, or both.
(c) In the case of any fund or account described in subsection (b)(5) that was established before September 1, 1973 — the affiliated institution shall submit semiannually an accounting to the Secretary and to the Comptroller General of the United States with respect to such fund or account and shall maintain such fund or account subject to full public disclosure and audit by the Secretary and the Comptroller General for a period of three years or for such longer period as the Secretary shall prescribe, and no person in a position specified in paragraph (1)(B) may receive any cash from amounts deposited in such fund or account derived from services performed before that date.
(d) As used in this section: The term “affiliated institution” means a medical school or other institution of higher learning with which the Secretary has a contract or agreement as referred to in section 7313 of this title for the training or education of health personnel. The term “remuneration” means the receipt of any amount of monetary benefit from any non-Department source in payment for carrying out any professional responsibilities.
(e) The Secretary shall establish a leave transfer program for the benefit of health-care professionals in positions listed in section 7421(b) of this title . The Secretary may also establish a leave bank program for the benefit of such health-care professionals. To the maximum extent feasible— the leave transfer program shall provide the same or similar requirements and conditions as are provided for the program established by the Director of the Office of Personnel Management under subchapter III of chapter 63 of title 5; and any leave bank program established pursuant to paragraph (1) shall be consistent with the requirements and conditions provided for agency leave bank programs in subchapter IV of such chapter. Participation by a health-care professional in the leave transfer program established pursuant to paragraph (1), and in any leave bank program established pursuant to such paragraph, shall be voluntary. The Secretary may not require any health-care professional to participate in such a program. The Secretary and the Director of the Office of Personnel Management may enter into an agreement that permits health-care professionals referred to in paragraph (1) to participate in the leave transfer program established by the Director of the Office of Personnel Management under subchapter III of chapter 63 of title 5 or in any leave bank program established for other employees of the Department pursuant to subchapter IV of chapter 63 of title 5, or both. Participation of such health-care professionals in a leave transfer program or a leave bank program pursuant to an agreement entered into under subparagraph (A) shall be subject to such requirements and conditions as may be prescribed in such agreement. The Secretary is not required to establish a leave transfer program for any personnel permitted to participate in a leave transfer program pursuant to an agreement referred to in paragraph (4).
(f) The Secretary may purchase promotional items of nominal value for use in the recruitment of individuals for employment under this chapter. The Secretary shall prescribe guidelines for the administration of the preceding sentence.
§ 7424 Travel expenses of certain employees
(a) The Secretary may pay the expenses (other than membership fees) of persons described in sections 7306 and 7401(1) of this title (including persons in positions described in section 7401(1) of this title who are appointed on a temporary full-time basis or a part-time basis under section 7405 of this title ) who are detailed by the Under Secretary for Health to attend meetings of associations for the promotion of medical and related science.
(b) The Secretary may prescribe regulations establishing conditions under which officers and employees of the Administration who are nationally recognized principal investigators in medical research may be permitted to accept payment, in cash or in kind, from non-Federal agencies, organizations, and individuals for travel and such reasonable subsistence expenses as are approved by the Secretary pursuant to such regulations— in connection with their attendance at meetings or in performing advisory services concerned with the functions or activities of the Department; or in connection with acceptance of significant awards or with activity related thereto concerned with functions or activities of the Department. Any such payment may be retained by such officers and employees to cover the cost of such expenses or shall be deposited to the credit of the appropriation from which the cost of such expenses is paid, as may be provided in such regulations.
§ 7425 Employees: laws not applicable
(a) Physicians, dentists, nurses, and other health-care professionals employed by the Administration and appointed under section 7306, 7401(1), 7405, or 7406 of this chapter are not subject to the following provisions of law: Section 413 of the Civil Service Reform Act of 1978. Subchapter II of chapter 31 of title 5. Subchapter VIII of chapter 33 of title 5. Subchapter V of chapter 35 of title 5. Subchapter II of chapter 43 of title 5. Section 4507 of title 5 . Subchapter VIII of chapter 53 of title 5. Subchapter V of chapter 75 of title 5.
(b) Except as provided in subsection (c), and notwithstanding any other provision of law, no provision of title 5 or any other law pertaining to the civil service system which is inconsistent with any provision of section 7306 of this title or this chapter shall be considered to supersede, override, or otherwise modify such provision of that section or this chapter except to the extent that such provision of title 5 or of such other law specifically provides, by specific reference to a provision of this chapter, or such provision to be superseded, overridden, or otherwise modified.
(c) Notwithstanding any other provision of this subchapter, the Administration shall provide to individuals appointed to any position described in section 7421(b) who are employed for compensation by the Administration, family and medical leave in the same manner and subject to the same limitations to the maximum extent practicable, as family and medical leave is provided under subchapter V of chapter 63 of title 5 to employees, as defined in section 6381(1) of such title.
§ 7426 Retirement rights
(a) Except as provided in subsection (b), persons appointed to the Administration shall be subject to the provisions of and entitled to benefits under subchapter III of chapter 83 of title 5 or subchapter II of chapter 84 of title 5, whichever is applicable.
(b) In computing the annuity under subchapter III of chapter 83, or subchapter II of chapter 84, of title 5 of an individual who retires under such subchapter (other than under section 8337 or 8451 of such title) after December 31, 1981 , and who served at any time on a less-than-full-time basis in a position in the Administration to which such individual was appointed under subchapter I— for the purpose of determining such individual’s average pay, as defined by section 8331(4) or 8401(3) of title 5, whichever is applicable, the annual rate of basic pay for full-time service shall be deemed to be such individual’s rate of basic pay; and the amount of such individual’s annuity as computed under section 8339 or 8415 of title 5 (before application of any reduction required by subsection (i) of section 8339) shall be multiplied by the fraction equal to the ratio that that individual’s total full-time equivalent service bears to that individual’s creditable service as determined under section 8332 or 8411 of title 5, whichever is applicable. For the purposes of paragraph (1)(B), an individual’s full-time equivalent service is the individual’s creditable service as determined under section 8332 or 8411 of title 5, whichever is applicable, except that any period of service of such individual served on a less-than-full-time basis shall be prorated based on the fraction such service bears to full-time service. For the purposes of the preceding sentence, full-time service shall be considered to be 80 hours of service per biweekly pay period. A survivor annuity computed under section 8341, or subchapter IV of chapter 84, of title 5 based on the service of an individual described in paragraph (1) shall be computed based upon such individual’s annuity as determined in accordance with such paragraph.
(c) The provisions of subsection (b) shall not apply to the part-time service before April 7, 1986 , of a registered nurse, physician assistant, or expanded-function dental auxiliary. In computing the annuity under the applicable provision of law specified in that subsection of an individual covered by the preceding sentence, the service described in that sentence shall be credited as full-time service.
§ 7431 Pay
(a) Elements of Pay.— Pay of physicians, podiatrists, optometrists, and dentists in the Veterans Health Administration shall consist of three elements as follows: Base pay as provided for under subsection (b). Market pay as provided for under subsection (c). Performance pay as provided under subsection (d).
(b) Base Pay.— One element of pay for physicians, podiatrists, optometrists, and dentists shall be base pay. Base pay shall meet the following requirements: Each physician, podiatrist, optometrist and dentist is entitled to base pay determined under the Physician, Podiatrist, and Dentist Base and Longevity Pay Schedule. The Physician, Podiatrist, and Dentist Base and Longevity Pay Schedule is composed of 15 rates of base pay designated, from the lowest rate of pay to the highest rate of pay, as base pay steps 1 through 15. The rate of base pay payable to a physician, podiatrist, optometrist or dentist is based on the total number of the years of the service of the physician, podiatrist, optometrist or dentist in the Veterans Health Administration as follows: For a physician, podiatrist, optometrist or dentist with total service of: The rate of base pay is the rate payable for: two years or less step 1 more than 2 years and not more than 4 years step 2 more than 4 years and not more than 6 years step 3 more than 6 years and not more than 8 years step 4 more than 8 years and not more than 10 years step 5 more than 10 years and not more than 12 years step 6 more than 12 years and not more than 14 years step 7 more than 14 years and not more than 16 years step 8 more than 16 years and not more than 18 years step 9 more than 18 years and not more than 20 years step 10 more than 20 years and not more than 22 years step 11 more than 22 years and not more than 24 years step 12 more than 24 years and not more than 26 years step 13 more than 26 years and not more than 28 years step 14 more than 28 years step 15. At the same time as rates of basic pay are increased for a year under section 5303 of title 5 , the Secretary shall increase the amount of base pay payable under this subsection for that year by a percentage equal to the percentage by which rates of basic pay are increased under such section for that year. The non-foreign cost of living adjustment allowance authorized under section 5941 of title 5 for physicians, podiatrists, optometrists, and dentists whose pay is set under this section shall be determined as a percentage of base pay only.
(c) Market Pay.— One element of pay for physicians, podiatrists, optometrists, and dentists shall be market pay. Market pay shall meet the following requirements: Each physician, podiatrist, optometrist and dentist is eligible for market pay. Market pay shall consist of pay intended to reflect the recruitment and retention needs for the specialty or assignment (as defined by the Secretary) of a particular physician, podiatrist, optometrist or dentist in a facility of the Department of Veterans Affairs. The annual amount of the market pay payable to a physician, podiatrist, optometrist or dentist shall be determined by the Secretary on a case-by-case basis. The determination of the amount of market pay of a physician, podiatrist, optometrist or dentist shall take into account— the level of experience of the physician, podiatrist, optometrist or dentist in the specialty or assignment of the physician, podiatrist, optometrist or dentist; the need for the specialty or assignment of the physician, podiatrist, optometrist or dentist at the medical facility of the Department concerned; the health care labor market for the specialty or assignment of the physician, podiatrist, optometrist or dentist, which may cover any geographic area the Secretary considers appropriate for the specialty or assignment; the board certifications, if any, of the physician, podiatrist, optometrist or dentist; the prior experience, if any, of the physician, podiatrist, optometrist or dentist as an employee of the Veterans Health Administration; and such other considerations as the Secretary considers appropriate. The amount of market pay of a physician, podiatrist, optometrist or dentist shall be evaluated by the Secretary not less often than once every 24 months. The amount of market pay may be adjusted as the result of an evaluation under this paragraph. A physician, podiatrist, optometrist or dentist whose market pay is evaluated under this paragraph shall receive written notice of the results of such evaluation in accordance with procedures prescribed under section 7433 of this title . Such a notice shall include a statement of whether the market pay will increase, decrease, or remain unchanged following such evaluation. No adjustment of the amount of market pay of a physician, podiatrist, optometrist or dentist under paragraph (5) may result in a reduction of the amount of market pay of the physician, podiatrist, optometrist or dentist while in the same position or assignment at the medical facility of the Department concerned, unless there is a change in board certification or reduction of privileges. The Secretary shall ensure that each physician, podiatrist, optometrist, and dentist in the Veterans Health Administration is— advised, on an annual basis, of the criteria described in subparagraph (F) of paragraph (4); evaluated in accordance with such criteria; and compensated in accordance with— applicable assignment and pay levels, subject to relevant pay limitations; and the extent to which such criteria are met. Not later than 120 days after the end of each fiscal year, the Secretary shall submit to the Committees on Veterans’ Affairs of the Senate and the House of Representatives a report that includes the following: A list of each facility and specialty that conducted an evaluation of pay during the period covered by the report. For each evaluation described in subparagraph (A)— a list of occupations for which pay was evaluated, disaggregated by medical specialty, number of authorized full-time employees, and onsite full-time employees as of the date of the evaluation; the date such evaluation was completed; whether a market pay adjustment was made following the evaluation per each occupation and specialty evaluated; whether applicable employees were notified of such evaluation; whether local labor partners were notified of such evaluation; and in the case of an evaluation that resulted in an adjustment of pay— the date such adjustment— was implemented; and became effective; and the percentage of employees of each occupation and specialty for which pay was adjusted pursuant to such evaluation. A list of facilities of the Department that have not conducted an evaluation of market pay, pursuant to paragraph (5), during the 18-month-period that precedes the date of the submission of such report.
(d) Performance Pay.— One element of pay for physicians, podiatrists, optometrists, and dentists shall be performance pay. Performance pay shall be paid to a physician, podiatrist, optometrist or dentist on the basis of the physician’s or dentist’s achievement of specific goals and performance objectives prescribed by the Secretary. The Secretary shall ensure that each physician, podiatrist, optometrist and dentist of the Department is advised of the specific goals or objectives that are to be measured by the Secretary in determining the eligibility of that physician, podiatrist, optometrist or dentist for performance pay. The amount of the performance pay payable to a physician, podiatrist, optometrist or dentist may vary annually on the basis of individual achievement or attainment of the goals or objectives applicable to the physician, podiatrist, optometrist or dentist under paragraph (2). The amount of performance pay payable to a physician, podiatrist, optometrist or dentist in a fiscal year shall be determined in accordance with regulations prescribed by the Secretary, but may not exceed the lower of— $15,000; or the amount equal to 7.5 percent of the sum of the base pay and the market pay payable to such physician, podiatrist, optometrist or dentist in that fiscal year. A failure to meet goals or objectives applicable to a physician, podiatrist, optometrist or dentist under paragraph (2) may not be the sole basis for an adverse personnel action against that physician, podiatrist, optometrist or dentist.
(e) Requirements and Limitations on Total Pay.— Not less often than once every two years, the Secretary shall prescribe for Department-wide applicability the minimum and maximum amounts of annual pay that may be paid under this section to physicians and the minimum and maximum amounts of annual pay that may be paid under this section to podiatrists and dentists. The Secretary may prescribe for Department-wide applicability under this paragraph separate minimum and maximum amounts of pay for a specialty or assignment. If the Secretary prescribes separate minimum and maximum amounts for a specialty or assignment, the Secretary may establish up to four tiers of minimum and maximum amounts for such specialty or assignment and prescribe for each tier a minimum amount and a maximum amount that the Secretary determines appropriate for the professional responsibilities, professional achievements, and administrative duties of the physicians, podiatrists, optometrists, or dentists (as the case may be) whose pay is set within that tier. Amounts prescribed under this paragraph shall be published in the Federal Register, and shall not take effect until at least 60 days after the date of publication. Except as provided in paragraph (3) and subject to paragraph (4), the sum of the total amount of the annual rate of base pay payable to a physician, podiatrist, optometrist or dentist under subsection (b) and the market pay determined for the physician, podiatrist, optometrist or dentist under subsection (c) may not be less than the minimum amount, nor more than the maximum amount, applicable to specialty or assignment of the physician, podiatrist, optometrist or dentist under paragraph (1). The sum of the total amount of the annual rate of base pay payable to a physician, podiatrist, optometrist or dentist under subsection (b) and the market pay determined for the physician, podiatrist, optometrist or dentist under subsection (c) may exceed the maximum amount applicable to the specialty or assignment of the physician, podiatrist, optometrist or dentist under paragraph (1) as a result of an adjustment under paragraph (3) or (4) of subsection (b). Except as provided in sections 7404A(c) and 7410(a)(2) of this title, in no case may the total amount of compensation paid to a physician, podiatrist, optometrist or dentist under this title in any year exceed the amount of annual compensation (excluding expenses) specified in section 102 of title 3 . Notwithstanding any compensation or pay limitations under this title or title 5, the Secretary may authorize the Under Secretary for Health to pay physicians, podiatrists, optometrists, and dentists— awards authorized under this title; advance payments, recruitment or relocation bonuses, and retention allowances authorized under section 7410(a) of this title or as otherwise provided by law; incentives or bonuses under section 706 of this title or as otherwise provided by law; and earnings from fee-basis appointments under section 7405(a)(2) of this title . The Secretary may waive any pay limitation described in this section (including tier limitations) that the Secretary determines necessary for the recruitment or retention of critical health care personnel whom the Secretary determines would provide direct patient care. Priority for such waivers shall be given for positions, locations, and care provided through agreements that are costly to the Department. The Chief Human Capital Officer of the Department, the Chief Financial Officer of the Department, and the Office of the General Counsel of the Department shall review any waiver issued under subparagraph (A). During the period the authority under subparagraph (A) is effective, the Secretary may not issue more than 300 waivers under such subparagraph. The Secretary may prescribe requirements, limitations, and other considerations for waivers under such subparagraph. Not later than 180 days after the date of the enactment of the Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act, and annually thereafter, the Secretary shall submit to the Committees on Veterans’ Affairs of the Senate and the House of Representatives a report that includes— any updates to the requirements, limitations, and considerations prescribed under subparagraph (B) during the period covered by the report; a description of the findings of each review, if any, conducted pursuant to subparagraph (C); a description of each waiver under subparagraph (A) in effect as of the date of the submission of the report, including the— duty location, position, specialty, market and performance considerations for the waiver; and impact, if any, of the waiver on care furnished by the Department pursuant to an agreement regarding the geographic area; and a list of any separation actions during the period covered by the report with respect to a position for which a waiver under subparagraph (A) is in effect. The authority of the Secretary under subparagraph (A) shall terminate on the last day of the third full fiscal year following the date of the enactment of the Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act.
(f) Treatment of Pay.— Pay under subsections (b) and (c) of this section shall be considered pay for all purposes, including retirement benefits under chapters 83 and 84 of title 5 and other benefits.
(g) Ancillary Effects of Decreases in Pay.— A decrease in pay of a physician, podiatrist, optometrist or dentist resulting from an adjustment in the amount of market pay of the physician, podiatrist, optometrist or dentist under subsection (c) shall not be treated as an adverse action. If the pay of a physician, podiatrist, optometrist or dentist is reduced under this subchapter as a result of an involuntary reassignment in connection with a disciplinary action taken against the physician, podiatrist, optometrist or dentist, the involuntary reassignment shall be subject to appeal under subchapter V of this chapter.
(h) Delegation of Responsibilities.— The Secretary may delegate to an appropriate officer or employee of the Department any responsibility of the Secretary under subsection (c), (d), or (e) except for the responsibilities of the Secretary under subsection (e)(1).
§ 7432 Pay of Under Secretary for Health
(a) Base Pay.— The base pay of the Under Secretary for Health shall be the annual rate of basic pay for positions at Level III of the Executive Schedule under section 5314 of title 5 .
(b) Market Pay.— In the case of an Under Secretary for Health who is also a physician, podiatrist, optometrist, or dentist, in addition to the base pay specified in subsection (a) the Under Secretary for Health may also be paid the market pay element of pay of physicians and dentists under section 7431(c) of this title . The amount of market pay of the Under Secretary for Health under this subsection shall be established by the Secretary. In establishing the amount of market pay of the Under Secretary for Health under this subsection, the Secretary shall utilize an appropriate health care labor market selected by the Secretary for purposes of this subsection.
(c) Treatment of Pay.— Pay under this section shall be considered pay for all purposes, including retirement benefits under chapters 83 and 84 of title 5 and other benefits.
§ 7433 Administrative matters
(a) Regulations.— The Secretary shall prescribe regulations relating to the pay of physicians, optometrists, podiatrists, and dentists in the Veterans Health Administration under this subchapter.
(b) Recommendations and Views.— In prescribing the regulations, the Secretary shall take into account the recommendations of the Under Secretary for Health on the administration of this subchapter. In formulating recommendations for the purpose of this subsection, the Under Secretary shall request the views of representatives of labor organizations that are exclusive representatives of physicians, optometrists, podiatrists, and dentists of the Department and the views of representatives of professional organizations of physicians, optometrists, podiatrists, and dentists of the Department.
§ 7451 Nurses and other health-care personnel: competitive pay
(a) It is the purpose of this section to ensure, by a means providing increased responsibility and authority to directors of Department health-care facilities, that the rates of basic pay for health-care personnel positions described in paragraph (2) in each Department health-care facility (including the rates of basic pay of personnel employed in such positions on a part-time basis) are sufficient for that facility to be competitive, on the basis of pay and other employee benefits, with non-Department health-care facilities in the same labor-market area in the recruitment and retention of qualified personnel for those positions. The health-care personnel positions referred to in paragraph (1) (hereinafter in this section referred to as “covered positions”) are the following: Registered nurse. Physician assistant. Such positions referred to in paragraphs (1) and (3) of section 7401 of this title (other than the positions of physician, optometrist, dentist, registered nurse, physician assistant, and podiatrist) as the Secretary may determine upon the recommendation of the Under Secretary for Health. Except as provided in subparagraph (B), the rates of basic pay for covered positions in the Department shall be established and adjusted in accordance with this section instead of subsection (b)(1) of section 7404 of this title or chapter 53 of title 5. Under such regulations as the Secretary shall prescribe, the Secretary shall establish and adjust the rates of basic pay for covered positions at the following health-care facilities in order to provide rates of basic pay that enable the Secretary to recruit and retain sufficient numbers of health-care personnel in such positions at those facilities: The Veterans Memorial Medical Center in the Republic of the Philippines. Department of Veterans Affairs health-care facilities located outside the contiguous States, Alaska, and Hawaii. The Secretary, after receiving the recommendation of the Under Secretary for Health, shall prescribe regulations setting forth criteria and procedures to carry out this section and section 7452 of this title . Requirements in such regulations for directors to provide and maintain documentation of actions taken under this section shall require no more documentation than the minimum essential for responsible administration.
(b) The Secretary shall maintain the five grade levels for nurses employed by the Department under section 7401(1) of this title as specified in the Nurse Schedule in section 7404(b) of this title . The Secretary shall, pursuant to regulations prescribed to carry out this subchapter, establish grades for other covered positions as the Secretary considers appropriate.
(c) For each grade in a covered position, there shall be a range of basic pay. The maximum rate of basic pay for a grade shall be 133 percent of the minimum rate of basic pay for the grade, except that, if the Secretary determines that a higher maximum rate is necessary with respect to any such grade in order to recruit and retain a sufficient number of high-quality health-care personnel, the Secretary may raise the maximum rate of basic pay for that grade to a rate not in excess of 175 percent of the minimum rate of basic pay for the grade. Whenever the Secretary exercises the authority under the preceding sentence to establish the maximum rate of basic pay at a rate in excess of 133 percent of the minimum rate for that grade, the Secretary shall, in the next annual report required by subsection (g), 1 provide justification for doing so to the Committees on Veterans’ Affairs of the Senate and House of Representatives. The maximum rate of basic pay for any grade for a covered position may not exceed— in the case of an advanced practice nurse, the maximum rate of basic pay established for positions in level I of the Executive Schedule under section 5312 of title 5 ; in the case of a physician assistant, the maximum rate of basic pay established for positions in level I of the Executive Schedule under section 5312 of title 5 ; in the case of a registered nurse, the maximum rate of basic pay established for positions in level II of the Executive Schedule under section 5313 of title 5 ; and in the case of any other covered position, the maximum rate of basic pay established for positions in level IV of the Executive Schedule under section 5315 of title 5 . The maximum rate of basic pay for a grade for the position of certified registered nurse anesthetist pursuant to an adjustment under subsection (d) may exceed the maximum rate otherwise provided in subparagraph (A). The range of basic pay for each such grade shall be divided into equal increments, known as “steps”. The Secretary shall prescribe the number of steps. Each grade in a covered position shall have the same number of steps. Rates of pay within a grade may not be established at rates other than whole steps. Any increase (other than an adjustment under subsection (d)) within a grade in the rate of basic pay payable to an employee in a covered position shall be by one or more of such step increments. The director of each medical center of the Department shall submit to the Secretary an annual locality pay survey and rates of basic pay for covered positions at such medical center to ensure that pay rates remain competitive in the local labor market. Not less than once per fiscal year, the Secretary shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate a report on rates of basic pay for covered positions at medical centers of the Department.
(d) Subject to subsection (e), the rates of basic pay for each grade in a covered position shall be adjusted periodically in accordance with this subsection in order to achieve the purposes of this section. Such adjustments shall be made— whenever there is an adjustment under section 5303 of title 5 in the rates of pay under the General Schedule, with the adjustment under this subsection to have the same effective date and to be by the same percentage as the adjustment in the rates of basic pay under the General Schedule; and at such additional times as the director of a Department health-care facility, with respect to employees in that grade at that facility, or the Under Secretary for Health, with respect to covered Regional and Central Office employees in that grade, determines. An adjustment in rates of basic pay under this subsection for a grade shall be carried out by adjusting the amount of the minimum rate of basic pay for that grade in accordance with paragraph (3) and then adjusting the other rates for that grade to conform to the requirements of subsection (c). Except as provided in paragraph (1)(A), such an adjustment in the minimum rate of basic pay for a grade shall be made by the director of a Department health-care facility so as to achieve consistency with the beginning rate of compensation for corresponding health-care professionals in the Bureau of Labor Statistics (BLS) labor-market area of that facility. In the case of a Department health-care facility located in an area for which there is current information, based upon an industry-wage survey by the Bureau of Labor Statistics for that labor market, on compensation for corresponding health-care professionals for the BLS labor-market area of that facility, the director of the facility concerned shall use that information as the basis for making adjustments in rates of pay under this subsection. Whenever the Bureau of Labor Statistics releases the results of a new industry-wage survey for that labor market that includes information on compensation for corresponding health-care professionals, the director of that facility shall determine, not later than 30 days after the results of the survey are released, whether an adjustment in rates of pay for employees at that facility for any covered position is necessary in order to meet the purposes of this section. If the director determines that such an adjustment is necessary, the adjustment, based upon the information determined in the survey, shall take effect on the first day of the first pay period beginning after that determination. In the case of a Department health-care facility located in an area for which the Bureau of Labor Statistics does not have current information on compensation for corresponding health-care professionals for the labor-market area of that facility for any covered position, the director of that facility shall conduct a survey in accordance with this subparagraph and shall adjust the amount of the minimum rate of basic pay for grades in that covered position at that facility based upon that survey. To the extent practicable, the director shall use third-party industry wage surveys to meet the requirements of the preceding sentence. Any such survey shall be conducted in accordance with regulations prescribed by the Secretary. Those regulations shall be developed in consultation with the Secretary of Labor in order to ensure that the director of a facility collects information that is valid and reliable and is consistent with standards of the Bureau. The survey should be conducted using methodology comparable to that used by the Bureau in making industry-wage surveys except to the extent determined infeasible by the Secretary. To the extent practicable, all surveys conducted pursuant to this subparagraph or subparagraph (A) shall include the collection of salary midpoints, actual salaries, lowest and highest salaries, average salaries, bonuses, incentive pays, differential pays, actual beginning rates of pay, and such other information needed to meet the purpose of this section. Upon conducting a survey under this subparagraph, the director concerned shall determine, not later than 30 days after the date on which the collection of information through the survey is completed or published, whether an adjustment in rates of pay for employees at that facility for any covered position is necessary in order to meet the purposes of this section. If the director determines that such an adjustment is necessary, the adjustment, based upon the information determined in the survey, shall take effect on the first day of the first pay period beginning after that determination. A director of a Department health-care facility may use data on the compensation paid to certified registered nurse anesthetists who are employed on a salary basis by entities that provide anesthesia services through certified registered nurse anesthetists in the labor-market area only if the director— has conducted a survey of compensation for certified registered nurse anesthetists in the local labor-market area of the facility under subparagraph (B); has used all available administrative authority with regard to collection of survey data; and makes a determination (under regulations prescribed by the Secretary) that such survey methods are insufficient to permit the adjustments referred to in subparagraph (B) for such nurse anesthetists employed by the facility. For the purposes of this subparagraph, certified registered nurse anesthetists who are so employed by such entities shall be deemed to be corresponding health-care professionals to the certified registered nurse anesthetists employed by the facility. The Under Secretary for Health shall prescribe regulations providing for the adjustment of the rates of basic pay for Regional and Central Office employees in covered positions in order to assure that those rates are sufficient and competitive. The director of a facility or Under Secretary for Health may not adjust rates of basic pay under this subsection for any pay grade so that the minimum rate of basic pay for that grade is greater than the beginning rates of compensation for corresponding positions at non-Department health-care facilities. The Under Secretary for Health shall provide appropriate education, training, and support to directors of Department health care facilities in the conduct and use of surveys, including the use of third-party surveys, under this paragraph. If the director of a Department health-care facility, or the Under Secretary for Health with respect to Regional and Central Office employees, determines, after any survey under paragraph (3)(B) that it is not necessary to adjust the rates of basic pay for employees in a grade of a covered position at that facility in order to carry out the purpose of this section, such an adjustment for employees at that facility in that grade shall not be made. Information collected by the Department in surveys conducted under this subsection is not subject to disclosure under section 552 of title 5 . In this subsection— The term “beginning rate of compensation”, with respect to health-care personnel positions in non-Department health-care facilities corresponding to a grade of a covered position, means the sum of— the minimum rate of pay established for personnel in such positions who have education, training, and experience equivalent or similar to the education, training, and experience required for health-care personnel employed in the same category of Department covered positions; and other employee benefits for those positions to the extent that those benefits are reasonably quantifiable. The term “corresponding”, with respect to health-care personnel positions in non-Department health-care facilities, means those positions for which the education, training, and experience requirements are equivalent or similar to the education, training, and experience requirements for health-care personnel positions in Department health-care facilities.
(e) An adjustment in a rate of basic pay under subsection (d) may not reduce the rate of basic pay applicable to any grade of a covered position. The director of a Department health-care facility, in determining whether to carry out a wage survey under subsection (d)(3) with respect to rates of basic pay for a grade of a covered position, may not consider as a factor in such determination the absence of a current recruitment or retention problem for personnel in that grade of that position. The director shall make such a determination based upon whether, in accordance with criteria established by the Secretary, there is a significant pay-related staffing problem at that facility in any grade for a position. If the director determines that there is such a problem, or that such a problem is likely to exist in the near future, the Director shall provide for a wage survey in accordance with subsection (d)(3). The Under Secretary for Health may, to the extent necessary to carry out the purposes of subsection (d), modify any determination made by the director of a Department health-care facility with respect to adjusting the rates of basic pay applicable to covered positions. If the determination of the director would result in an adjustment in rates of basic pay applicable to covered positions, any action by the Under Secretary under the preceding sentence shall be made before the effective date of such pay adjustment. Upon such action by the Under Secretary, any adjustment shall take effect on the first day of the first pay period beginning after such action. The Secretary shall ensure that the Under Secretary establishes a mechanism for the timely exercise of the authority in this paragraph. Each director of a Department health-care facility shall provide to the Secretary, not later than July 31 each year, a report on staffing for covered positions at that facility. The report shall include the following: Information on turnover rates and vacancy rates for each covered position, including a comparison of those rates with the rates for the preceding three years. The director’s findings concerning the review and evaluation of the facility’s staffing situation, including whether there is, or is likely to be, in accordance with criteria established by the Secretary, a significant pay-related staffing problem at that facility for any covered position and, if so, whether a wage survey was conducted, or will be conducted with respect to that position. In any case in which the director conducts such a wage survey during the period covered by the report, information describing the survey and any actions taken or not taken based on the survey, and the reasons for taking (or not taking) such actions. In any case in which the director conducts such a wage survey during the period covered by the report and makes adjustment in rates of basic pay applicable to one or more covered positions at the facility, information on the methodology used in making such adjustment or adjustments. In any case in which the director, after finding that there is, or is likely to be, in accordance with criteria established by the Secretary, a significant pay-related staffing problem at that facility for any covered position, determines not to conduct a wage survey with respect to that position, a statement of the reasons why the director did not conduct such a survey. Not later than September 30 of each year, the Secretary shall submit to the Committees on Veterans’ Affairs of the Senate and House of Representatives a report on staffing for covered positions at Department health care facilities. Each such report shall include the following: A summary and analysis of the information contained in the most recent reports submitted by facility directors under paragraph (4). The information for each such facility specified in paragraph (4). Upon the request of an individual described in subparagraph (B) for a report provided under paragraph (4) with respect to a Department health-care facility, the Under Secretary for Health or the director of such facility shall provide to the individual the most current report for such facility provided under such paragraph. An individual described in this subparagraph is— an individual in a covered position at a Department health-care facility; or a representative of the labor organization representing that individual who is designated by that individual to make the request.
(f) For the purposes of this section, the term “health-care facility” means a medical center, an independent outpatient clinic, or an independent domiciliary facility.
§ 7452 Nurses and other health-care personnel: administration of pay
(a) Regulations prescribed under section 7451(a) of this title shall provide that whenever an employee in a covered position is given a new duty assignment which is a promotion, the rate of basic pay of that employee shall be increased at least one step increment in that employee’s grade. A nurse serving in a head nurse position shall while so serving receive basic pay at a rate two step increments above the rate that would otherwise be applicable to the nurse. If such a nurse is in the highest or next-to-highest step for that nurse’s grade, the preceding sentence shall be applied by extrapolation to create additional steps only for the purposes of this paragraph. The limitation in section 7451(c)(1) of this title shall not apply with respect to increased basic pay under this paragraph. An employee in a covered position who is promoted to the next higher grade shall be paid in that grade at a step having a rate of basic pay that is greater than the rate of basic pay applicable to the employee in a covered position on the day before the effective date of the promotion.
(b) Under regulations which the Secretary prescribes for the administration of this section, the director of a Department health-care facility (A) shall pay a cash bonus (in an amount to be determined by the director not to exceed $2,000) to an employee in a covered position at that facility who becomes certified in a specialty recognized by the Department, and (B) may provide such a bonus to an employee in such a position who has demonstrated both exemplary job performance and exemplary job achievement. The authority of the Secretary under this subsection is in addition to any other authority of the Secretary to provide job performance incentives. The Secretary shall include in the annual report under section 7451(g) 1 of this title a discussion of the use during the period covered by the report of the payment of bonuses under this subsection and other job performance incentives available to the Secretary.
(c) The Secretary shall provide (in regulations prescribed for the administration of this section) that the director of a Department health-care facility, in making a new appointment of a person under section 7401(1) of this title as an employee in a covered position for employment at that facility, may make that appointment at a rate of pay described in paragraph (3) without being subject to a requirement for prior approval at any higher level of authority within the Department in any case in which the director determines that it is necessary to do so in order to obtain the services of employees in covered positions in cases in which vacancies exist at that health-care facility. Such a determination may be made by the director of a health-care facility only in order to recruit employees in covered positions with specialized skills, especially employees with skills which are especially difficult or demanding. A rate of pay referred to in paragraph (1) is a rate of basic pay in excess of the minimum rate of basic pay applicable to the grade in which the appointment is made (but not in excess of the maximum rate of basic pay for that grade). Whenever the director of a health-care facility makes an appointment described in paragraph (1) without prior approval at a higher level of authority within the Department, the director shall— state in a document the reasons for employing the employee in a covered position at a rate of pay in excess of the minimum rate of basic pay applicable to the grade in which the employee is appointed (and retain that document on file); and in the first budget documents submitted to the Secretary by the director after the employee is employed, include documentation for the need for such increased rates of basic pay described in clause (A). Whenever the director of a health-care facility makes an appointment described in paragraph (1) on the basis of a determination described in paragraph (2), the covered employee appointed may continue to receive pay at a rate higher than that which would otherwise be applicable to that employee only so long as the employee continues to serve in a position requiring the specialized skills with respect to which the determination was made.
(d) Whenever the director of a health-care facility makes an appointment described in subsection (c)(1), the director may (without a regard to any requirement for prior approval at any higher level of authority within the Department) increase the rate of pay of other employees in the same covered position at that facility who are in the grade in which the appointment is made and are serving in a position requiring the specialized skills with respect to which the determination under subsection (c)(2) concerning the appointment was made. Any such increase shall continue in effect with respect to any employee only so long as the employee continues to serve in such a position.
(e) An employee in a covered position employed under section 7401(1) of this title who (without a break in employment) transfers from one Department health-care facility to another may not be reduced in grade or step within grade (except pursuant to a disciplinary action otherwise authorized by law) if the duties of the position to which the employee transfers are similar to the duties of the position from which the employee transferred. The rate of basic pay of such employee shall be established at the new health-care facility in a manner consistent with the practices at that facility for an employee of that grade and step, except that in the case of an employee whose transfer (other than pursuant to a disciplinary action otherwise authorized by law) to another health-care facility is at the request of the Secretary, the Secretary may provide that for at least the first year following such transfer the employee shall be paid at a rate of basic pay up to the rate applicable to such employee before the transfer, if the Secretary determines that such rate of pay is necessary to fill the position. Whenever the Secretary exercises the authority under the preceding sentence relating to the rate of basic pay of a transferred employee, the Secretary shall, in the next annual report required under section 7451(g) 1 of this title, provide justification for doing so.
(f) In this section, the term “covered position” has the meaning given that term in section 7451 of this title .
(g) In order to recruit and retain highly qualified Department nurse executives, the Secretary may, in accordance with regulations prescribed by the Secretary, pay special pay to the nurse executive at each location as follows: Each Department health care facility. The Central Office. The amount of special pay paid to a nurse executive under paragraph (1) shall be not less than 100,000. The amount of special pay paid to a nurse executive under paragraph (1) shall be based on factors such as the grade of the nurse executive position, the scope and complexity of the nurse executive position, the personal qualifications of the nurse executive, the characteristics of the health care facility concerned, the nature and number of specialty care units at the health care facility concerned, demonstrated difficulties in recruitment and retention of nurse executives at the health care facility concerned, and such other factors as the Secretary considers appropriate. Special pay paid to a nurse executive under paragraph (1) shall be in addition to any other pay (including basic pay) and allowances to which the nurse executive is entitled, and shall be considered pay for all purposes, including retirement benefits under chapters 83 and 84 of title 5, and other benefits, but shall not be considered basic pay for purposes of adverse actions under subchapter V of this chapter.
§ 7453 Nurses: additional pay
(a) In addition to the rate of basic pay provided for nurses, a full-time nurse or part-time nurse shall receive additional pay as provided by this section.
(b) A nurse performing service, any part of which is within the period commencing at 6 postmeridian and ending at 6 antemeridian, shall receive additional pay for each hour of such service at a rate equal to 10 percent of the nurse’s hourly rate of basic pay if at least four hours of such service fall between 6 postmeridian and 6 antemeridian. When less than four hours of such service fall between 6 postmeridian and 6 antemeridian, the nurse shall be paid the differential for each hour of service performed between those hours.
(c) A nurse performing service, any part of which is within the period commencing at midnight Friday and ending at midnight Sunday, shall receive additional pay for each hour of such service at a rate equal to 25 percent of such nurse’s hourly rate of basic pay.
(d) A nurse performing service on a holiday designated by Federal statute or Executive order shall receive for each hour of such service the nurse’s hourly rate of basic pay, plus additional pay at a rate equal to such hourly rate of basic pay, for that holiday service, including overtime service. Any service required to be performed by a nurse on such a designated holiday shall be deemed to be a minimum of two hours in duration.
(e) A nurse performing officially ordered or approved hours of service in excess of 40 hours in an administrative workweek, or in excess of eight consecutive hours, shall receive overtime pay for each hour of such additional service. The overtime rates shall be one and one-half times such nurse’s hourly rate of basic pay. For the purposes of this subsection, overtime must be of at least 15 minutes duration in a day to be creditable for overtime pay. Compensatory time off in lieu of pay for service performed under the provisions of this subsection shall not be permitted, except as voluntarily requested in writing by the nurse in question. Any excess service performed under this subsection on a day when service was not scheduled for such nurse, or for which such nurse is required to return to the nurse’s place of employment, shall be deemed to be a minimum of two hours in duration. For the purposes of this subsection, the period of a nurse’s officially ordered or approved travel away from such nurse’s duty station may not be considered to be hours of service unless— such travel occurs during such nurse’s period of service; or such travel— involves the performance of services while traveling, is incident to travel that involves the performance of services while traveling, is carried out under arduous conditions as determined by the Secretary, or results from an event which could not be scheduled or controlled administratively.
(f) For the purpose of computing the additional pay provided by subsection (b), (c), (d), or (e), a nurse’s hourly rate of basic pay shall be derived by dividing such nurse’s annual rate of basic pay by 2,080.
(g) When a nurse is entitled to two or more forms of additional pay under subsection (b), (c), (d), or (e) for the same period of service, the amounts of such additional pay shall be computed separately on the basis of such nurse’s hourly rate of basic pay, except that no overtime pay as provided in subsection (e) shall be payable for overtime service performed on a holiday designated by Federal statute or Executive order in addition to pay received under subsection (d) for such service.
(h) A nurse who is officially scheduled to be on call outside such nurse’s regular hours or on a holiday designated by Federal statute or Executive order shall be paid for each hour of such on-call duty, except for such time as such nurse may be called back to work, at a rate equal to 10 percent of the hourly rate for excess service as provided in subsection (e).
(i) Any additional pay paid pursuant to this section shall not be considered as basic pay for the purposes of the following provisions of title 5 (and any other provision of law relating to benefits based on basic pay): Subchapter VI of chapter 55. Section 5595. Chapters 81, 83, 84, and 87.
(j) Notwithstanding any other provision of law and subject to paragraph (2), the Secretary may increase the rates of additional pay authorized under subsections (b) through (h) if the Secretary determines that it is necessary to do so in order to obtain or retain the services of nurses. An increase under paragraph (1) in rates of additional pay— may be made at any specific Department health-care facility in order to provide nurses, or any category of nurses, at such facility additional pay in an amount competitive with, but not exceeding, the amount of the same type of pay that is paid to the same category of nurses at non-Federal health-care facilities in the same geographic area as such Department health-care facility (based upon a reasonably representative sampling of such non-Federal facilities); and may be made on a nationwide, local, or other geographic basis if the Secretary finds that such an increase is justified on the basis of a review of the need for such increase (based upon a reasonably representative sampling of non-Federal health-care facilities in the geographic area involved).
§ 7454 Physician assistants and other health care professionals: additional pay
(a) Physician assistants and expanded-function dental auxiliaries shall be entitled to additional pay on the same basis as provided for nurses in section 7453 of this title .
(b) When the Secretary determines it to be necessary in order to obtain or retain the services of individuals in positions listed in section 7401(3) of this title , the Secretary may, on a nationwide, local, or other geographic basis, pay persons employed in such positions additional pay on the same basis as provided for nurses in section 7453 of this title . Health care professionals employed in positions referred to in paragraph (1) shall be entitled to additional pay on the same basis as provided for nurses in section 7453(c) of this title . Employees appointed under section 7408 of this title performing service on a tour of duty, any part of which is within the period commencing at midnight Friday and ending at midnight Sunday, shall receive additional pay in addition to the rate of basic pay provided such employees for each hour of service on such tour at a rate equal to 25 percent of such employee’s hourly rate of basic pay.
(c) The Secretary shall prescribe by regulation standards for compensation and payment under this section.
§ 7455 Increases in rates of basic pay
(a) Subject to subsections (b), (c), and (d), when the Secretary determines it to be necessary in order to obtain or retain the services of persons described in paragraph (2), the Secretary may increase the minimum, intermediate, or maximum rates of basic pay authorized under applicable statutes and regulations. Any increase in such rates of basic pay— may be made on a nationwide basis, local basis, or other geographic basis; and may be made— for one or more of the grades listed in the schedules in subsection (b)(1) of section 7404 1 of this title; for one or more of the health personnel fields within such grades; or for one or more of the grades of the General Schedule under section 5332 of title 5 . Paragraph (1) applies to the following: Individuals employed in positions listed in paragraphs (1) and (3) of section 7401 of this title . Health-care personnel who— are employed in the Administration (other than administrative, clerical, and physical plant maintenance and protective services employees); are paid under the General Schedule pursuant to section 5332 of title 5 ; are determined by the Secretary to be providing either direct patient-care services or services incident to direct patient-care services; and would not otherwise be available to provide medical care and treatment for veterans. Employees who are Department police officers providing services under section 902 of this title .
(b) Increases in rates of basic pay may be made under subsection (a) only in order— to provide pay in an amount competitive with, but not exceeding, the amount of the same type of pay paid to the same category of personnel at non-Federal facilities in the same labor market; to achieve adequate staffing at particular facilities; or to recruit personnel with specialized skills, especially those with skills which are especially difficult or demanding.
(c) Subject to paragraph (2), the amount of any increase under subsection (a) in the minimum rate for any grade may not (except in the case of nurse anesthetists, licensed practical nurses, licensed vocational nurses, nursing positions otherwise covered by title 5, pharmacists, and licensed physical therapists) exceed the maximum rate of basic pay (excluding any locality-based comparability payment under section 5304 of title 5 or similar provision of law) for the grade or level by more than 50 percent. No rate may be established under this section in excess of the rate of basic pay payable for level II of the Executive Schedule. Notwithstanding section 5304 of title 5 or any other provision of law, but subject to the limitation under paragraph (2), pursuant to an increase under subsection (a), the Secretary may pay a special rate or an adjusted rate of basic pay in excess of the rate of basic pay payable for level IV of the Executive Schedule. If an employee is in receipt of a special rate of pay under subparagraph (A) in excess of the rate of basic pay payable for level IV of the Executive Schedule with an established special rate supplement of greater value than a supplement based on the applicable locality-based comparability payment percentage under section 5304 of title 5 , but a pay adjustment would cause such established special rate supplement to be of lesser value, the special rate supplement shall be converted to a supplement based on the applicable locality-based comparability percentage unless the Secretary determines that some other action is appropriate.
(d) In the exercise of the authority provided in subsection (a) with respect to personnel described in subparagraph (B) or (C) of paragraph (2) of that subsection to increase the rates of basic pay for any category of personnel not appointed under subchapter I, the Secretary shall, not less than 45 days before the effective date of a proposed increase, notify the President of the Secretary’s intention to provide such an increase. Such a proposed increase shall not take effect if, before the effective date of the proposed increase, the President disapproves such increase and provides the appropriate committees of the Congress with a written statement of the President’s reasons for such disapproval. If, before that effective date, the President approves such increase, the Secretary may advance the effective date to any date not earlier than the date of the President’s approval.
§ 7456 Nurses: special rules for weekend duty
(a) Subject to subsection (b), if the Secretary determines it to be necessary in order to obtain or retain the services of nurses at any Department health-care facility, the Secretary may provide, in the case of nurses appointed under this chapter and employed at such facility, that such nurses who work two regularly scheduled 12-hour tours of duty within the period commencing at midnight Friday and ending at midnight the following Sunday shall be considered for all purposes (except computation of full-time equivalent employees for the purposes of determining compliance with personnel ceilings) to have worked a full 40-hour basic workweek.
(b) Basic and additional pay for a nurse who is considered under subsection (a) to have worked a full 40-hour basic workweek shall be subject to paragraphs (2) and (3). The hourly rate of basic pay for such a nurse for service performed as part of a regularly scheduled 12-hour tour of duty within the period commencing at midnight Friday and ending at midnight the following Sunday shall be derived by dividing the nurse’s annual rate of basic pay by 1,248. Such a nurse who performs a period of service in excess of such nurse’s regularly scheduled two 12-hour tours of duty is entitled to overtime pay under section 7453(e) of this title , or other applicable law, for officially ordered or approved service performed in excess of eight hours on a day other than a Saturday or Sunday or in excess of 24 hours within the period commencing at midnight Friday and ending at midnight the following Sunday. Except as provided in subparagraph (C), a nurse to whom this subsection is applicable is not entitled to additional pay under section 7453 of this title , or other applicable law, for any period included in a regularly scheduled 12-hour tour of duty. If the Secretary determines it to be further necessary in order to obtain or retain the services of nurses at a particular facility, a nurse to whom this paragraph is applicable who performs service in excess of such nurse’s regularly scheduled two 12-hour tours of duty may be paid overtime pay under section 7453(e) of this title , or other applicable law, for all or part of the hours of officially ordered or approved service performed by such nurse in excess of 40 hours during an administrative workweek.
(c) The Secretary shall prescribe regulations for the implementation of this section.
§ 7456A Nurses: alternate work schedules
(a) Applicability.— This section applies to registered nurses appointed under this chapter.
(b) 72/80 Work Schedule.— Subject to paragraph (2), if the Secretary determines it to be necessary in order to obtain or retain the services of registered nurses at any Department health-care facility, the Secretary may provide, in the case of nurses employed at such facility, that such nurses who work six regularly scheduled 12-hour tours of duty within a 14-day period shall be considered for all purposes to have worked a full 80-hour pay period. A nurse who works under the authority in subparagraph (A) shall be considered a 0.90 full-time equivalent employee in computing full-time equivalent employees for the purposes of determining compliance with personnel ceilings. Basic and additional pay for a nurse who is considered under paragraph (1) to have worked a full 80-hour pay period shall be subject to subparagraphs (B) and (C). The hourly rate of basic pay for a nurse covered by this paragraph for service performed as part of a regularly scheduled 36-hour tour of duty within the work week shall be derived by dividing the nurse’s annual rate of basic pay by 1,872. The Secretary shall pay overtime pay to a nurse covered by this paragraph who— performs a period of service in excess of such nurse’s regularly scheduled 36-hour tour of duty within an administrative work week; for officially ordered or approved service, performs a period of service in excess of 8 hours on a day other than a day on which such nurse’s regularly scheduled 12-hour tour of duty falls; performs a period of service in excess of 12 hours for any day included in the regularly scheduled 36-hour tour of duty work week; or performs a period of service in excess of 40 hours during an administrative work week. The Secretary may provide a nurse to whom this subsection applies with additional pay under section 7453 of this title for any period included in a regularly scheduled 12-hour tour of duty. A nurse who works a work schedule described in this subsection who is absent on approved sick leave or annual leave during a scheduled 12-hour tour of duty shall be charged for such leave at a rate of ten hours of leave for every nine hours of absence.
(c) Holiday Pay.— A nurse working a work schedule under subsection (b) that includes a holiday designated by law or Executive order shall be eligible for holiday pay under section 7453(d) of this title for any service performed by the nurse on such holiday under such section.
(d) 9-Month Work Schedule for Certain Nurses.— The Secretary may authorize a registered nurse appointed under section 7405 of this title , with the nurse’s written consent, to work full time for nine months with 3 months off duty, within a fiscal year, and be paid at 75 percent of the full-time rate for such nurse’s grade for each pay period of such fiscal year. A nurse who works under the authority in paragraph (1) shall be considered a 0.75 full-time equivalent employee in computing full-time equivalent employees for the purposes of determining compliance with personnel ceilings. Work under this subsection shall be considered part-time service for purposes of computing benefits under chapters 83 and 84 of title 5. A nurse who works under the authority in paragraph (1) shall be considered a full-time employee for purposes of chapter 89 of title 5.
(e) Notification of Modification of Benefits.— The Secretary shall provide each employee with respect to whom an alternate work schedule under this section may apply written notice of the effect, if any, that the alternate work schedule will have on the employee’s health care premium, retirement, life insurance premium, probationary status, or other benefit or condition of employment. The notice shall be provided not later than 14 days before the employee consents to the alternate work schedule.
(f) Regulations.— The Secretary shall prescribe regulations to carry out this section.
§ 7457 On-call pay
(a) The Secretary may pay an employee to whom this section applies pay at the rate provided in section 7453(h) of this title except for such time as the employee may be called back to work.
(b) This section applies to an employee who meets each of the following criteria: The employee is employed in a position listed in paragraph (3) of section 7401 of this title or meets the criteria specified in clauses (i), (ii), and (iii) of section 7455(a)(2)(B) of this title . The employee is employed in a work unit for which on-call premium pay is authorized. The employee is officially scheduled to be on call outside such employee’s regular hours or on a holiday designated by Federal statute or Executive order.
(c) An employee who is eligible for on-call pay under subsection (a) and who was receiving standby premium pay pursuant to section 5545 of title 5 on May 20, 1988 , shall, as long as such employee is employed in the same position and work unit and remains eligible for such standby pay, receive pay for any period of on-call duty at the rate equal to the greater of— the rate of pay which such employee would receive if being paid the rate of standby pay pursuant to such section that such individual would be entitled to receive if such individual were not scheduled to be on call instead, or the rate of pay which such employee is entitled to receive including on-call premium pay described in subsection (a).
§ 7458 Recruitment and retention bonus pay
(a) In order to recruit and retain registered nurses, the Secretary may enter into agreements under this section. Such an agreement may be entered into with any registered nurse who is employed at, or who agrees to accept employment with the Department at, a Department health-care facility that is designated by the Secretary as a health-care facility with a significant shortage in registered nurses in any clinical service. A registered nurse entering into an agreement under this section shall agree to remain employed by the Department as a registered nurse for a period of time to be specified in the agreement and to serve during that period in a specific health-care facility that is designated by the Secretary as a health-care facility with a significant shortage of registered nurses in that nurse’s clinical service. Such period may not be less than two years or more than four years. Such employment during such period may be on a full-time basis or a part-time basis, as specified in the agreement. Part-time employment as specified in such an agreement may not be less than half-time.
(b) The Secretary shall pay to any nurse entering into an agreement under this section bonus pay in an amount specified in the agreement. The amount of such bonus pay may not exceed— 3,000 per year, in the case of an agreement for three years, and $4,000 per year, in the case of an agreement for four years. In the case of an agreement for employment on less than a full-time basis, the amount of bonus pay shall be pro-rated accordingly.
(c) Except as provided in paragraph (2) of this subsection, a bonus under this section shall be paid in equal installments after each year of service is completed throughout the period of obligated service specified in the agreement. The Secretary may make a payment in an amount not in excess of 25 percent of the total bonus in a lump sum at the time that the period of obligated service commences under the agreement. If the Secretary makes a lump-sum payment under subparagraph (A) of this paragraph, the remaining balance of the bonus shall be paid in equal installments after each year of service is completed throughout the period of obligated service specified in the agreement.
(d) A bonus paid to any individual under this section shall be in addition to any pay or allowance to which the individual is entitled. The amount of a bonus paid under this section shall not be considered to be basic pay for the purposes of sections 5551, 5552, and 5595 of title 5, chapters 81, 83, 84, and 87 of such title, or any other provision of law creating an entitlement to benefits based on basic pay.
(e) At least once each year the Secretary, upon the recommendation of the Under Secretary for Health, shall determine the specific health-care facilities and clinical services, if any, as to which there are significant problems with respect to the recruitment and retention of registered nurses. Upon making any such determination, the Secretary shall promptly notify the Committees on Veterans’ Affairs of the Senate and the House of Representatives of the determination and the basis for the determination.
(f) The Secretary may enter into agreements under this section with individuals in a health profession other than nursing (and other than a health profession for which special pay may be provided under subchapter III) if the Secretary determines that there are significant problems with respect to recruitment and retention of employees in that health profession. The Secretary’s authority to enter into any such agreement under this section, and such agreement, shall be subject to the provisions of this section in the same manner as are the authority to enter into an agreement under this section with a registered nurse and such an agreement.
(g) Except as provided in paragraph (2) of this subsection, an individual who voluntarily, or because of misconduct, fails to perform services as assigned by the Secretary for the period of obligated service provided in an agreement under this section shall refund to the United States the amount by which the total amount of bonus payments received by that individual under this section exceeds the amount that such individual would have received under an agreement under this section to serve for the period of obligated service actually served (as determined at the time the agreement is entered into). If the period actually served is less than two years, the amount to be refunded is the entire amount paid to the individual. An individual shall not be required to make a refund under paragraph (1) of this subsection if the Secretary determines, in accordance with regulations prescribed under subsection (h) of this section, that the individual’s failure to perform services for the period of obligated service is due to circumstances (not including separation for cause) beyond the control of the individual. An obligation to refund any portion of a bonus payment under this subsection is, for all purposes, a debt owed to the United States. The provisions of this subsection and the specific amounts that the individual could be required to refund shall be disclosed to the individual at the time the agreement is entered into and shall be clearly set forth in the contract.
(h) The Secretary shall prescribe regulations to carry out this section.
§ 7459 Nursing staff: special rules for overtime duty
(a) Limitation.— Except as provided in subsection (c), the Secretary may not require nursing staff to work more than 40 hours (or 24 hours if such staff is covered under section 7456 of this title ) in an administrative work week or more than eight consecutive hours (or 12 hours if such staff is covered under section 7456 or 7456A of this title).
(b) Voluntary Overtime.— Nursing staff may on a voluntary basis elect to work hours otherwise prohibited by subsection (a). The refusal of nursing staff to work hours prohibited by subsection (a) shall not be grounds— to discriminate (within the meaning of section 704(a) of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e–3(a) )) against the staff; to dismiss or discharge the staff; or for any other adverse personnel action against the staff.
(c) Overtime Under Emergency Circumstances.— Subject to paragraph (2), the Secretary may require nursing staff to work hours otherwise prohibited by subsection (a) if— the work is a consequence of an emergency that could not have been reasonably anticipated; the emergency is non-recurring and is not caused by or aggravated by the inattention of the Secretary or lack of reasonable contingency planning by the Secretary; the Secretary has exhausted all good faith, reasonable attempts to obtain voluntary workers; the nurse staff have critical skills and expertise that are required for the work; and the work involves work for which the standard of care for a patient assignment requires continuity of care through completion of a case, treatment, or procedure. Nursing staff may not be required to work hours under this subsection after the requirement for a direct role by the staff in responding to medical needs resulting from the emergency ends.
(d) Nursing Staff Defined.— In this section, the term “nursing staff” includes the following: A registered nurse. A licensed practical or vocational nurse. A nurse assistant appointed under this chapter or title 5. Any other nurse position designated by the Secretary for purposes of this section.
§ 7461 Adverse actions: section 7401(1) employees
(a) Whenever the Under Secretary for Health (or an official designated by the Under Secretary for Health) brings charges based on conduct or performance against a section 7401(1) employee and as a result of those charges an adverse personnel action is taken against the employee, the employee shall have the right to appeal the action.
(b) If the case involves or includes a question of professional conduct or competence in which a major adverse action was taken, such an appeal shall be made to a Disciplinary Appeals Board under section 7462 of this title . In any case other than a case described in paragraph (1) that involves or includes a question of professional conduct or competence in which a major adverse action was not taken, such an appeal shall be made through Department grievance procedures under section 7463 of this title .
(c) For purposes of this subchapter— Section 7401(1) employees are employees of the Department employed on a full-time basis under a permanent appointment in a position listed in section 7401(1) of this title (other than employees in senior executive positions (as defined in section 713(d) of this title ) and interns and residents appointed pursuant to section 7406 of this title ). A major adverse action is an adverse action which includes any of the following: Suspension. Transfer. Reduction in grade. Reduction in basic pay. Discharge. A question of professional conduct or competence is a question involving any of the following: Direct patient care. Clinical competence.
(d) An issue of whether a matter or question concerns, or arises out of, professional conduct or competence is not itself subject to any grievance procedure provided by law, regulation, or collective bargaining and may not be reviewed by any other agency.
(e) Whenever the Secretary proposes to prescribe regulations under this subchapter, the Secretary shall publish the proposed regulations in the Federal Register for notice-and-comment not less than 30 days before the day on which they take effect.
§ 7462 Major adverse actions involving professional conduct or competence
(a) Disciplinary Appeals Boards appointed under section 7464 of this title shall have exclusive jurisdiction to review any case— which arises out of (or which includes) a question of professional conduct or competence of a section 7401(1) employee; and in which a major adverse action was taken. The board shall include in its record of decision in any mixed case a statement of the board’s exclusive jurisdiction under this subsection and the basis for such exclusive jurisdiction. For purposes of paragraph (2), a mixed case is a case that includes both a major adverse action arising out of a question of professional conduct or competence and an adverse action which is not a major adverse action or which does not arise out of a question of professional conduct or competence.
(b) In any case in which charges are brought against a section 7401(1) employee which arises out of, or includes, a question of professional conduct or competence which could result in a major adverse action, the employee is entitled, within the aggregate time period specified in paragraph (5)(A), to the following: Advance written notice from the Under Secretary for Health or other charging official specifically stating the basis for each charge, the adverse actions that could be taken if the charges are sustained, a statement of any specific law, regulation, policy, procedure, practice, or other specific instruction that has been violated with respect to each charge, and a file containing all the evidence in support of each charge, except that the requirement for notification in advance may be waived if there is reasonable cause to believe that the employee has committed a crime for which the employee may be imprisoned. The opportunity, within the time period provided for in paragraph (4)(A), to present an answer orally and in writing to the Under Secretary for Health or other deciding official, who shall be an official higher in rank than the charging official, and to submit affidavits and other documentary evidence in support of the answer. In any case described in paragraph (1), the employee is entitled to be represented by an attorney or other representative of the employee’s choice at all stages of the case. After considering the employee’s answer, if any, and within the time period provided for in paragraph (5)(B), the deciding official shall render a decision on the charges. The decision shall be in writing and shall include the specific reasons therefor. The period for the response of an employee under paragraph (1)(B) to advance written notice under paragraph (1)(A) shall be seven business days. The Secretary shall require that any appeal to a Disciplinary Appeals Board from a decision to impose a major adverse action shall be received within seven business days after the date of service of the written decision on the employee. The aggregate period for the resolution of charges against an employee under this subsection may not exceed 15 business days. The deciding official shall render a decision under paragraph (3) on charges under this subsection not later than 15 business days after the Under Secretary provides notice on the charges for purposes of paragraph (1)(A). The procedures in this subsection shall supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures.
(c) When a Disciplinary Appeals Board convenes to consider an appeal in a case under this section, the board, before proceeding to consider the merits of the appeal, shall determine whether the case is properly before it. Upon hearing such an appeal, the board shall, with respect to each charge appealed to the board, sustain the charge, dismiss the charge, or sustain the charge in part and dismiss the charge in part. If the deciding official is sustained (in whole or in part) with respect to any such charge, the board shall— approve the action as imposed; approve the action with modification, reduction, or exception; or reverse the action. A board shall afford an employee appealing an adverse action under this section an opportunity for an oral hearing. If such a hearing is held, the board shall provide the employee with a transcript of the hearing. The board shall render a decision in any case within 45 days of completion of the hearing, if there is a hearing, and in any event no later than 120 days after the appeal commenced.
(d) After resolving any question as to whether a matter involves professional conduct or competence, the Secretary shall cause to be executed the decision of the Disciplinary Appeals Board in a timely manner and in any event in not more than 90 days after the decision of the Board is received by the Secretary. Pursuant to the board’s decision, the Secretary may order reinstatement, award back pay, and provide such other remedies as the board found appropriate relating directly to the proposed action, including expungement of records relating to the action. If the Secretary finds a decision of the board to be clearly contrary to the evidence or unlawful, the Secretary may— reverse the decision of the board, or vacate the decision of the board and remand the matter to the Board for further consideration. If the Secretary finds the decision of the board (while not clearly contrary to the evidence or unlawful) to be not justified by the nature of the charges, the Secretary may mitigate the adverse action imposed. The Secretary’s execution of a board’s decision shall be the final administrative action in the case.
(e) The Secretary may designate an employee of the Department to represent management in any case before a Disciplinary Appeals Board.
(f) A section 7401(1) employee adversely affected by a final order or decision of a Disciplinary Appeals Board (as reviewed by the Secretary) may obtain judicial review of the order or decision. In any case in which judicial review is sought under this subsection, the court shall review the record and hold unlawful and set aside any agency action, finding, or conclusion found to be— arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence.
§ 7463 Other adverse actions
(a) The Secretary shall prescribe by regulation procedures for the consideration of grievances of section 7401(1) employees arising from adverse personnel actions in which each action taken either— is not a major adverse action; or does not arise out of a question of professional conduct or competence. Disciplinary Appeals Boards shall not have jurisdiction to review such matters, other than as part of a mixed case (as defined in section 7462(a)(3) of this title ).
(b) In the case of an employee who is a member of a collective bargaining unit under chapter 71 of title 5, the employee may seek review of an adverse action described in subsection (a) either under the grievance procedures provided through regulations prescribed under subsection (a) or through grievance procedures determined through collective bargaining, but not under both. The employee shall elect which grievance procedure to follow. Any such election may not be revoked.
(c) In any case in which charges are brought against a section 7401(1) employee which could result in a major adverse action and which do not involve professional conduct or competence, the employee is entitled to notice and an opportunity to answer with respect to those charges in accordance with subparagraphs (A) and (B) of section 7462(b)(1) of this title , but within the time periods specified in paragraph (3). In any other case in which charges are brought against a section 7401(1) employee, the employee is entitled, within the aggregate time period specified in paragraph (3)(A), to— written notice stating the specific reason for the proposed action, and time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer. The aggregate period for the resolution of charges against an employee under paragraph (1) or (2) may not exceed 15 business days. The period for the response of an employee under paragraph (1) or (2)(B) to written notice of charges under paragraph (1) or (2)(A), as applicable, shall be seven business days. The deciding official shall render a decision on charges under paragraph (1) or (2) not later than 15 business days after notice is provided on the charges for purposes of paragraph (1) or (2)(A), as applicable.
(d) Grievance procedures prescribed under subsection (a) shall include the following: A right to formal review by an impartial examiner within the Department of Veterans Affairs, who, in the case of an adverse action arising from a question of professional conduct or competence, shall be selected from the panel designated under section 7464 of this title . A right to a prompt report of the findings and recommendations by the impartial examiner. A right to a prompt review of the examiner’s findings and recommendations by an official of a higher level than the official who decided upon the action. That official may accept, modify, or reject the examiner’s recommendations.
(e) In any review of an adverse action under the grievance procedures prescribed under subsection (a), the employee is entitled to be represented by an attorney or other representative of the employee’s choice at all stages of the case.
§ 7464 Disciplinary Appeals Boards
(a) The Secretary shall from time to time appoint boards to hear appeals of major adverse actions described in section 7462 of this title . Such boards shall be known as Disciplinary Appeals Boards. Each board shall consist of three employees of the Department, each of whom shall be of the same grade as, or be senior in grade to, the employee who is appealing an adverse action. At least two of the members of each board shall be employed in the same category of position as the employee who is appealing the adverse action. Members of a board shall be appointed from individuals on the panel established under subsection (d).
(b) In appointing a board for any case, the Secretary shall designate one of the members to be chairman and one of the members to be secretary of the board, each of whom shall have authority to administer oaths. Appointment of boards, and the proceedings of such boards, shall be carried out under regulations prescribed by the Secretary. A verbatim record shall be maintained of board hearings.
(c) Notwithstanding sections 5701 and 7332 of this title, the chairman of a board, upon request of an employee whose case is under consideration by the board (or a representative of that employee) may, in connection with the considerations of the board, review records or information covered by those sections and may authorize the disclosure of such records or information to that employee (or representative) to the extent the board considers appropriate for purposes of the proceedings of the board in that case. In any such case the board chairman may direct that measures be taken to protect the personal privacy of individuals whose records are involved. Any person who uses or discloses a record or information covered by this subsection for any purpose other than in connection with the proceedings of the board shall be fined not more than 20,000 in the case of a subsequent offense.
(d) The Secretary shall provide for the periodic designation of employees of the Department who are qualified to serve on Disciplinary Appeals Boards. Those employees shall constitute the panel from which board members in a case are appointed. The Secretary shall provide (without charge) a list of the names of employees on the panel to any person requesting such list. The Secretary shall announce periodically, and not less often than annually, that the roster of employees on the panel is available as described in paragraph (1). Such announcement shall be made at Department medical facilities and through publication in the Federal Register. Notice of a name being on the list must be provided at least 30 days before the individual selected may serve on a Board or as a grievance examiner. Employees, employee organizations, and other interested parties may submit comments to the Secretary concerning the suitability for service on the panel of any employee whose name is on the list. The Secretary shall provide training in the functions and duties of Disciplinary Appeals Boards and grievance procedures under section 7463 of this title for employees selected to be on the panel.
§ 7471 Designation of Regional Medical Education Centers
(a) In carrying out the Secretary’s functions under section 7302 of this title with regard to the training of health personnel, the Secretary shall implement a program under which the Secretary shall designate as Regional Medical Education Centers such Department hospitals as the Secretary determines appropriate to carry out the provisions of this subchapter.
(b) Each Regional Medical Education Center (hereinafter in this subchapter referred to as “Center”) designated under subsection (a) shall provide continuing medical and related education programs for personnel eligible for training under this subchapter. Such programs shall include the following: The teaching of newly developed medical skills and the use of newly developed medical technologies and equipment. Advanced clinical instruction. The opportunity for conducting clinical investigations. Clinical demonstrations in the use of new types of health personnel and in the better use of the skills of existing health personnel. Routine verification of basic medical skills and, where determined necessary, remediation of any deficiency in such skills.
§ 7472 Supervision and staffing of Centers
(a) Centers shall be operated under the supervision of the Under Secretary for Health and shall be staffed with personnel qualified to provide the highest quality instruction and training in various medical and health care disciplines.
(b) As a means of providing appropriate recognition to persons in the career service of the Administration who possess outstanding qualifications in a particular medical or health care discipline, the Under Secretary for Health shall from time to time and for such period as the Under Secretary for Health considers appropriate assign such persons to serve as visiting instructors at Centers.
(c) Whenever the Under Secretary for Health considers it necessary for the effective conduct of the program provided for under this subchapter, the Under Secretary for Health may contract for the services of highly qualified medical and health personnel from outside the Department to serve as instructors at such Centers.
§ 7473 Personnel eligible for training
(a) The Under Secretary for Health shall determine the manner in which personnel are to be selected for training in the Centers. Preference shall be given to career personnel of the Administration.
(b) To the extent that facilities are available medical and health personnel from outside the Administration may, on a reimbursable basis, be provided training in the Centers. Such reimbursement may include reciprocal training of personnel of the Administration provided under sharing arrangements entered into by the Under Secretary for Health and the heads of the entities providing such reciprocal training. Any amounts received by the United States as reimbursement under this subsection shall be credited to the applicable Department medical appropriation account.
§ 7474 Consultation
The Under Secretary for Health shall carry out this subchapter after consultation with the special medical advisory group established pursuant to section 7312(a) of this title . (Added Pub. L. 102–40, title IV, § 401(b)(5) , May 7, 1991 , 105 Stat. 238 ; amended Pub. L. 102–405, title III, § 302(c)(1) , Oct. 9, 1992 , 106 Stat. 1984 .)