US (United States) Code. Title 38. Part V. Chapter 74: Veterans Health Administration-personnel

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Veterans benefits

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-CITE-

38 USC CHAPTER 74 - VETERANS HEALTH ADMINISTRATION -

PERSONNEL 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

-HEAD-

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

-MISC1-

SUBCHAPTER I - APPOINTMENTS

Sec.

7401. Appointments in Veterans Health Administration.

7402. Qualifications of appointees.

7403. Period of appointments; promotions.

7404. Grades and pay scales.

7405. Temporary full-time appointments, part-time

appointments, and without-compensation appointments.

7406. Residencies and internships.

7407. Administrative provisions for section 7405 and 7406

appointments.

7408. Appointment of additional employees.

7409. Contracts for scarce medical specialist services.

7410. Additional pay authorities.

7411. Full-time board-certified physicians and dentists:

reimbursement of continuing professional education

expenses.

SUBCHAPTER II - COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

7421. Personnel administration: in general.

7422. Collective bargaining.

7423. Personnel administration: full-time employees.

7424. Travel expenses of certain employees.

7425. Employees: laws not applicable.

7426. Retirement rights.

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

7431. Special pay: authority.

7432. Special pay: written agreements.

7433. Special pay: full-time physicians.

7434. Special pay: part-time physicians.

7435. Special pay: full-time dentists.

7436. Special pay: part-time dentists.

7437. Special pay: general provisions.

7438. Special pay: coordination with other benefits laws.

7439. Periodic review of pay of physicians and dentists;

quadrennial report.

7440. Annual report.

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

7451. Nurses and other health-care personnel: competitive

pay.

7452. Nurses and other health-care personnel: administration

of pay.

7453. Nurses: additional pay.

7454. Physician assistants and other health care

professionals: additional pay.

7455. Increases in rates of basic pay.

7456. Nurses: special rules for weekend duty.

7457. On-call pay.

7458. Recruitment and retention bonus pay.

SUBCHAPTER V - DISCIPLINARY AND GRIEVANCE PROCEDURES

7461. Adverse actions: section 7401(1) employees.

7462. Major adverse actions involving professional conduct

or competence.

7463. Other adverse actions.

7464. Disciplinary Appeals Boards.

SUBCHAPTER VI - REGIONAL MEDICAL EDUCATION CENTERS

7471. Designation of Regional Medical Education Centers.

7472. Supervision and staffing of Centers.

7473. Personnel eligible for training.

7474. Consultation.

AMENDMENTS

1991 - Pub. L. 102-40, title I, Secs. 102, 103(a)(2), title II,

Sec. 203(b), title IV, Sec. 401(b)(1), May 7, 1991, 105 Stat. 187,

199, 207, 221, added chapter heading and analysis.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in title 5 sections 2105, 5302, 5371;

title 42 section 282.

-End-

-CITE-

38 USC SUBCHAPTER I - APPOINTMENTS 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

SUBCHAPTER I - APPOINTMENTS

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in sections 7426, 7455 of this

title.

-End-

-CITE-

38 USC Sec. 7401 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7401. Appointments in Veterans Health Administration

-STATUTE-

There may be appointed by the Secretary such personnel as the

Secretary may find necessary for the medical 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:

(1) Physicians, dentists, podiatrists, optometrists, registered

nurses, physician assistants, and expanded-function dental

auxiliaries.

(2) Psychologists (other than those described in paragraph

(3)), dietitians, and other scientific and professional

personnel, such as microbiologists, chemists, biostatisticians,

and medical and dental technologists.

(3) Clinical or counseling psychologists who hold diplomas as

diplomates in psychology from an accrediting authority approved

by the Secretary, certified or registered respiratory therapists,

licensed physical therapists, licensed practical or vocational

nurses, pharmacists, and occupational therapists.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(2), May 7, 1991, 105

Stat. 222; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct.

9, 1992, 106 Stat. 1984.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4104 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1992 - Pub. L. 102-405 substituted "Under Secretary for Health"

for "Chief Medical Director".

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7402, 7403, 7404, 7405,

7407, 7408, 7410, 7411, 7423, 7424, 7425, 7451, 7452, 7455, 7457,

7461, 7462, 7463, 7612, 7672 of this title; title 5 section 7511.

-End-

-CITE-

38 USC Sec. 7402 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7402. Qualifications of appointees

-STATUTE-

(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)(1) Physician. - To be eligible to be appointed to a physician

position, a person must -

(A) hold the degree of doctor of medicine or of doctor of

osteopathy from a college or university approved by the

Secretary,

(B) have completed an internship satisfactory to the Secretary,

and

(C) be licensed to practice medicine, surgery, or osteopathy in

a State.

(2) Dentist. - To be eligible to be appointed to a dentist

position, a person must -

(A) hold the degree of doctor of dental surgery or dental

medicine from a college or university approved by the Secretary,

and

(B) be licensed to practice dentistry in a State.

(3) Nurse. - To be eligible to be appointed to a nurse position,

a person must -

(A) have successfully completed a full course of nursing in a

recognized school of nursing, approved by the Secretary, and

(B) be registered as a graduate nurse in a State.

(4) Director of a Hospital, Domiciliary, Center, or Outpatient

Clinic. - 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.

(5) Podiatrist. - To be eligible to be appointed to a podiatrist

position, a person must -

(A) hold the degree of doctor of podiatric medicine, or its

equivalent, from a school of podiatric medicine approved by the

Secretary, and

(B) be licensed to practice podiatry in a State.

(6) Optometrist. - To be eligible to be appointed to an

optometrist position, a person must -

(A) hold the degree of doctor of optometry, or its equivalent,

from a school of optometry approved by the Secretary, and

(B) be licensed to practice optometry in a State.

(7) Pharmacist. - To be eligible to be appointed to a pharmacist

position, a person must -

(A) hold the degree of bachelor of science in pharmacy, or its

equivalent, from a school of pharmacy, approved by the Secretary,

and

(B) be registered as a pharmacist in a State.

(8) Psychologist. - To be eligible to be appointed to a

psychologist position, a person must -

(A) hold a doctoral degree in psychology from a college or

university approved by the Secretary,

(B) have completed study for such degree in a specialty area of

psychology and an internship which are satisfactory to the

Secretary, and

(C) 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.

(9) Social Worker. - To be eligible to be appointed to a social

worker position, a person must -

(A) hold a master's degree in social work from a college or

university approved by the Secretary; and

(B) 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.

(10) Other Health-Care Positions. - 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, 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 -

(1) the person is or has been licensed, registered, or

certified (as applicable to such position) in more than one

State; and

(2) either -

(A) any of those States has terminated such license,

registration, or certification for cause; or

(B) 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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(2), May 7, 1991, 105

Stat. 222; amended Pub. L. 102-86, title III, Sec. 305(a), Aug. 14,

1991, 105 Stat. 417; Pub. L. 102-405, title III, Sec. 302(c)(1),

Oct. 9, 1992, 106 Stat. 1984; Pub. L. 106-117, title II, Sec. 209,

Nov. 30, 1999, 113 Stat. 1569; Pub. L. 106-419, title II, Sec. 205,

Nov. 1, 2000, 114 Stat. 1842.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

sections 4105 and 4108(b) of this title prior to the repeal of

those sections as part of the complete revision of chapter 73 of

this title by Pub. L. 102-40.

AMENDMENTS

2000 - Subsec. (b)(9). Pub. L. 106-419 substituted "a person must

- " and subpars. (A) and (B) for "a person must hold a master's

degree in social work from a college or university approved by the

Secretary and satisfy the social worker licensure, certification,

or registration requirements, if any, of the State in which the

social worker is to be employed, except that the Secretary may

waive the licensure, certification, or registration requirement of

this paragraph for an individual social worker for a reasonable

period, not to exceed 3 years, in order for the social worker to

take any actions necessary to satisfy the licensure, certification,

or registration requirements of such State."

1999 - Subsec. (f). Pub. L. 106-117 added subsec. (f).

1992 - Subsec. (d). Pub. L. 102-405 substituted "Under Secretary

for Health" for "Chief Medical Director" in two places.

1991 - Subsec. (b)(9), (10). Pub. L. 102-86 added par. (9) and

redesignated former par. (9) as (10).

EFFECTIVE DATE OF 1991 AMENDMENT

Section 305(b) of Pub. L. 102-86 provided that: "The amendment

made by subsection (a) [amending this section] does not apply to

any person employed as a social worker by the Department of

Veterans Affairs on or before the date of the enactment of this Act

[Aug. 14, 1991]."

REQUIREMENTS RESPECTING BASIC PROFICIENCY IN SPOKEN AND WRITTEN

ENGLISH OF APPOINTEES AFTER NOVEMBER 23, 1977

Section 4(a)(3) of Pub. L. 95-201 provided that: "Notwithstanding

any other provision of law, with respect to persons other than

those described in subsection (c) of section 4105 and subsection

(f) of section 4114 of title 38, United States Code [former

sections 4105(c) and 4114(f) of this title, see subsec. (d) of this

section and section 7407(d) of this title] (as added by paragraphs

(1) and (2) of this subsection), who are appointed after the date

of enactment of this Act [Nov. 23, 1977] in the Department of

Medicine and Surgery in the Veterans' Administration [now Veterans

Health Administration of the Department of Veterans Affairs] in any

direct patient-care capacity, and with respect to persons described

in such subsections who are appointed after such enactment date and

prior to January 1, 1978, the Administrator of Veterans' Affairs

[now Secretary of Veterans Affairs], upon the recommendation of the

Chief Medical Director [now Under Secretary for Health], shall take

appropriate steps to provide reasonable assurance that such persons

possess 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 such persons to carry out

their health-care responsibilities satisfactorily."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7407, 7604 of this title.

-End-

-CITE-

38 USC Sec. 7403 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7403. Period of appointments; promotions

-STATUTE-

(a)(1) 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.

(2) This section applies to the following persons appointed under

this chapter:

(A) Physicians.

(B) Dentists.

(C) Podiatrists.

(D) Optometrists.

(E) Nurses.

(F) Physician assistants.

(G) Expanded-function dental auxiliaries.

(b)(1) Appointments described in subsection (a) shall be for a

probationary period of two years.

(2) 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)(1) Upon the recommendation of the Under Secretary for Health,

the Secretary may -

(A) 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

(B) use the authority provided in subsection (c) for the

promotion and advancement of Department employees serving in such

positions.

(2) 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.

(3) Notwithstanding any other provision of this title or other

law, all matters relating to adverse actions, disciplinary actions,

and grievance procedures involving individuals appointed to such

positions (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)(1) 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 -

(A) has a recognized degree or certificate from an accredited

institution in a health-care profession or occupation; and

(B) has successfully completed a clinical education program

affiliated with the Department.

(2) 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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(2), May 7, 1991, 105

Stat. 224; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct.

9, 1992, 106 Stat. 1984.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4106 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1992 - Subsec. (f)(1). Pub. L. 102-405 substituted "Under

Secretary for Health" for "Chief Medical Director".

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7405 of this title.

-End-

-CITE-

38 USC Sec. 7404 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7404. Grades and pay scales

-STATUTE-

(a) The annual rates or ranges of rates of basic pay for

positions provided in section 7306 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.

(b)(1) 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:

-HEAD-

PHYSICIAN AND DENTIST SCHEDULE

Director grade.

Executive grade.

Chief grade.

Senior grade.

Intermediate grade.

Full grade.

Associate grade.

NURSE SCHEDULE

Nurse V.

Nurse IV.

Nurse III.

Nurse II.

Nurse I.

CLINICAL PODIATRIST AND OPTOMETRIST SCHEDULE

Chief grade.

Senior grade.

Intermediate grade.

Full grade.

Associate grade.

(2) A person may not hold the director grade in the Physician and

Dentist Schedule unless the person is serving as a director of a

hospital, domiciliary, center, or outpatient clinic (independent),

or comparable position. A person may not hold the executive grade

in that Schedule unless the person holds the position of chief of

staff at a hospital, center, or outpatient clinic (independent), or

comparable position.

(c) Notwithstanding the provisions of section 7425(a) of this

title, a person appointed under section 7306 of this title who is

not eligible for special pay under subchapter III shall be deemed

to be a career appointee for the purposes of sections 4507 and 5384

of title 5.

(d) Except as provided under subchapter III and in section 7457

of this title, pay may not be paid at a rate in excess of the rate

of basic pay for an appropriate level authorized by section 5315 or

5316 of title 5 for positions in the Executive Schedule, as

follows:

(1) Level IV for the Deputy Under Secretary for Health.

(2) Level V for all other positions for which such basic pay is

paid under this section.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(2), May 7, 1991, 105

Stat. 225; amended Pub. L. 102-405, title II, Sec. 206, title III,

Sec. 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 102-585,

title III, Sec. 301(a), Nov. 4, 1992, 106 Stat. 4951.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4107(a)-(d) of this title prior to the repeal of that

section as part of the complete revision of chapter 73 of this

title by Pub. L. 102-40.

AMENDMENTS

1992 - Subsec. (b)(1). Pub. L. 102-585 inserted items relating to

Nurse V through I under heading "nurse schedule" and struck out

former items under that heading, "Director grade", "Senior grade",

"Intermediate grade", and "Entry grade".

Subsec. (b)(2). Pub. L. 102-405, Sec. 206, inserted ", or

comparable position" before period at end of first sentence.

Subsec. (d)(1). Pub. L. 102-405, Sec. 302(c)(1), substituted

"Under Secretary for Health" for "Chief Medical Director".

EFFECTIVE DATE OF 1992 AMENDMENT

Section 308 of Pub. L. 102-585 provided that: "The amendments

made by sections 301, 302, 303, and 304 [amending this section and

sections 7451 and 7452 of this title] shall take effect with

respect to the first pay period beginning on or after the end of

the six-month period beginning on the date of the enactment of this

Act [Nov. 4, 1992]."

-EXEC-

ADJUSTMENT OF PAY RATES EFFECTIVE FOR PAY PERIODS BEGINNING ON OR

AFTER JANUARY 1, 2003

Ex. Ord. No. 13282, Dec. 31, 2002, 68 F.R. 1133, set out as a

note under section 5332 of Title 5, Government Organization and

Employees, provided for an adjustment of the pay rates under this

section effective on the first day of the first applicable pay

period beginning on or after Jan. 1, 2003. See Schedule set out

below:

SCHEDULE 3

VETERANS HEALTH ADMINISTRATION SCHEDULES, DEPARTMENT OF VETERANS

AFFAIRS

(EFFECTIVE ON THE FIRST DAY OF THE FIRST APPLICABLE PAY PERIOD

BEGINNING ON OR AFTER JANUARY 1, 2003)

--------------------------------------------------------------------

Schedule for the Office of the Under Secretary for

Health (38 U.S.C. 7306)(!1)

Deputy Under Secretary for Health (!2) $144,591

Associate Deputy Under Secretary for Health (!3) 138,491

Assistant Under Secretaries for Health (!3) 134,408

Minimum Maximum

Medical Directors $114,678 (!3) $129,972

Service Directors 99,853 124,011

Director, National Center for 85,140 124,011

Preventive Health

Physician and Dentist Schedule

Director Grade $99,853 $124,011

Executive Grade 92,204 117,511

Chief Grade 85,140 110,682

Senior Grade 72,381 94,098

Intermediate Grade 61,251 79,629

Full Grade 51,508 66,961

Associate Grade 42,976 55,873

Clinical Podiatrist and

Optometrist Schedule

Chief Grade $85,140 $110,682

Senior Grade 72,381 94,098

Intermediate Grade 61,251 79,629

Full Grade 51,508 66,961

Associate Grade 42,976 55,873

Physician Assistant and

Expanded-Function Dental

Auxiliary Schedule(!4)

Director Grade $85,140 $110,682

Assistant Director Grade 72,381 94,098

Chief Grade 61,251 79,629

Senior Grade 51,508 66,961

Intermediate Grade 42,976 55,873

Full Grade 35,519 46,175

Associate Grade 30,565 39,736

Junior Grade 26,130 33,969

(!1) This schedule does not apply to the Assistant Under

Secretary for Nursing Programs or the Director of Nursing Services.

Pay for these positions is set by the Under Secretary for Health

under 38 U.S.C. 7451.

(!2) Pursuant to section 7404(d)(1) of title 38, United States

Code, the rate of basic pay payable to this employee is limited to

the rate for level IV of the Executive Schedule, which is $134,000.

(!3) Pursuant to section 7404(d)(2) of title 38, United States

Code, the rate of basic pay payable to these employees is limited

to the rate for level V of the Executive Schedule, which is

$125,400.

(!4) Pursuant to section 301(a) of Public Law 102-40, these

positions are paid according to the Nurse Schedule in 38 U.S.C.

4107(b) [former section 4107(b) of Title 38, Veterans' Benefits] as

in effect on August 14, 1990, with subsequent adjustments.

--------------------------------------------------------------------

EXECUTIVE ORDER NO. 11413

Ex. Ord. No. 11413, June 11, 1968, 33 F.R. 8641, which provided

for adjustment of pay rates effective July 1, 1968, was superseded

by Ex. Ord. No. 11811, Oct. 7, 1974, 39 F.R. 36302, formerly set

out as a note under section 5332 of Title 5, Government

Organization and Employees.

EXECUTIVE ORDER NO. 11474

Ex. Ord. No. 11474, June 16, 1969, 34 F.R. 9605, which provided

for adjustment of pay rates effective July 1, 1969, was superseded

by Ex. Ord. No. 11811, Oct. 7, 1974, 39 F.R. 36302, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 11524

Ex. Ord. No. 11524, Apr. 15, 1970, 35 F.R. 6247, which provided

for adjustment of pay rates effective first pay period on or after

Dec. 27, 1969, was superseded by Ex. Ord. No. 11811, Oct. 7, 1974,

39 F.R. 36302, formerly set out as a note under section 5332 of

Title 5.

EXECUTIVE ORDER NO. 11576

Ex. Ord. No. 11576, Jan. 8, 1971, 36 F.R. 347, which provided for

adjustment of pay rates effective Jan. 1, 1971, was superseded by

Ex. Ord. No. 11811, Oct. 7, 1974, 39 F.R. 36302, formerly set out

as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 11637

Ex. Ord. No. 11637, Dec. 22, 1971, 36 F.R. 24911, which provided

for adjustment of pay rates effective Jan. 1, 1972, was superseded

by Ex. Ord. No. 11811, Oct. 7, 1974, 39 F.R. 36302, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 11691

Ex. Ord. No. 11691, Dec. 15, 1972, 37 F.R. 27607, as amended by

Ex. Ord. No. 11777, Apr. 12, 1974, 39 F.R. 13519, which provided

for adjustment of pay rates effective Oct. 1, 1972, was superseded

by Ex. Ord. No. 11811, Oct. 7, 1974, 39 F.R. 36302, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 11739

Ex. Ord. No. 11739, Oct. 3, 1973, 38 F.R. 27581, which provided

for adjustment of pay rates effective Oct. 1, 1973, was superseded

by Ex. Ord. No. 11811, Oct. 7, 1974, 39 F.R. 36302, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 11811

Ex. Ord. No. 11811, Oct. 7, 1975, 39 F.R. 3602, which provided

for adjustment of pay rates effective Oct. 1, 1974, was superseded

by Ex. Ord. No. 11883, Oct. 6, 1975, 40 F.R. 47091, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 11883

Ex. Ord. No. 11883, Oct. 6, 1975, 40 F.R. 47091, which provided

for adjustment of pay rates effective Oct. 1, 1975, was superseded

by Ex. Ord. No. 11941, Oct. 1, 1976, 41 F.R. 43889, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 11941

Ex. Ord. No. 11941, Oct. 1, 1976, 41 F.R. 43899, as amended by

Ex. Ord. No. 11943, Oct. 25, 1976, 41 F.R. 47213, which provided

for adjustment of pay rates effective Oct. 1, 1976, was superseded

by Ex. Ord. No. 12010, Sept. 28, 1977, 42 F.R. 52365, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12010

Ex. Ord. No. 12010, Sept. 28, 1977, 42 F.R. 52365, which provided

for adjustment of pay rates effective Oct. 1, 1977, was superseded

by Ex. Ord. No. 12087, Oct. 7, 1978, 43 F.R. 46823, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12087

Ex. Ord. No. 12087, Oct. 7, 1978, 43 F.R. 46823, which provided

for adjustment of pay rates effective Oct. 1, 1978, was superseded

by Ex. Ord. No. 12165, Oct. 9, 1979, 44 F.R. 58671, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12165

Ex. Ord. No. 12165, Oct. 9, 1979, 44 F.R. 58671, as amended by

Ex. Ord. No. 12200, Mar. 12, 1980, 44 F.R. 16443, which provided

for adjustment of pay rates effective Oct. 1, 1979, was superseded

by Ex. Ord. No. 12248, Oct. 16, 1980, 45 F.R. 69199, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12248

Ex. Ord. No. 12248, Oct. 16, 1980, 45 F.R. 69199, which provided

for adjustment of pay rates effective Oct. 1, 1980, was superseded

by Ex. Ord. No. 12330, Oct. 15, 1981, 46 F.R. 50921, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12330

Ex. Ord. No. 12330, Oct. 15, 1981, 46 F.R. 50921, which provided

for adjustment of pay rates effective Oct. 1, 1981, was superseded

by Ex. Ord. No. 12387, Oct. 8, 1982, 47 F.R. 44981, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12387

Ex. Ord. No. 12387, Oct. 8, 1982, 47 F.R. 44981, which provided

for adjustment of pay rates effective Oct. 1, 1982, was superseded

by Ex. Ord. No. 12456, Dec. 30, 1983, 49 F.R. 347, as amended Ex.

Ord. No. 12477, May 23, 1984, 49 F.R. 22041; Ex. Ord. No. 12487,

Sept. 14, 1984, 49 F.R. 36493, formerly set out as a note under

section 5332 of Title 5.

EXECUTIVE ORDER NO. 12438

Ex. Ord. No. 12438, Aug. 23, 1983, 48 F.R. 39205, which related

to review of increases in rates of basic pay for employees of the

Veterans' Administration, was revoked by Ex. Ord. No. 12797, Apr.

3, 1992, 57 F.R. 11671, set out as a note under section 7455 of

this title.

EXECUTIVE ORDER NO. 12456

Ex. Ord. No. 12456, Dec. 30, 1983, 49 F.R. 347, as amended by Ex.

Ord. No. 12477, May 23, 1984, 49 F.R. 22041; Ex. Ord. No. 12487,

Sept. 14, 1984, 49 F.R. 36493, which provided for adjustment of pay

rates effective Jan. 1, 1984, was superseded by Ex. Ord. No. 12496,

Dec. 28, 1984, 50 F.R. 211, formerly set out as a note under

section 5332 of Title 5.

EXECUTIVE ORDER NO. 12496

Ex. Ord. No. 12496, Dec. 28, 1984, 50 F.R. 211, as amended by Ex.

Ord. No. 12540, Dec. 30, 1985, 51 F.R. 577, which provided for

adjustment of pay rates effective Jan. 1, 1985, was superseded by

Ex. Ord. No. 12578, Dec. 31, 1986, 52 F.R. 505, formerly set out as

a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12578

Ex. Ord. No. 12578, Dec. 31, 1986, 52 F.R. 505, which provided

for adjustment of pay rates effective Jan. 1, 1987, was superseded

by Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, formerly set out

as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12622

Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, which provided

for adjustment of pay rates effective Jan. 1, 1988, was superseded

by Ex. Ord. No. 12663, Jan. 6, 1989, 54 F.R. 791, formerly set out

as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12663

Ex. Ord. No. 12663, Jan. 6, 1989, 54 F.R. 791, which provided for

adjustment of pay rates effective Jan. 1, 1989, was superseded by

Ex. Ord. No. 12698, Dec. 23, 1989, 54 F.R. 53473, formerly set out

as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12698

Ex. Ord. No. 12698, Dec. 23, 1989, 54 F.R. 53473, which provided

for adjustment of pay rates effective Jan. 1, 1990, and Jan. 31,

1990, was superseded by Ex. Ord. No. 12736, Dec. 12, 1990, 55 F.R.

51385, formerly set out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12736

Ex. Ord. No. 12736, Dec. 12, 1990, 55 F.R. 51385, which provided

for adjustment of pay rates effective Jan. 1, 1991, was superseded

by Ex. Ord. No. 12786, Dec. 26, 1991, 56 F.R. 67453, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12786

Ex. Ord. No. 12786, Dec. 26, 1991, 56 F.R. 67453, which provided

for adjustment of pay rates effective Jan. 1, 1992, was superseded

by Ex. Ord. No. 12826, Dec. 30, 1992, 57 F.R. 62909, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12826

Ex. Ord. No. 12826, Dec. 30, 1992, 57 F.R. 62909, which provided

for adjustment of pay rates effective Jan. 1, 1993, was superseded

by Ex. Ord. No. 12944, Dec. 28, 1994, 60 F.R. 309, formerly set out

as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12944

Ex. Ord. No. 12944, Dec. 28, 1994, 60 F.R. 309, which provided

for adjustment of pay rates effective Jan. 1, 1995, was superseded

by Ex. Ord. No. 12984, Dec. 28, 1995, 61 F.R. 237, formerly set out

as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 12984

Ex. Ord. No. 12984, Dec. 28, 1995, 61 F.R. 237, which provided

for adjustment of pay rates effective Jan. 1, 1996, was superseded

by Ex. Ord. No. 13033, Dec. 27, 1996, 61 F.R. 68987, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 13033

Ex. Ord. No. 13033, Dec. 27, 1996, 61 F.R. 68987, which provided

for adjustment of pay rates effective Jan. 1, 1997, was superseded

by Ex. Ord. No. 13071, Dec. 29, 1997, 62 F.R. 68521, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 13071

Ex. Ord. No. 13071, Dec. 29, 1997, 62 F.R. 68521, which provided

for adjustment of pay rates effective Jan. 1, 1998, was superseded

by Ex. Ord. No. 13106, Dec. 7, 1998, 63 F.R. 68151, formerly set

out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 13106

Ex. Ord. No. 13106, Dec. 7, 1998, 63 F.R. 68151, which provided

for adjustment of pay rates effective Jan. 1, 1999, was

substantially superseded by Ex. Ord. No. 13144, Dec. 21, 1999, 64

F.R. 72237, formerly set out as a note under section 5332 of Title

5.

EXECUTIVE ORDER NO. 13144

Ex. Ord. No. 13144, Dec. 21, 1999, 64 F.R. 72237, which provided

for adjustment of pay rates effective Jan. 1, 2000, was superseded

by Ex. Ord. No. 13182, Dec. 23, 2000, 65 F.R. 82879, 66 F.R. 10057,

formerly set out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 13182

Ex. Ord. No. 13182, Dec. 23, 2000, 65 F.R. 82879, 66 F.R. 10057,

which provided for adjustment of pay rates effective Jan. 1, 2001,

was superseded by Ex. Ord. No. 13249, Dec. 28, 2001, 67 F.R. 639,

formerly set out as a note under section 5332 of Title 5.

EXECUTIVE ORDER NO. 13249

Ex. Ord. No. 13249, Dec. 28, 2001, 67 F.R. 639, which provided

for adjustment of pay rates effective Jan. 1, 2002, was superseded

by Ex. Ord. No. 13282, Dec. 31, 2002, 68 F.R. 1133, set out as a

note under section 5332 of Title 5.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7324, 7451, 7455 of this

title.

-End-

-CITE-

38 USC Sec. 7405 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7405. Temporary full-time appointments, part-time

appointments, and without-compensation appointments

-STATUTE-

(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:

(1) On a temporary full-time basis, part-time basis, or without

compensation basis, persons in the following positions:

(A) Positions listed in section 7401(1) of this title.

(B) Certified or registered respiratory therapists, licensed

physical therapists, licensed practical or vocational nurses,

pharmacists, and occupational therapists.

(C) Dietitians, social workers, and librarians.

(D) Other professional, clerical, technical, and unskilled

personnel (including interns, residents, trainees, and students

in medical support programs).

(2) On a fee basis, persons in the following positions:

(A) Positions listed in section 7401(1) of this title.

(B) Certified or registered respiratory therapists, licensed

physical therapists, licensed practical or vocational nurses,

pharmacists, and occupational therapists.

(C) Other professional and technical personnel.

(b) Personnel employed under subsection (a) -

(1) shall be in addition to personnel described in section

7306, paragraphs (1) and (3) of section 7401, and section 7408 of

this title; and

(2) shall be paid such rates of pay as the Secretary may

prescribe.

(c)(1) Temporary full-time appointments under this section of

persons in positions listed in section 7401(1) 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.

(2) A temporary full-time appointment may not be made for a

period in excess of two years in the case of a person who -

(A) has successfully completed -

(i) a full course of nursing in a recognized school of

nursing, approved by the Secretary; or

(ii) 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

(B) is pending registration or licensure in a State or

certification by a national board recognized by the Secretary.

(3)(A) Temporary full-time appointments of persons in positions

referred to in subsection (a)(1)(D) shall not exceed three years.

(B) Temporary full-time appointments under this paragraph may be

renewed for one or more additional periods not in excess of three

years each.

(4) 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 -

(1) 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

(2) part-time appointments of personnel in such category may be

for periods of more than one year.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(2), May 7, 1991, 105

Stat. 226; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct.

9, 1992, 106 Stat. 1984; Pub. L. 106-419, title II, Sec. 204, Nov.

1, 2000, 114 Stat. 1842.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4114(a) of this title prior to the repeal of that section

as part of the complete revision of chapter 73 of this title by

Pub. L. 102-40.

AMENDMENTS

2000 - Subsec. (c)(2). Pub. L. 106-419, Sec. 204(a), amended par.

(2) generally. Prior to amendment, par. (2) read as follows:

"Temporary full-time appointments of persons who have successfully

completed a full course of nursing in a recognized school of

nursing, approved by the Secretary, or who have successfully

completed 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, and who are pending registration or licensure in a

State, or certification by a national board recognized by the

Secretary, shall not exceed two years."

Subsec. (c)(3), (4). Pub. L. 106-419, Sec. 204(b), added par. (3)

and redesignated former par. (3) as (4).

1992 - Subsecs. (a), (c)(1), (f)(1). Pub. L. 102-405 substituted

"Under Secretary for Health" for "Chief Medical Director".

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7407, 7408, 7424, 7425 of

this title; title 5 section 5102.

-End-

-CITE-

38 USC Sec. 7406 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7406. Residencies and internships

-STATUTE-

(a)(1) 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.

(2) For the purposes of this section:

(A) The term "internship" includes the equivalency of an

internship as determined in accordance with regulations which the

Secretary shall prescribe.

(B) 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)(1) 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 -

(A) of stipend payments;

(B) provision of fringe benefits; and

(C) maintenance of records for such interns and residents.

(2) 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

-

(A) stipends fixed by the Secretary pursuant to paragraph (1);

(B) 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;

(C) tax on employers pursuant to chapter 21 of the Internal

Revenue Code of 1986, where applicable; and

(D) an amount to cover a pro rata share of the cost of expense

of such central administrative agency.

(3)(A) 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.

(B) 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.

(4) The agreement with such central administrative agency may

further provide that the designated central administrative agency

shall -

(A) make all appropriate deductions from the stipend of each

intern and resident for local, State, and Federal taxes;

(B) maintain all records pertinent to such deductions and make

proper deposits of such deductions; and

(C) 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.

(5) 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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(2), May 7, 1991, 105

Stat. 227; amended Pub. L. 104-262, title III, Sec. 345, Oct. 9,

1996, 110 Stat. 3208.)

-REFTEXT-

REFERENCES IN TEXT

The civil service laws, referred to in subsec. (a)(1), are set

out in Title 5, Government Organization and Employees. See,

particularly, section 3301 et seq. of Title 5.

The classification laws, referred to in subsec. (a)(1), are

classified generally to chapter 51 (Sec. 5101 et seq.) and to

subchapter III (Sec. 5331 et seq.) of chapter 53 of Title 5.

Chapter 21 of the Internal Revenue Code of 1986, referred to in

subsec. (c)(2)(C), is classified to chapter 21 (Sec. 3101 et seq.)

of Title 26, Internal Revenue Code.

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4114(b) of this title prior to the repeal of that section

as part of the complete revision of chapter 73 of this title by

Pub. L. 102-40.

AMENDMENTS

1996 - Subsec. (c)(2), (3)(B). Pub. L. 104-262, Sec. 345(1),

substituted "Department facility furnishing hospital care or

medical services" for "Department hospital" wherever appearing.

Subsec. (c)(4)(C). Pub. L. 104-262, Sec. 345(2), substituted

"participating facility" for "participating hospital".

Pub. L. 104-262, Sec. 345(1), substituted "Department facility

furnishing hospital care or medical services" for "Department

hospital".

Subsec. (c)(5). Pub. L. 104-262, Sec. 345(3), substituted

"facility" for "hospital" in two places.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7407, 7408, 7423, 7425,

7461 of this title; title 5 section 5102.

-End-

-CITE-

38 USC Sec. 7407 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7407. Administrative provisions for section 7405 and 7406

appointments

-STATUTE-

(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)(1) 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 -

(A) that a physician, dentist, psychologist, optometrist,

registered nurse, practical or vocational nurse, or physical

therapist be licensed or certified, as appropriate;

(B) that the licensure or certification of such an individual

be in a State; and

(C) that a psychologist have completed an internship.

(2) The waivers authorized in paragraph (1) may be granted -

(A) 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

(B) 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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(2), May 7, 1991, 105

Stat. 228; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct.

9, 1992, 106 Stat. 1984.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4114(c)-(g) of this title prior to the repeal of that

section as part of the complete revision of chapter 73 of this

title by Pub. L. 102-40.

AMENDMENTS

1992 - Subsecs. (a), (b)(1). Pub. L. 102-405 substituted "Under

Secretary for Health" for "Chief Medical Director".

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7402 of this title.

-End-

-CITE-

38 USC Sec. 7408 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7408. Appointment of additional employees

-STATUTE-

(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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(2), May 7, 1991, 105

Stat. 229; amended Pub. L. 103-446, title XII, Sec. 1201(e)(21),

Nov. 2, 1994, 108 Stat. 4686.)

-REFTEXT-

REFERENCES IN TEXT

The civil service laws, referred to in subsec. (a), are set forth

in Title 5, Government Organization and Employees. See,

particularly section 3301 et seq. of Title 5.

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4111 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1994 - Subsec. (a). Pub. L. 103-446 substituted "civil service"

for "civil-service".

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7405 of this title.

-End-

-CITE-

38 USC Sec. 7409 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7409. Contracts for scarce medical specialist services

-STATUTE-

(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, 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:

(1) Schools and colleges of medicine, osteopathy, dentistry,

podiatry, optometry, and nursing.

(2) Clinics.

(3) Any other group or individual capable of furnishing such

scarce medical specialist services.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(2), May 7, 1991, 105

Stat. 229.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4117 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

-End-

-CITE-

38 USC Sec. 7410 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7410. Additional pay authorities

-STATUTE-

The Secretary may authorize the Under Secretary for Health to pay

advance payments, recruitment or relocation bonuses, and retention

allowances to the personnel described in paragraph (1) of section

7401 of this title, or interview expenses to candidates for

appointment as such personnel, in the same manner, and subject to

the same limitations, as in the case of the authority provided

under sections 5524a, 5706b, 5753, and 5754 of title 5.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 103(a)[(1)], May 7, 1991, 105

Stat. 198; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct.

9, 1992, 106 Stat. 1984.)

-MISC1-

AMENDMENTS

1992 - Pub. L. 102-405 substituted "Under Secretary for Health"

for "Chief Medical Director".

-End-

-CITE-

38 USC Sec. 7411 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER I - APPOINTMENTS

-HEAD-

Sec. 7411. Full-time board-certified physicians and dentists:

reimbursement of continuing professional education expenses

-STATUTE-

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.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 103(a)[(1)], May 7, 1991, 105

Stat. 199.)

-MISC1-

EFFECTIVE DATE

Section 103(b) of Pub. L. 102-40 provided that: "Section 7411 of

title 38, United States Code, as added by subsection (a), shall

apply with respect to expenses incurred for continuing professional

education that is pursued after September 30, 1991."

-End-

-CITE-

38 USC SUBCHAPTER II - COLLECTIVE BARGAINING AND

PERSONNEL ADMINISTRATION 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER II - COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

-HEAD-

SUBCHAPTER II - COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

-End-

-CITE-

38 USC Sec. 7421 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER II - COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

-HEAD-

Sec. 7421. Personnel administration: in general

-STATUTE-

(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 chapter in positions in the Veterans Health

Administration listed in subsection (b).

(b) Subsection (a) refers to the following positions:

(1) Physicians.

(2) Dentists.

(3) Podiatrists.

(4) Optometrists.

(5) Registered nurses.

(6) Physician assistants.

(7) Expanded-duty dental auxiliaries.

-SOURCE-

(Added Pub. L. 102-40, title II, Sec. 202, May 7, 1991, 105 Stat.

200.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4108(a) of this title prior to the repeal of that section

as part of the complete revision of chapter 73 of this title by

Pub. L. 102-40.

PRESERVATION OF EXISTING COLLECTIVE-BARGAINING ARRANGEMENTS AND

PENDING ACTIONS

Section 205 of Pub. L. 102-40 provided that:

"(a) Existing Collective-Bargaining Arrangements. - Any

determination under chapter 71 of title 5, United States Code, of a

collective bargaining unit within the Veterans Health

Administration of the Department of Veterans Affairs, and any

recognition under that chapter of an employee labor organization as

the exclusive bargaining representative for employees in a

collective bargaining unit of the Department of Veterans Affairs,

that is in effect on the date of the enactment of this Act [May 7,

1991] shall not be affected by the amendments made by this Act [see

Tables for classification] and shall continue in effect in

accordance with the terms of such determination or regulation.

"(b) Pending Cases. - With respect to cases pending on the date

of the enactment of this Act [May 7, 1991], or those cases which

are brought before the establishment of either an administrative

grievance procedure pursuant to section 7463 of title 38, United

States Code (as added by the amendments made by this title), or a

negotiated grievance procedure established under a collective

bargaining agreement, such cases shall proceed in the same manner

as they would have if this Act [see Tables for classification] had

not been enacted."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7422, 7423 of this title.

-End-

-CITE-

38 USC Sec. 7422 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER II - COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

-HEAD-

Sec. 7422. Collective bargaining

-STATUTE-

(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:

(1) Direct patient care.

(2) 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.

-SOURCE-

(Added Pub. L. 102-40, title II, Sec. 202, May 7, 1991, 105 Stat.

200.)

-End-

-CITE-

38 USC Sec. 7423 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER II - COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

-HEAD-

Sec. 7423. Personnel administration: full-time employees

-STATUTE-

(a) 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).

(b) A person covered by subsection (a) may not do any of the

following:

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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 -

(1) 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

(2) 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:

(1) 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.

(2) 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)(1) The Secretary shall establish a leave transfer program for

the benefit of health-care professionals in positions listed in

section 7401(1) of this title. The Secretary may also establish a

leave bank program for the benefit of such health-care

professionals.

(2) To the maximum extent feasible -

(A) 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

(B) 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.

(3) 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.

(4)(A) 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.

(B) 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.

(5) 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.

-SOURCE-

(Added and amended Pub. L. 102-40, title II, Sec. 202, title IV,

Sec. 401(b)(3)(A), May 7, 1991, 105 Stat. 201, 230; Pub. L.

102-405, title II, Sec. 203, title III, Sec. 302(c)(1), Oct. 9,

1992, 106 Stat. 1983, 1984; Pub. L. 104-262, title III, Sec. 347,

Oct. 9, 1996, 110 Stat. 3208.)

-REFTEXT-

REFERENCES IN TEXT

The Social Security Act, referred to in subsec. (b)(2), is act

Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles XVIII and

XIX of the Act are classified generally to subchapters XVIII (Sec.

1395 et seq.) and XIX (Sec. 1396 et seq.), respectively, of chapter

7 of Title 42, The Public Health and Welfare. For complete

classification of this Act to the Code, see section 1305 of Title

42 and Tables.

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4108(a), (c), and (e) of this title prior to the repeal of

that section as part of the complete revision of chapter 73 of this

title by Pub. L. 102-40.

AMENDMENTS

1996 - Subsec. (b). Pub. L. 104-262, Sec. 347(a), redesignated

pars. (2) to (6) as (1) to (5), respectively, and struck out former

par. (1) which read as follows: "Assume responsibility for the

medical care of any patient other than a patient admitted for

treatment at a Department facility, except in those cases where the

person, upon request and with the approval of the Under Secretary

for Health, assumes such responsibilities to assist communities or

medical practice groups to meet medical needs which would not

otherwise be available for a period not to exceed 180 calendar

days, which may be extended by the Under Secretary for Health for

additional periods not to exceed 180 calendar days each."

Subsec. (c). Pub. L. 104-262, Sec. 347(b), substituted

"subsection (b)(5)" for "subsection (b)(6)" in introductory

provisions.

1992 - Subsec. (b)(1). Pub. L. 102-405, Sec. 302(c)(1),

substituted "Under Secretary for Health" for "Chief Medical

Director" in two places.

Subsec. (f). Pub. L. 102-405, Sec. 203, added subsec. (f).

1991 - Subsec. (e). Pub. L. 102-40, Sec. 401(b)(3)(A), added

subsec. (e).

ESTABLISHMENT OF LEAVE BANK PROGRAM

For provision authorizing the establishment of a leave bank

program for health-care professional covered under subsec. (e) of

former section 4108 of this title [now covered by subsec. (e) of

this section] similar to the leave bank program for Federal

civilian employees in reserves who were activated during Persian

Gulf War, see section 361 of Pub. L. 102-25, set out as a Leave

Bank for Federal Civilian Employees in Reserves Who Were Activated

During Persian Gulf War note under section 6361 of Title 5,

Government Organization and Employees.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7616 of this title.

-End-

-CITE-

38 USC Sec. 7424 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER II - COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

-HEAD-

Sec. 7424. Travel expenses of certain employees

-STATUTE-

(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)(1) 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 -

(A) in connection with their attendance at meetings or in

performing advisory services concerned with the functions or

activities of the Department; or

(B) in connection with acceptance of significant awards or with

activity related thereto concerned with functions or activities

of the Department.

(2) 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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(3)(B), May 7, 1991,

105 Stat. 230; amended Pub. L. 102-405, title III, Sec. 302(c)(1),

Oct. 9, 1992, 106 Stat. 1984.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

sections 4108(d) and 4113 of this title prior to the repeal of

those sections as part of the complete revision of chapter 73 of

this title by Pub. L. 102-40.

AMENDMENTS

1992 - Subsec. (a). Pub. L. 102-405 substituted "Under Secretary

for Health" for "Chief Medical Director".

-End-

-CITE-

38 USC Sec. 7425 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER II - COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

-HEAD-

Sec. 7425. Employees: laws not applicable

-STATUTE-

(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:

(1) Section 413 of the Civil Service Reform Act of 1978.

(2) Subchapter II of chapter 31 of title 5.

(3) Subchapter VIII of chapter 33 of title 5.

(4) Subchapter V of chapter 35 of title 5.

(5) Subchapter II of chapter 43 of title 5.

(6) Section 4507 of title 5.

(7) Subchapter VIII of chapter 53 of title 5.

(8) Subchapter V of chapter 75 of title 5.

(b) 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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(3)(B), May 7, 1991,

105 Stat. 231.)

-REFTEXT-

REFERENCES IN TEXT

Section 413 of the Civil Service Reform Act of 1978, referred to

in subsec. (a)(1), is section 413 of Pub. L. 95-454, title IV, Oct.

13, 1978, 92 Stat. 1175, which is set out as a note under section

3133 of Title 5, Government Organization and Employees.

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

sections 4101(e) and 4119 of this title prior to the repeal of

those sections as part of the complete revision of chapter 73 of

this title by Pub. L. 102-40.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7404, 7407 of this title.

-End-

-CITE-

38 USC Sec. 7426 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER II - COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

-HEAD-

Sec. 7426. Retirement rights

-STATUTE-

(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)(1) 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 -

(A) 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

(B) 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.

(2) 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.

(3) 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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(3)(B), May 7, 1991,

105 Stat. 231; amended Pub. L. 102-585, title V, Sec. 522, Nov. 4,

1992, 106 Stat. 4959; Pub. L. 106-398, Sec. 1 [[div. A], title X,

Sec. 1087(g)(5)], Oct. 30, 2000, 114 Stat. 1654, 1654A-294; Pub. L.

107-135, title I, Sec. 132, Jan. 23, 2002, 115 Stat. 2454.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

sections 4107(i) and 4109 of this title prior to the repeal of

those sections as part of the complete revision of chapter 73 of

this title by Pub. L. 102-40.

AMENDMENTS

2002 - Subsec. (c). Pub. L. 107-135 added subsec. (c).

2000 - Subsec. (c). Pub. L. 106-398 struck out subsec. (c) which

read as follows: "The Secretary may authorize an exception to the

restrictions in subsections (a), (b), and (c) of section 5532 of

title 5 if necessary to meet special or emergency employment needs

which result from a severe shortage of well-qualified candidates in

physician positions, and registered nurse positions, which

otherwise cannot be readily met. The authority of the Secretary

under the preceding sentence with respect to registered-nurse

positions expires on December 31, 1994."

1992 - Subsec. (c). Pub. L. 102-585 substituted "December 31,

1994" for "September 30, 1992".

-End-

-CITE-

38 USC SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND

DENTISTS 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in sections 7404, 7458 of this

title.

-End-

-CITE-

38 USC Sec. 7431 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

Sec. 7431. Special pay: authority

-STATUTE-

(a) In order to recruit and retain highly qualified physicians

and dentists in the Veterans Health Administration, the Secretary

shall provide special pay under this subchapter. Such special pay

shall be provided under regulations that the Secretary shall

prescribe to carry out this subchapter. Before prescribing

regulations under this subchapter, the Secretary shall receive the

recommendations of the Under Secretary for Health with respect to

those regulations.

(b) Special pay may be paid to a physician or dentist under this

subchapter only upon the execution of, and for the duration of, a

written agreement entered into by the physician or dentist in

accordance with section 7432 of this title.

(c) A physician or dentist serving a period of obligated service

pursuant to chapter 76 of this title is not eligible for special

pay under this subchapter during the first three years of such

obligated service, except that, at the discretion of the Secretary

and upon the recommendation of the Under Secretary for Health, such

a physician or dentist may be paid special pay for full-time status

during those three years.

(d)(1) The Secretary may determine categories of positions

applicable to either physicians or dentists, or both, in the

Veterans Health Administration as to which there is no significant

recruitment and retention problem. While any such determination is

in effect, the Secretary may not enter into an agreement under this

subchapter with a physician or dentist serving in a position

covered by the determination. Before making a determination under

this paragraph, the Secretary shall receive the recommendations of

the Under Secretary for Health with respect to the determination.

(2) Not later than one year after making any such determination

with respect to a category of positions, and each year thereafter

that such determination remains in effect, the Secretary shall make

a redetermination.

(3) Any determination under this subsection shall be in

accordance with regulations prescribed to carry out this

subchapter.

(e) If the Under Secretary for Health determines that payment of

special pay to a physician or dentist who is employed on a less

than half-time basis is the most cost-effective way available for

providing needed medical or dental specialist services at a

Department facility, the Under Secretary for Health may authorize

the payment of special pay for factors other than for full-time

status to that physician or dentist at a rate computed on the basis

of the proportion that the part-time employment of the physician or

dentist bears to full-time employment.

(f) Special pay may not be paid under this section to a physician

or dentist who -

(1) is employed on less than a quarter-time basis or on an

intermittent basis;

(2) occupies an internship or residency training position; or

(3) is a reemployed annuitant.

(g)(1) In the case of a physician or dentist who is employed in a

position that is covered by a determination by the Secretary under

subsection (d)(1) that the Administration does not have a

significant recruitment or retention problem with respect to a

particular category of positions and who on the day before the

effective date of this subchapter was receiving special pay under

an agreement entered into under section 4118 of this title (as in

effect before such date), the Secretary may pay to that physician

or dentist, in addition to basic pay, retention pay under this

subsection.

(2) The annual rate of such retention pay for any individual may

not exceed the rate which, when added to the rate of basic pay

payable to that individual, is equal to the sum of the annual rate

of basic pay and the annual rate of special pay paid to that

physician or dentist pursuant to the final agreement with that

individual under such section 4118.

(3) Such retention pay shall be treated for all purposes as

special pay paid under subchapter III of chapter 74 of this title.

(4) Retention pay under this subsection shall be paid under such

regulations as the Secretary may prescribe.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 102, May 7, 1991, 105 Stat.

188; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct. 9,

1992, 106 Stat. 1984.)

-REFTEXT-

REFERENCES IN TEXT

For the effective date of this subchapter, referred to in subsec.

(g)(1), see section 104 of Pub. L. 102-40, set out as an Effective

Date note below.

Section 4118 of this title, referred to in subsec. (g)(1), (2),

was repealed by Pub. L. 102-40, title IV, Sec. 401(a)(3), May 7,

1991, 105 Stat. 210.

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4118 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1992 - Subsecs. (a), (c), (d)(1), (e). Pub. L. 102-405

substituted "Under Secretary for Health" for "Chief Medical

Director" wherever appearing.

EFFECTIVE DATE

Section 104 of Pub. L. 102-40 provided that:

"(a) Effective Date. - Subchapter III of chapter 74 of title 38,

United States Code, as added by section 102, shall take effect on

the first day of the first pay period beginning after the earlier

of -

"(1) July 1, 1991; or

"(2) the end of the 90-day period beginning on the date of the

enactment of this Act [May 7, 1991].

"(b) Transitions Provisions. - (1) In the case of an agreement

entered into under section 4118 of title 38, United States Code

[former section 4118 of this title], before the date of the

enactment of this Act [May 7, 1991] that expires after the

effective date specified in subsection (a), the Secretary of

Veterans Affairs and the physician or dentist concerned may agree

to terminate that agreement as of that effective date in order to

permit a new agreement under subchapter III of chapter 74 of title

38, United States Code, as added by section 102, to take effect as

of that effective date.

"(2) In the case of an agreement entered into under section 4118

of title 38, United States Code, before the date of the enactment

of this Act that expires during the period beginning on the date of

the enactment of this Act and ending on the effective date

specified in subsection (a), an extension or renewal of that

agreement may not extend beyond that effective date.

"(3) In the case of a physician or dentist who begins employment

with the Department of Veterans Affairs during the period beginning

on the date of the enactment of this Act and ending on the

effective date specified in subsection (a) who is eligible for an

agreement under section 4118 of title 38, United States Code, any

such agreement may not extend beyond that effective date.

"(c) Savings Provision. - Except as provided in subsection

(b)(1), any agreement entered into under section 4118 of title 38,

United States Code, before the effective date specified in

subsection (a) shall remain in effect in accordance with its terms

and shall be treated for all purposes in accordance with such

section as in effect on the day before such effective date.

"(d) Prohibition of Retroactive Agreements. - An agreement

entered into under subchapter III of chapter 74 of title 38, United

States Code, as added by section 102, may not provide special pay

with respect to a period before the effective date specified in

subsection (a)."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7432, 7434, 7436 of this

title.

-End-

-CITE-

38 USC Sec. 7432 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

Sec. 7432. Special pay: written agreements

-STATUTE-

(a) An agreement entered into by a physician or dentist under

this subchapter shall cover a period of one year of service in the

Veterans Health Administration unless the physician or dentist

agrees to an agreement for a longer period of service, not to

exceed four years, as specified in the agreement. A physician or

dentist who has previously entered into such an agreement is

eligible to enter into a subsequent agreement unless the physician

or dentist has failed to refund to the United States any amount

which the physician or dentist is obligated to refund under any

such previous agreement.

(b)(1) An agreement under this subchapter shall provide that, if

the physician or dentist entering into the agreement voluntarily,

or because of misconduct, fails to complete any of the years of

service covered by the agreement (measured from the anniversary

date of the agreement), the physician or dentist shall refund an

amount of special pay received under the agreement for that year

equal to -

(A) in the case of a failure during the first year of service

under the agreement, 100 percent of the amount received for that

year;

(B) in the case of a failure during the second year of service

under the agreement, 75 percent of the amount received for that

year;

(C) in the case of a failure during the third year of service

under the agreement, 50 percent of the amount received for that

year; and

(D) in the case of a failure during the fourth year of service

under the agreement, 25 percent of the amount received for that

year.

(2)(A) The Secretary may waive (in whole or in part) the

requirement for a refund under paragraph (1) in any case if the

Secretary determines (in accordance with regulations prescribed

under section 7431(a) of this title) that the failure to complete

such period of service is the result of circumstances beyond the

control of the physician or dentist.

(B) The Secretary may suspend a special pay agreement entered

into under this section in the case of a physician or dentist who,

having entered into the special pay agreement, enters a residency

training program. Any such suspension shall terminate when the

physician or dentist completes, withdraws from, or is no longer a

participant in the program. During the period of such a suspension,

the physician or dentist is not subject to the provisions of

paragraph (1).

(3) Any such agreement shall specify the terms under which the

Department and the physician or dentist may elect to terminate the

agreement.

(c)(1) If a proposed agreement under this subchapter will provide

a total annual amount of special pay to be provided to a physician

or dentist who has previously entered into an agreement under this

subchapter (or under section 4118 of this title as in effect before

the effective date of the Department of Veterans Affairs Physician

and Dentist Recruitment and Retention Act of 1991) that will exceed

the previous annual amount of special pay provided for the

physician or dentist by more than 50 percent (other than in the

case of a physician or dentist employed in an executive position in

the Central Office of the Department), or that will be less than

the previous annual amount of special pay provided for the

physician or dentist by more than 25 percent, the proposed

agreement shall be promptly submitted to the Secretary. The

proposed agreement shall not take effect if it is disapproved by

the Secretary within 60 days after the date on which the physician

or dentist entered into the proposed agreement.

(2) For purposes of paragraph (1), the previous annual amount of

special pay provided for a physician or dentist is the total annual

amount of special pay provided, or to be provided, to the physician

or dentist for the most recent year covered by an agreement entered

into by the physician or dentist under this subchapter or under

section 4118 of this title. In the case of an agreement entered

into under section 4118 of this title, incentive pay shall be

treated as special pay for purposes of this paragraph.

(3) The Secretary shall adjust special pay as necessary for

purposes of this subsection to reflect appropriately any change in

the status of a physician or dentist (A) from full-time status to

part-time status, (B) from part-time status to full-time status, or

(C) from one proportion of time spent as a Department employee

under part-time status employment to a different proportion.

(d)(1) If a proposed agreement under this subchapter (other than

an agreement in the case of the Under Secretary for Health) will

provide a total annual amount of special pay to be provided to a

physician or dentist which, when added to the amount of basic pay

of the physician or dentist, will be in excess of the amount

payable for positions specified in section 5312 of title 5, the

proposed agreement shall be promptly submitted for approval to the

Secretary through the Under Secretary for Health. The agreement

shall take effect at the end of the 60-day period beginning on the

date on which the physician or dentist entered into the proposed

agreement if it is neither approved nor disapproved within that

60-day period. If the agreement is approved within that period, the

agreement shall take effect as of the date of the approval. A

proposed agreement may be disapproved under this paragraph only if

it is determined that the amounts of special pay proposed to be

paid are not necessary to recruit or retain the physician or

dentist.

(2) A proposed agreement under this subchapter with the Under

Secretary for Health may provide for payment of special pay for

which the Under Secretary for Health is eligible under this

subchapter (other than that specified in section 7433(b)(4)(B) of

this title) only to the extent specifically approved by the

Secretary.

(3) The Secretary shall include in the annual report required by

section 7440 of this title -

(A) a statement of the number of agreements entered into during

the period covered by the report under which the total amount of

special pay to be provided, when added to the amount of basic pay

of the physician or dentist, will be in excess of the amount

payable for positions specified in section 5312 of title 5;

(B) a statement of the number of proposed agreements which

during the period covered by the report were disapproved under

this subsection; and

(C) a detailed explanation of the basis for disapproval of each

such proposed agreement which was disapproved under this

subsection.

(4) This subsection does not apply to any proposed agreement

entered into after September 30, 1994.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 102, May 7, 1991, 105 Stat.

189; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct. 9,

1992, 106 Stat. 1984; Pub. L. 104-262, title III, Sec. 346, Oct. 9,

1996, 110 Stat. 3208.)

-REFTEXT-

REFERENCES IN TEXT

Section 4118 of this title, referred to in subsec. (c)(1), (2),

was repealed by Pub. L. 102-40, title IV, Sec. 401(a)(3), May 7,

1991, 105 Stat. 210.

The effective date of the Department of Veterans Affairs

Physician and Dentist Recruitment and Retention Act of 1991,

referred to in subsec. (c)(1), probably means the effective date of

title I of Pub. L. 102-40, which enacted this subchapter, and which

is generally effective on first day of first pay period after July

1, 1991, subject to certain transition and savings provisions, see

section 104 of Pub. L. 102-40, set out as a note under section 7431

of this title.

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4118 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1996 - Subsec. (b)(2). Pub. L. 104-262 designated existing

provisions as subpar. (A) and added subpar. (B).

1992 - Subsec. (d)(1), (2). Pub. L. 102-405 substituted "Under

Secretary for Health" for "Chief Medical Director" wherever

appearing.

EFFECTIVE DATE

Section effective on first day of first pay period after July 1,

1991, subject to transition and savings provisions and prohibition

on retroactive agreements, see section 104 of Pub. L. 102-40, set

out as a note under section 7431 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7431 of this title.

-End-

-CITE-

38 USC Sec. 7433 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

Sec. 7433. Special pay: full-time physicians

-STATUTE-

(a) The Secretary shall provide special pay under this subchapter

to eligible physicians employed on a full-time basis based upon the

factors, and at the annual rates, specified in subsection (b).

(b) The special pay factors, and the annual rates, applicable to

full-time physicians are as follows:

(1) For full-time status, $9,000.

(2)(A) For length of service as a physician within the Veterans

Health Administration -

Length of Service Rate

Minimum Maximum

--------------------------------------------------------------------

2 years but less than 4 years $4,000 $ 6,000

4 years but less than 8 years 6,000 12,000

8 years but less than 12 years 12,000 18,000

12 years or more 12,000 25,000

--------------------------------------------------------------------

(B) The Under Secretary for Health shall specify a uniform

national rate for each range of years of service established by

or under this paragraph. The Under Secretary for Health may, as

to length of service in excess of 12 years, establish uniform

national rates for such ranges of years of service as the Under

Secretary for Health considers appropriate.

(3)(A) For service in a medical specialty with respect to which

there are extraordinary difficulties (on a nationwide basis or on

the basis of the needs of a specific medical facility) in the

recruitment or retention of qualified physicians, an annual rate

of not more than $40,000.

(B) For service by a physician who serves only a portion of a

year in a medical specialty for which special pay is paid under

subparagraph (A), the annual rate shall be calculated on the

basis of the proportion of time served in the specialty for which

the special pay is paid.

(4)(A) For service in any of the following executive positions,

an annual rate not to exceed the rate applicable to that position

as follows:

Position Rate

Minimum Maximum

--------------------------------------------------------------------

Service Chief (or in a comparable $4,500 $15,000

position as determined by the Secretary

Chief of Staff or in an Executive Grade 14,500 25,000

Director Grade 0 25,000

--------------------------------------------------------------------

(B) For service in any of the following executive positions,

the annual rate applicable to that position as follows:

Position te

--------------------------------------------------------------------

Deputy Service Director $20,000

Service Director 25,000

Deputy Assistant Under Secretary for Health 27,500

Assistant Under Secretary for Health 30,000

Associate Deputy Under Secretary for Health 35,000

Deputy Under Secretary for Health 40,000

Under Secretary for Health 45,000

--------------------------------------------------------------------

(C) For service by a physician who serves only a portion of a

year in an executive position listed in subparagraph (A) or (B)

or who serves a portion of a year in such a position and also

serves a portion of that year in another position or grade for

which special pay is provided under this section, the annual rate

shall be calculated on the basis of the proportion of time served

in the position or positions for which special pay is provided.

(5) For specialty certification or first board certification,

$2,000, and for subspecialty certification or secondary board

certification, an additional $500.

(6) For service in a specific geographic location with respect

to which there are extraordinary difficulties in the recruitment

or retention of qualified physicians in a specific category of

physicians, an annual rate of not more than $17,000.

(7)(A) For service by a physician with exceptional

qualifications within a specialty, an annual rate of not more

than $15,000.

(B) Special pay under this paragraph may be paid to a physician

only if the payment of such pay to that physician is approved by

the Under Secretary for Health personally and on a case-by-case

basis and only to the extent that the rate paid under this

paragraph, when added to the total of the rates paid to that

physician under paragraphs (1) through (6), does not exceed the

total rate that may be paid under those paragraphs to a physician

with the same length of service, specialty, and position as the

physician concerned.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 102, May 7, 1991, 105 Stat.

191; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct. 9,

1992, 106 Stat. 1984; Pub. L. 103-446, title XII, Sec. 1201(e)(22),

Nov. 2, 1994, 108 Stat. 4686.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4118 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1994 - Subsec. (b)(3)(A). Pub. L. 103-446 substituted

"nationwide" for "nation-wide".

1992 - Subsec. (b)(2)(B), (4)(B), (7)(B). Pub. L. 102-405

substituted "Under Secretary for Health" for "Chief Medical

Director" wherever appearing.

EFFECTIVE DATE

Section effective on first day of first pay period after July 1,

1991, subject to transition and savings provisions and prohibition

on retroactive agreements, see section 104 of Pub. L. 102-40, set

out as a note under section 7431 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7432, 7434, 7437 of this

title.

-End-

-CITE-

38 USC Sec. 7434 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

Sec. 7434. Special pay: part-time physicians

-STATUTE-

(a) Subject to section 7431(e) of this title and subsection (b)

of this section, special pay under this subchapter for physicians

employed on a part-time basis shall be based on the special-pay

factors and annual rates specified in section 7433 of this title.

(b) The annual rate of special pay paid to a physician employed

on a part-time basis shall bear the same ratio to the annual rate

that the physician would be paid under section 7433 (other than for

full-time status) if the physician were employed on a full-time

basis as the amount of part-time employment by the physician bears

to full-time employment, except that such ratio may not exceed 3/4.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 102, May 7, 1991, 105 Stat.

192.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4118 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

EFFECTIVE DATE

Section effective on first day of first pay period after July 1,

1991, subject to transition and savings provisions and prohibition

on retroactive agreements, see section 104 of Pub. L. 102-40, set

out as a note under section 7431 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7437 of this title.

-End-

-CITE-

38 USC Sec. 7435 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

Sec. 7435. Special pay: full-time dentists

-STATUTE-

(a) The Secretary shall provide special pay under this subchapter

to eligible dentists employed on a full-time basis based upon the

factors, and at the annual rates, specified in subsection (b).

(b) The special pay factors, and the annual rates, applicable to

full-time dentists are as follows:

(1) For full-time status, $9,000.

(2)(A) For length of service as a dentist within the Veterans

Health Administration -

Length of Service Rate

Minimum Maximum

--------------------------------------------------------------------

1 year but less than 2 years $1,000 $2,000

2 years but less than 4 years 4,000 5,000

4 years but less than 8 years 5,000 8,000

8 years but less than 12 years 8,000 12,000

12 years but less than 20 years 12,000 15,000

20 years or more 15,000 18,000.

--------------------------------------------------------------------

(B) The Under Secretary for Health shall specify a uniform

national rate for each range of years of service established by

or under this paragraph. The Under Secretary for Health may, as

to length of service in excess of 12 years, establish uniform

national rates for such ranges of years of service as the Under

Secretary for Health considers appropriate.

(3)(A) For service in a dental specialty with respect to which

there are extraordinary difficulties (on a nationwide basis or on

the basis of the needs of a specific medical facility) in the

recruitment or retention of qualified dentists, an annual rate of

not more than $30,000.

(B) For service by a dentist who serves only a portion of a

year in a dental specialty for which special pay is paid under

subparagraph (A), the annual rate shall be calculated on the

basis of the proportion of time served in the specialty for which

the special pay is paid.

(4)(A) For service in any of the following executive positions,

an annual rate not to exceed the rate applicable to that position

as follows:

Position Rate

Minimum Maximum

--------------------------------------------------------------------

Chief of Staff or in an Executive Grade $14,500 $25,000

Director Grade 0 25,000

Service Chief (or in a comparable 4,500 15,000.

position as determined by the Secretary

--------------------------------------------------------------------

(B) For service in any of the following executive positions,

the annual rate applicable to that position as follows:

Position Rate

--------------------------------------------------------------------

Deputy Service Director $20,000

Service Director 25,000

Deputy Assistant Under Secretary for Health 27,500

Assistant Under Secretary for Health (or in a 30,000.

comparable position as determined by the Secretary)

--------------------------------------------------------------------

(C) For service by a dentist who serves only a portion of a

year in an executive position listed in subparagraph (A) or (B)

or who serves a portion of a year in such a position and also

serves a portion of that year in another position or grade for

which special pay is provided under this section, the annual rate

shall be calculated on the basis of the proportion of time served

in the position or positions for which special pay is provided.

(5) For specialty or first board certification, $2,000 and for

subspecialty or secondary board certification, an additional

$500.

(6) For service in a specific geographic location with respect

to which there are extraordinary difficulties in the recruitment

or retention of qualified dentists in a specific category of

dentists, an annual rate not more than $12,000.

(7)(A) For service by a dentist with exceptional qualifications

within a specialty, an annual rate of not more than $5,000.

(B) Special pay under this paragraph may be paid to a dentist

only if the payment of such pay to that dentist is approved by

the Under Secretary for Health personally and on a case-by-case

basis and only to the extent that the rate paid under this

paragraph, when added to the total of the rates paid to that

dentist under paragraphs (1) through (6), does not exceed the

total rate that may be paid under those paragraphs to a dentist

with the same length of service, specialty, and position as the

dentist concerned.

(8) For a dentist who has successfully completed a

post-graduate year of hospital-based training in a program

accredited by the American Dental Association, an annual rate of

$2,000 for each of the first two years of service after

successful completion of that training.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 102, May 7, 1991, 105 Stat.

193; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct. 9,

1992, 106 Stat. 1984; Pub. L. 103-446, title XII, Sec. 1201(e)(22),

Nov. 2, 1994, 108 Stat. 4686; Pub. L. 106-419, title II, Sec.

202(a)-(f), Nov. 1, 2000, 114 Stat. 1840, 1841.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4118 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

2000 - Subsec. (b)(1). Pub. L. 106-419, Sec. 202(a), substituted

"$9,000" for "$3,500".

Subsec. (b)(2)(A). Pub. L. 106-419, Sec. 202(b), amended table

generally, inserting item relating to rates for service between 1

and 2 years, substituting items relating to rates for service

between 12 and 20 years and rates for service of 20 years or more

for item relating to rates for service of 12 years or more, and

increasing rates in existing items.

Subsec. (b)(3)(A). Pub. L. 106-419, Sec. 202(c), substituted

"$30,000" for "$20,000".

Subsec. (b)(4)(A), (B). Pub. L. 106-419, Sec. 202(d), amended

tables generally, increasing rates and moving items relating to

Service Director and Deputy Service Director from subpar. (A) to

(B).

Subsec. (b)(6). Pub. L. 106-419, Sec. 202(e), substituted

"$12,000" for "$5,000".

Subsec. (b)(8). Pub. L. 106-419, Sec. 202(f), added par. (8).

1994 - Subsec. (b)(3)(A). Pub. L. 103-446 substituted

"nationwide" for "nation-wide".

1992 - Subsec. (b)(2)(B), (4)(B), (7)(B). Pub. L. 102-405

substituted "Under Secretary for Health" for "Chief Medical

Director" wherever appearing.

EFFECTIVE DATE OF 2000 AMENDMENT

Pub. L. 106-419, title II, Sec. 202(h), Nov. 1, 2000, 114 Stat.

1841, provided that: "The amendments made by this section [amending

this section and section 7438 of this title] shall apply with

respect to agreements entered into by dentists under subchapter III

of chapter 74 of title 38, United States Code, on or after the date

of the enactment of this Act [Nov. 1, 2000]."

EFFECTIVE DATE

Section effective on first day of first pay period after July 1,

1991, subject to transition and savings provisions and prohibition

on retroactive agreements, see section 104 of Pub. L. 102-40, set

out as a note under section 7431 of this title.

TRANSITION

Pub. L. 106-419, title II, Sec. 202(i), Nov. 1, 2000, 114 Stat.

1841, provided that: "In the case of an agreement entered into by a

dentist under subchapter III of chapter 74 of title 38, United

States Code, before the date of the enactment of this Act [Nov. 1,

2000] that expires after that date, the Secretary of Veterans

Affairs and the dentist concerned may agree to terminate that

agreement as of the date of the enactment of this Act in order to

permit a new agreement in accordance with section 7435 of such

title, as amended by this section, to take effect as of that date."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7436, 7437, 7438 of this

title.

-End-

-CITE-

38 USC Sec. 7436 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

Sec. 7436. Special pay: part-time dentists

-STATUTE-

(a) Subject to section 7431(e) of this title and subsection (b)

of this section, special pay under this subchapter for dentists

employed on a part-time basis shall be based on the special-pay

factors and annual rates specified in section 7435 of this title.

(b) The annual rate of special pay paid to a dentist employed on

a part-time basis shall bear the same ratio to the annual rate that

the dentist would be paid under section 7435 of this title (other

than for full-time status) if the dentist were employed on a

full-time basis as the amount of part-time employment by the

dentist bears to full-time employment, except that such ratio may

not exceed 3/4.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 102, May 7, 1991, 105 Stat.

194.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4118 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

EFFECTIVE DATE

Section effective on first day of first pay period after July 1,

1991, subject to transition and savings provisions and prohibition

on retroactive agreements, see section 104 of Pub. L. 102-40, set

out as a note under section 7431 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7437 of this title.

-End-

-CITE-

38 USC Sec. 7437 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

Sec. 7437. Special pay: general provisions

-STATUTE-

(a) A physician who is provided special pay for service in an

executive position under paragraph (4)(B) of section 7433(b) of

this title may not also be provided scarce specialty special pay

under paragraph (3) of that section. A dentist who is provided

special pay for service in an executive position under paragraph

(4) of section 7435(b) of this title for service as a Service

Director, Deputy Service Director, Deputy Assistant Under Secretary

for Health, or Assistant Under Secretary for Health may not also be

provided scarce specialty special pay under paragraph (3) of that

section.

(b) The following determinations under this subchapter shall be

made under regulations prescribed under section 7431 of this title:

(1) A determination that there are extraordinary difficulties

(on a nation-wide basis or on the basis of the needs of a

specific medical facility) in the recruitment or retention of

qualified physicians in a medical specialty or in the recruitment

or retention of qualified dentists in a dental specialty.

(2) A determination of the rate of special pay to be paid to a

physician or dentist for a factor of special pay for which the

applicable rate is specified as a range of rates.

(3) A determination of whether there are extraordinary

difficulties in a specific geographic location in the recruitment

or retention of qualified physicians in a specific category of

physicians or in the recruitment or retention of qualified

dentists in a specific category of dentists.

(c) A determination for the purposes of this subchapter that

there are extraordinary difficulties in the recruitment or

retention of qualified physicians in a medical specialty, or in the

recruitment or retention of qualified dentists in a dental

specialty, on the basis of the needs of a specific medical facility

may only be made upon the request of the director of that facility.

(d) A physician or dentist may not be provided scarce specialty

pay under section 7433(b), 7434(b), 7435(b), or 7436(b) of this

title (whichever is applicable) on the basis of the needs of a

specific medical facility unless the Secretary also determines that

geographic location pay under that section is insufficient to meet

the needs of that facility for qualified physicians or dentists, as

the case may be.

(e)(1) A physician or dentist shall be paid special pay under

this subchapter at a rate not less than the rate of special pay the

physician or dentist was paid under section 4118 of this title as

of the day before the effective date of this subchapter if the

physician or dentist -

(A) is employed on a full-time basis in the Veterans Health

Administration;

(B) was employed as a physician or dentist on a full-time basis

in the Administration on the day before such effective date; and

(C) on such effective date was being paid for no special-pay

factors other than primary, full-time, length of service, and

specialty or board certification.

(2) A physician or dentist shall be paid special pay under this

subchapter at a rate not less than the rate of special pay the

physician or dentist was paid under section 4118 of this title as

of the day before the effective date of this subchapter if the

physician or dentist -

(A) is employed on a part-time basis in the Veterans Health

Administration;

(B) was employed as a physician or dentist on a part-time basis

in the Administration on the day before such effective date; and

(C) on such effective date was being paid for no special-pay

factors other than primary, full-time, length of service, and

specialty or board certification.

(f) Any amount of special pay payable under this subchapter shall

be paid in equal installments in accordance with regularly

established pay periods.

(g) Except as otherwise expressly provided by law, special pay

may not be provided to a physician or dentist in the Veterans

Health Administration for any factor not specified in section 7433,

7434, 7435, or 7436, as applicable, of this title.

(h) In no case may the total amount of compensation paid to a

physician or dentist under this title in any year exceed the amount

of annual compensation (excluding expenses) specified in section

102 of title 3.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 102, May 7, 1991, 105 Stat.

194; amended Pub. L. 102-405, title II, Sec. 204(a), title III,

Sec. 302(c)(1), Oct. 9, 1992, 106 Stat. 1983, 1984.)

-REFTEXT-

REFERENCES IN TEXT

Section 4118 of this title, referred to in subsec. (e)(1), (2),

was repealed by Pub. L. 102-40, title IV, Sec. 401(a)(3), May 7,

1991, 105 Stat. 210. See sections 7431 to 7440 of this title.

For the effective date of this subchapter, referred to in subsec.

(e)(1), (2), see section 104 of Pub. L. 102-40, set out as an

Effective Date note under section 7431 of this title.

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4118 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1992 - Subsec. (a). Pub. L. 102-405, Sec. 302(c)(1), substituted

"Under Secretary for Health" for "Chief Medical Director" in two

places.

Subsec. (e)(1)(C), (2)(C). Pub. L. 102-405, Sec. 204(a),

substituted "for no special-pay factors other than primary,

full-time, length of service, and specialty or board certification"

for "only for the special-pay factors of primary, full-time, and

length of service" in par. (1)(C) and for "only for the special-pay

factors of primary and length of service" in par. (2)(C).

EFFECTIVE DATE OF 1992 AMENDMENT

Section 204(b) of Pub. L. 102-405 provided that: "The amendments

made by subsection (a) [amending this section] shall apply as if

enacted with the amendment made by section 102 of the Department of

Veterans Affairs Health-Care Personnel Act of 1991 (Public Law

102-40; 105 Stat. 187) [enacting this section]."

EFFECTIVE DATE

Section effective on first day of first pay period after July 1,

1991, subject to transition and savings provisions and prohibition

on retroactive agreements, see section 104 of Pub. L. 102-40, set

out as a note under section 7431 of this title.

AVAILABILITY OF FUNDS

Section 204(c) of Pub. L. 102-405 provided that: "Expenses

incurred for periods before October 1, 1991, by reason of the

amendments made by subsection (a) [amending this section] may be

charged to fiscal year 1992 appropriations available for the same

purpose."

-End-

-CITE-

38 USC Sec. 7438 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

Sec. 7438. Special pay: coordination with other benefits laws

-STATUTE-

(a) Special pay paid under this subchapter shall be in addition

to any other pay and allowances to which a physician or dentist is

entitled.

(b)(1) A physician or dentist who has no section 4118 service and

has completed not less than 15 years of service as a physician or

dentist in the Veterans Health Administration shall be entitled to

have special pay paid to the physician or dentist under this

subchapter considered basic pay for the purposes of chapter 83 or

84 of title 5, as appropriate.

(2) A physician or dentist who has section 4118 service and has

completed a total of not less than 15 years of service as a

physician or dentist in the Veterans Health Administration shall be

entitled to have special pay paid to the physician or dentist under

this subchapter considered basic pay for the purposes of chapter 83

or 84, as appropriate, of title 5 as follows:

(A) In an amount equal to the amount that would have been so

considered under section 4118 of this title on the day before the

effective date of this section based on the rates of special pay

the physician or dentist was entitled to receive under that

section on the day before such effective date.

(B) With respect to any amount of special pay received under

this subchapter in excess of the amount such physician or dentist

was entitled to receive under section 4118 of this title on the

day before the effective date of this section, in an amount equal

to 25 percent of such excess amount for each two years that the

physician or dentist has completed as a physician or dentist in

the Veterans Health Administration after the effective date of

this section.

(3) All special pay paid under this subchapter shall be included

in average pay (as defined in sections 8331(4) or 8401(3) of title

5, as appropriate) for purposes of computing benefits paid under

section 8337, 8341(d) or (e), 8442(b), 8443, or 8451 of such title.

(4) Special pay paid under section 4118 of this title, as in

effect before the effective date of this section, to a physician or

dentist who has section 4118 service shall be credited to the

physician or dentist for the same purposes and in the same manner

and to the same extent that such special pay was credited to the

physician or dentist before such effective date.

(5) Notwithstanding paragraphs (1) and (2), a dentist employed as

a dentist in the Veterans Health Administration on the date of the

enactment of the Veterans Benefits and Health Care Improvement Act

of 2000 shall be entitled to have special pay paid to the dentist

under section 7435(b)(2)(A) of this title (referred to as "tenure

pay") considered basic pay for the purposes of chapter 83 or 84, as

appropriate, of title 5 only as follows:

(A) In an amount equal to the amount that would have been so

considered under such section on the day before such date based

on the rates of special pay the dentist was entitled to receive

under that section on the day before such date.

(B) With respect to any amount of special pay received under

that section in excess of the amount such dentist was entitled to

receive under such section on the day before such date, in an

amount equal to 25 percent of such excess amount for each two

years that the physician or dentist has completed as a physician

or dentist in the Veterans Health Administration after such date.

(6) For purposes of this subsection:

(A) The term "physician or dentist who has no section 4118

service" means a physician or dentist employed as a physician or

dentist in the Veterans Health Administration who has no previous

service as a physician or dentist in the Administration (or its

predecessor) before the effective date of this section.

(B) The term "physician or dentist who has section 4118

service" means a physician or dentist employed as a physician or

dentist in the Veterans Health Administration who has previous

service as a physician or dentist in the Administration (or its

predecessor) before the effective date of this section.

(C) Service in any predecessor entity of the Veterans Health

Administration shall be considered to be service in the Veterans

Health Administration.

(c) Compensation paid as special pay under this subchapter or

under an agreement entered into under section 4118 of this title

(as in effect on the day before the effective date of the

Department of Veterans Affairs Physician and Dentist Recruitment

and Retention Act of 1991) shall be considered as annual pay for

the purposes of chapter 87 of title 5, relating to life insurance

for Federal employees.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 102, May 7, 1991, 105 Stat.

196; amended Pub. L. 106-419, title II, Sec. 202(g), Nov. 1, 2000,

114 Stat. 1841.)

-REFTEXT-

REFERENCES IN TEXT

Section 4118 of this title, referred to in subsecs. (b) and (c),

was repealed by Pub. L. 102-40, title IV, Sec. 401(a)(3), May 7,

1991, 105 Stat. 210.

For the effective date of this subchapter, referred to in subsec.

(b), see section 104(a) of Pub. L. 102-40, set out as an Effective

Date note under section 7431 of this title.

The date of the enactment of the Veterans Benefits and Health

Care Improvement Act of 2000, referred to in subsec. (b)(5), is the

date of enactment of Pub. L. 106-419, which was approved Nov. 1,

2000.

The effective date of the Department of Veterans Affairs

Physician and Dentist Recruitment and Retention Act of 1991,

referred to in subsec. (c), probably means the effective date of

title I of Pub. L. 102-40, which enacted this subchapter, and which

is generally effective on first day of first pay period after July

1, 1991, subject to certain transition and savings provisions, see

section 104 of Pub. L. 102-40, set out as a note under section 7431

of this title.

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4118 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

2000 - Subsec. (b)(5), (6). Pub. L. 106-419 added par. (5) and

redesignated former par. (5) as (6).

EFFECTIVE DATE OF 2000 AMENDMENT

Amendment by Pub. L. 106-419 applicable with respect to

agreements entered into by dentists under this subchapter on or

after Nov. 1, 2000, see section 202(h) of Pub. L. 106-419, set out

as a note under section 7435 of this title.

EFFECTIVE DATE

Section effective on first day of first pay period after July 1,

1991, subject to transition and savings provisions and prohibition

on retroactive agreements, see section 104 of Pub. L. 102-40, set

out as a note under section 7431 of this title.

-End-

-CITE-

38 USC Sec. 7439 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

Sec. 7439. Periodic review of pay of physicians and dentists;

quadrennial report

-STATUTE-

(a) In order to make possible the recruitment and retention of a

well-qualified work force of physicians and dentists capable of

providing quality care for eligible veterans, it is the policy of

Congress to ensure that the levels of total pay for physicians and

dentists of the Veterans Health Administration are fixed at levels

reasonably comparable -

(1) with the levels of total pay of physicians and dentists

employed by or serving in other departments and agencies of the

Federal Government; and

(2) with the income of non-Federal physicians and dentists for

the performance of services as physicians and dentists.

(b)(1) To assist the Congress and the President in carrying out

the policy stated in subsection (a), the Secretary shall -

(A) define the bases for pay distinctions, if any, among

various categories of physicians and dentists, including

distinctions between physicians and dentists employed by the

Veterans Health Administration and physicians and dentists

employed by other departments and agencies of the Federal

Government and between all Federal sector and non-Federal sector

physicians and dentists; and

(B) obtain measures of income from the employment or practice

of physicians and dentists outside the Administration, including

both the Federal and non-Federal sectors, for use as guidelines

for setting and periodically adjusting the amounts of special pay

for physicians and dentists of the Administration.

(2) The Secretary shall submit to the President a report, on such

date as the President may designate but not later than December 31,

1994, and once every four years thereafter, recommending

appropriate rates of special pay to carry out the policy set forth

in subsection (a) with respect to the pay of physicians and

dentists in the Veterans Health Administration. The Secretary shall

include in such report, when considered appropriate and necessary

by the Secretary, recommendations for modifications of the special

pay levels set forth in this subchapter whenever -

(A) the Department is unable to recruit or retain a sufficient

work force of well-qualified physicians and dentists in the

Administration because the incomes and other employee benefits,

to the extent that those benefits are reasonably quantifiable, of

physicians and dentists outside the Administration who perform

comparable types of duties are significantly in excess of the

levels of total pay (including basic pay and special pay) and

other employee benefits, to the extent that those benefits are

reasonably quantifiable, available to those physicians and

dentists employed by the Administration; or

(B) other extraordinary circumstances are such that special pay

levels are needed to recruit or retain a sufficient number of

well-qualified physicians and dentists.

(c) The President shall include in the budget transmitted to the

Congress under section 1105 of title 31 after the submission of

each report of the Secretary under subsection (b)(2)

recommendations with respect to the exact rates of special pay for

physicians and dentists under this subchapter and the cost of those

rates compared with the cost of the special pay rates in effect

under this subchapter at the time the budget is transmitted.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 102, May 7, 1991, 105 Stat.

197.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4118 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

EFFECTIVE DATE

Section effective on first day of first pay period after July 1,

1991, subject to transition and savings provisions and prohibition

on retroactive agreements, see section 104 of Pub. L. 102-40, set

out as a note under section 7431 of this title.

-End-

-CITE-

38 USC Sec. 7440 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER III - SPECIAL PAY FOR PHYSICIANS AND DENTISTS

-HEAD-

Sec. 7440. Annual report

-STATUTE-

The Secretary shall submit to the Committees on Veterans' Affairs

of the Senate and House of Representatives an annual report on the

use of the authorities provided in this subchapter. The report

shall be submitted each year as part of the budget justification

documents submitted by the Secretary in support of the budget of

the President submitted pursuant to section 1105 of title 31 that

year. Each such report shall include the following:

(1) A review of the use of the authorities provided in this

subchapter (including the Secretary's and Under Secretary for

Health's actions, findings, recommendations, and other activities

under this subchapter) during the preceding fiscal year and the

fiscal year during which the report is submitted.

(2) The plans for the use of the authorities provided in this

subchapter for the next fiscal year.

(3) A description of the amounts of special pay paid during the

preceding fiscal year, shown by category of pay.

(4) A list of those geographic areas, and those scarce

specialties, for which special pay was paid during the preceding

fiscal year, those for which special pay is being paid during the

current fiscal year, and those for which special pay is expected

to be paid during the next fiscal year, together with a summary

of any differences among those three lists.

(5) The number of physicians and dentists (A) who left

employment with the Veterans Health Administration during the

preceding year, (B) who changed from full-time status to

part-time status, (C) who changed from part-time status to

full-time status, as well as (D) a summary of the reasons

therefor.

(6) By specialty, the number of positions created and the

number of positions abolished during the preceding fiscal year

and a summary of the reasons for such actions.

(7) The number of unfilled physician and dentist positions in

each specialty in the Veterans Health Administration, the average

and maximum lengths of time that such positions have been

unfilled, and a summary of the reasons that such positions remain

unfilled and, in the case of any specialty not designated as a

scarce specialty for purposes of special pay under this

subchapter, an explanation (including comparisons with other

specialties that have been so designated) of why the specialty

has not been so designated.

-SOURCE-

(Added Pub. L. 102-40, title I, Sec. 102, May 7, 1991, 105 Stat.

198; amended Pub. L. 103-446, title XII, Sec. 1201(c)(6), Nov. 2,

1994, 108 Stat. 4684.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4118 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1994 - Par. (1). Pub. L. 103-446 substituted "Under Secretary for

Health's actions" for "Chief Medical Director's actions".

EFFECTIVE DATE

Section effective on first day of first pay period after July 1,

1991, subject to transition and savings provisions and prohibition

on retroactive agreements, see section 104 of Pub. L. 102-40, set

out as a note under section 7431 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7432 of this title.

-End-

-CITE-

38 USC SUBCHAPTER IV - PAY FOR NURSES AND OTHER

HEALTH-CARE PERSONNEL 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

-HEAD-

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

-End-

-CITE-

38 USC Sec. 7451 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

-HEAD-

Sec. 7451. Nurses and other health-care personnel: competitive pay

-STATUTE-

(a)(1) 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.

(2) The health-care personnel positions referred to in paragraph

(1) (hereinafter in this section referred to as "covered

positions") are the following:

(A) Registered nurse.

(B) Such positions referred to in paragraphs (1) and (3) of

section 7401 of this title (other than the positions of

physician, dentist, and registered nurse) as the Secretary may

determine upon the recommendation of the Under Secretary for

Health.

(3)(A) 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.

(B) 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:

(i) The Veterans Memorial Medical Center in the Republic of the

Philippines.

(ii) Department of Veterans Affairs health-care facilities

located outside the contiguous States, Alaska, and Hawaii.

(4) 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)(1) 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.

(2) The maximum rate of basic pay for any grade for a covered

position may not exceed the maximum rate of basic pay established

for positions in level V of the Executive Schedule under section

5316 of title 5.

(3) 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.

(d)(1) 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 -

(A) 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

(B) 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.

(2) 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.

(3)(A) 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.

(B) 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.

(C)(i) 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 -

(I) has conducted a survey of compensation for certified

registered nurse anesthetists in the local labor-market area of

the facility under subparagraph (B);

(II) has used all available administrative authority with

regard to collection of survey data; and

(III) 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.

(ii) 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.

(D) 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.

(E) 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.

(4) 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.

(5) Information collected by the Department in surveys conducted

under this subsection is not subject to disclosure under section

552 of title 5.

(6) In this subsection -

(A) 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 -

(i) 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

(ii) other employee benefits for those positions to the

extent that those benefits are reasonably quantifiable.

(B) 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)(1) 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.

(2) 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).

(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.

(4) 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:

(A) 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.

(B) 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.

(C) 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.

(D) 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.

(5) 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) A summary and analysis of the information contained in the

most recent reports submitted by facility directors under

paragraph (4).

(B) The information for each such facility specified in

paragraph (4).

(f) Not later than March 1 of each year, the Secretary shall

submit to the Committees on Veterans' Affairs of the Senate and

House of Representatives a report regarding any pay adjustments

under the authority of subsection (d) effective during the 12

months preceding the submission of the report. Each such report

shall set forth, by health-care facility, the percentage of such

increases and, in any case in which no increase was made, the basis

for not providing an increase.

(g) For the purposes of this section, the term "health-care

facility" means a medical center, an independent outpatient clinic,

or an independent domiciliary facility.

-SOURCE-

(Added Pub. L. 101-366, title I, Sec. 102(b), Aug. 15, 1990, 104

Stat. 431, Sec. 4141; renumbered Sec. 7451 and amended Pub. L.

102-40, title III, Sec. 301(b), (c), title IV, Sec. 401(c)(1)(A),

(2), May 7, 1991, 105 Stat. 208, 238; Pub. L. 102-405, title III,

Sec. 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 102-585,

title III, Secs. 301(b)-303, 304(b), 307, Nov. 4, 1992, 106 Stat.

4951-4953; Pub. L. 103-446, title XII, Sec. 1201(c)(7), (e)(23),

Nov. 2, 1994, 108 Stat. 4684, 4686; Pub. L. 104-110, title I, Sec.

101(i), Feb. 13, 1996, 110 Stat. 768; Pub. L. 106-419, title II,

Sec. 201(a), Nov. 1, 2000, 114 Stat. 1838; Pub. L. 107-135, title

I, Sec. 133, Jan. 23, 2002, 115 Stat. 2454.)

-REFTEXT-

REFERENCES IN TEXT

Subsection (g), referred to in subsec. (c)(1), was repealed and

subsec. (h) was redesignated (g) by Pub. L. 106-419, title II, Sec.

201(a)(4), Nov. 1, 2000, 114 Stat. 1840.

The General Schedule, referred to in subsec. (d)(1)(A), is set

out under section 5332 of Title 5, Government Organization and

Employees.

-MISC1-

AMENDMENTS

2002 - Subsec. (d)(3)(A). Pub. L. 107-135, Sec. 133(1)(A), struck

out "beginning rates of" before "compensation for corresponding

health-care professionals" in two places.

Subsec. (d)(3)(B). Pub. L. 107-135, Sec. 133(1)(B), struck out

"beginning rates of" before "compensation for corresponding

health-care professionals".

Subsec. (d)(3)(C)(i). Pub. L. 107-135, Sec. 133(1)(C), struck out

"beginning rates of" before "compensation" in introductory

provisions and in subcl. (I).

Subsec. (d)(4). Pub. L. 107-135, Sec. 133(2), struck out "or at

any other time that an adjustment in rates of pay is scheduled to

take place under this subsection" after "paragraph (3)(B)" and

"Whenever a director makes such a determination, the director shall

within 10 days notify the Under Secretary for Health of the

decision and the reasons for the decision." at end.

Subsec. (e)(4). Pub. L. 107-135, Sec. 133(3), struck out "grade

in a" before "covered position" in subpar. (A), struck out "grade

of a" before "covered position" and substituted "that position" for

"that grade" in subpar. (B), and struck out "grade of a" before

"covered position" in subpar. (D).

2000 - Subsec. (d)(1). Pub. L. 106-419, Sec. 201(a)(1)(A)(i),

substituted "Subject to subsection (e), the rates" for "The rates"

in introductory provisions.

Subsec. (d)(1)(A). Pub. L. 106-419, Sec. 201(a)(1)(A)(ii),

substituted "section 5303" for "section 5305" and inserted "and to

be by the same percentage" after "to have the same effective date".

Subsec. (d)(2). Pub. L. 106-419, Sec. 201(a)(1)(B), substituted

"Except as provided in paragraph (1)(A), such" for "Such" in second

sentence.

Subsec. (d)(3)(B). Pub. L. 106-419, Sec. 201(a)(1)(C), inserted

after first sentence "To the extent practicable, the director shall

use third-party industry wage surveys to meet the requirements of

the preceding sentence.", inserted before penultimate sentence "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.", and in penultimate sentence

inserted "or published" after "survey is completed".

Subsec. (d)(3)(C)(iii). Pub. L. 106-419, Sec. 201(a)(1)(D),

struck out cl. (iii) which read as follows: "The authority of the

director to use such additional data under this subparagraph with

respect to certified registered nurse anesthetists expires on

January 1, 1998."

Subsec. (e). Pub. L. 106-419, Sec. 201(a)(2), amended subsec. (e)

generally. Prior to amendment, subsec. (e) read as follows:

"Adjustments in rates of basic pay under subsection (d) may

increase or reduce the rates of basic pay applicable to any grade

of a covered position. In the case of such an adjustment that

reduces the rates of pay for a grade, an employee serving at a

Department health-care facility on the day before the effective

date of that adjustment in a position affected by the adjustment

may not (by reason of that adjustment) incur a reduction in the

rate of basic pay applicable to that employee so long as the

employee continues to serve in that covered position at that

facility. If such an employee is subsequently promoted to a higher

grade, or advanced to a higher step within the employee's grade,

for which the rate of pay as so adjusted is lower than the

employee's rate of basic pay on the day before the effective date

of the promotion, the employee shall continue to be paid at a rate

of basic pay not less than the rate of basic pay applicable to the

employee before the promotion so long as the employee continues to

serve in that covered position at that facility."

Subsec. (f). Pub. L. 106-419, Sec. 201(a)(3), substituted "March

1 of each year" for "February 1 of 1991, 1992, and 1993" and

"subsection (d)" for "subsection (d)(1)(A)".

Subsecs. (g), (h). Pub. L. 106-419, Sec. 201(a)(4), redesignated

subsec. (h) as (g) and struck out former subsec. (g) which directed

that not later than Dec. 1 of 1991, 1992, and 1993, the Secretary

was to submit to Congress a report regarding the exercise of

authorities provided in this section for the preceding fiscal year

and listed items to be included in report.

1996 - Subsec. (d)(3)(C)(iii). Pub. L. 104-110 substituted

"January 1, 1998" for "April 1, 1995".

1994 - Subsec. (d)(3)(C)(i)(I). Pub. L. 103-446, Sec.

1201(e)(23), substituted "labor-market area" for "labor market

area".

Subsec. (g)(1). Pub. L. 103-446, Sec. 1201(c)(7), substituted

"Under Secretary for Health's actions" for "Chief Medical

Director's actions".

1992 - Subsec. (a)(2)(B). Pub. L. 102-405 substituted "Under

Secretary for Health" for "Chief Medical Director".

Subsec. (a)(3). Pub. L. 102-585, Sec. 302, designated existing

provisions as subpar. (A), substituted "Except as provided in

subparagraph (B), the rates" for "The rates", and added subpar.

(B).

Subsec. (a)(4). Pub. L. 102-405 substituted "Under Secretary for

Health" for "Chief Medical Director".

Subsec. (b). Pub. L. 102-585, Sec. 301(b), substituted "five" for

"four".

Subsec. (d)(1)(B). Pub. L. 102-405 substituted "Under Secretary

for Health" for "Chief Medical Director".

Subsec. (d)(3)(C). Pub. L. 102-585, Sec. 303(2), added subpar.

(C). Former subpar. (C) redesignated (D).

Pub. L. 102-405 substituted "Under Secretary for Health" for

"Chief Medical Director".

Subsec. (d)(3)(D). Pub. L. 102-585, Sec. 303(1), redesignated

subpar. (C) as (D). Former subpar. (D) redesignated (E).

Pub. L. 102-405 substituted "Under Secretary for Health" for

"Chief Medical Director".

Subsec. (d)(3)(E). Pub. L. 102-585, Sec. 303(1), redesignated

subpar. (D) as (E).

Subsec. (d)(4). Pub. L. 102-405 substituted "Under Secretary for

Health" for "Chief Medical Director" in two places.

Subsec. (g)(9). Pub. L. 102-585, Sec. 304(b), added par. (9).

Subsec. (g)(10). Pub. L. 102-585, Sec. 307, added par. (10).

1991 - Pub. L. 102-40, Sec. 401(c)(1)(A), renumbered section 4141

of this title as this section.

Subsec. (a)(2)(B). Pub. L. 102-40, Sec. 401(c)(2)(A)(i),

substituted "paragraphs (1) and (3) of section 7401" for "clauses

(1) and (3) of section 4104".

Subsec. (a)(3). Pub. L. 102-40, Secs. 301(c), 401(c)(2)(A)(ii),

substituted "7404" for "4107" and inserted before period at end "or

chapter 53 of title 5".

Subsec. (a)(4). Pub. L. 102-40, Sec. 401(c)(2)(A)(iii),

substituted "7452" for "4142".

Subsec. (b). Pub. L. 102-40, Sec. 401(c)(2)(B), substituted

"7401(1)" for "4104(1)" and "7404(b)" for "4107(b)".

Subsec. (d)(1)(B). Pub. L. 102-40, Sec. 301(b)(1), inserted "or

the Chief Medical Director, with respect to covered Regional and

Central Office employees in that grade," before "determines".

Subsec. (d)(3)(C). Pub. L. 102-40, Sec. 301(b)(2)(B), added

subpar. (C). Former subpar. (C) redesignated (D).

Subsec. (d)(3)(D). Pub. L. 102-40, Sec. 301(b)(2)(A),

redesignated subpar. (C) as (D) and inserted "or Chief Medical

Director" after "facility".

Subsec. (d)(4). Pub. L. 102-40, Sec. 301(b)(3), inserted ", or

the Chief Medical Director with respect to Regional and Central

Office employees," after "facility".

Subsec. (g)(8). Pub. L. 102-40, Sec. 401(c)(2)(C), substituted

"7452(b)(2)" for "4142(b)(2)".

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by sections 301(b) to 303 and 304(b) of Pub. L. 102-585

effective with respect to first pay period beginning on or after

end of six-month period beginning on Nov. 4, 1992, see section 308

of Pub. L. 102-585, set out as a note under section 7404 of this

title.

EFFECTIVE DATE

Section 104 of Pub. L. 101-366, as amended by Pub. L. 102-40,

title III, Sec. 301(e), May 7, 1991, 105 Stat. 208, provided that:

"(a) In General. - (1) Except as provided in subsection (b),

section 101 [amending former section 4107 of this title and

enacting provisions set out as a note under former section 4107 of

this title] and the amendments made by section 102 [enacting this

section and section 4142 [now 7452] of this title and amending

former sections 4104 and 4107 of this title] shall take effect on

the date of enactment [Aug. 15, 1990].

"(2) The amendment made by section 103 [amending former section

4107 of this title] shall take effect on the first day of the first

pay period beginning after April 1, 1991.

"(b) New Pay Rates. - The rates of basic pay established pursuant

to section 4141 [now 7451] of title 38, United States Code, as

added by section 102, shall take effect for covered positions (as

defined in that section) with respect to the first pay period

beginning on or after April 1, 1991."

SAVINGS PROVISION

Section 301(a) of Pub. L. 102-40 provided that: "Physician

assistants and expanded-function dental auxiliaries shall continue

to be paid after August 14, 1990, according to the Nurse Schedule

in section 4107(b) of title 38 [former section 4107(b) of this

title], United States Code, as in effect on August 14, 1990, until

the effective date of a determination by the Secretary to convert

those occupations to 'covered positions' and pay them pursuant to

section 7451 of such title, as redesignated by section 401(c)."

REPORT ON REQUESTS FOR WAIVERS OF PAY REDUCTIONS FOR REEMPLOYED

ANNUITANTS TO FILL NURSE POSITIONS

Pub. L. 107-135, title I, Sec. 103, Jan. 23, 2002, 115 Stat.

2450, provided that:

"(a) Report. - Not later than March 28 of each of 2002 and 2003,

the Secretary of Veterans Affairs shall submit to the Committees on

Veterans' Affairs of the Senate and the House of Representatives

and to the National Commission on VA Nursing established under

subtitle D [set out below] a report describing each request of the

Secretary, during the fiscal year preceding such report, to the

Director of the Office of Personnel Management for the following:

"(1) A waiver under subsection (i)(1)(A) of section 8344 of

title 5, United States Code, of the provisions of such section in

order to meet requirements of the Department of Veterans Affairs

for appointments to nurse positions in the Veterans Health

Administration.

"(2) A waiver under subsection (f)(1)(A) of section 8468 of

title 5, United States Code, of the provisions of such section in

order to meet requirements of the Department for appointments to

such positions.

"(3) A grant of authority under subsection (i)(1)(B) of section

8344 of title 5, United States Code, for the waiver of the

provisions of such section in order to meet requirements of the

Department for appointments to such positions.

"(4) A grant of authority under subsection (f)(1)(B) of section

8468 of title 5, United States Code, for the waiver of the

provisions of such section in order to meet requirements of the

Department for appointments to such positions.

"(b) Information on Responses to Requests. - The report under

subsection (a) shall specify for each request covered by the report

-

"(1) the response of the Director to such request; and

"(2) if such request was granted, whether or not the waiver or

authority, as the case may be, assisted the Secretary in meeting

requirements of the Department for appointments to nurse

positions in the Veterans Health Administration."

NATIONAL COMMISSION ON VA NURSING

Pub. L. 107-135, title I, subtitle D, Jan. 23, 2002, 115 Stat.

2454, provided that:

"SEC. 141. ESTABLISHMENT OF COMMISSION.

"(a) Establishment. - There is hereby established in the

Department of Veterans Affairs a commission to be known as the

'National Commission on VA Nursing' (hereinafter in this subtitle

referred to as the 'Commission').

"(b) Composition. - The Commission shall be composed of 12

members appointed by the Secretary of Veterans Affairs as follows:

"(1) At least two shall be recognized representatives of

employees (including nurses) of the Department of Veterans

Affairs.

"(2) At least one shall be a representative of professional

associations of nurses of the Department or similar organizations

affiliated with the Department's health care practitioners.

"(3) At least one shall be a nurse from a nursing school

affiliated with the Department of Veterans Affairs.

"(4) At least two shall be representatives of veterans.

"(5) At least one shall be an economist.

"(6) The remainder shall be appointed in such manner as the

Secretary considers appropriate.

"(c) Chair of Commission. - The Secretary of Veterans Affairs

shall designate one of the members of the Commission to chair the

Commission.

"(d) Period of Appointment; Vacancies. - Members shall be

appointed for the life of the Commission. Any vacancy in the

Commission shall be filled in the same manner as the original

appointment.

"(e) Initial Organization Requirements. - All appointments to the

Commission shall be made not later than 60 days after the date of

the enactment of this Act [Jan. 23, 2002]. The Commission shall

convene its first meeting not later than 60 days after the date as

of which all members of the Commission have been appointed.

"SEC. 142. DUTIES OF COMMISSION.

"(a) Assessment. - The Commission shall -

"(1) consider legislative and organizational policy changes to

enhance the recruitment and retention of nurses and other nursing

personnel by the Department of Veterans Affairs; and

"(2) assess the future of the nursing profession within the

Department.

"(b) Recommendations. - The Commission shall recommend

legislative and organizational policy changes to enhance the

recruitment and retention of nurses and other nursing personnel in

the Department.

"SEC. 143. REPORTS.

"(a) Commission Report. - The Commission shall, not later than

two years after the date of its first meeting, submit to Congress

and the Secretary of Veterans Affairs a report on the Commission's

findings and recommendations.

"(b) Secretary of Veterans Affairs Report. - Not later than 60

days after the date of the Commission's report under subsection

(a), the Secretary shall submit to Congress a report -

"(1) providing the Secretary's views on the Commission's

findings and recommendations; and

"(2) explaining what actions, if any, the Secretary intends to

take to implement the recommendations of the Commission and the

Secretary's reasons for doing so.

"SEC. 144. POWERS.

"(a) Hearings. - The Commission or, at its direction, any panel

or member of the Commission, may, for the purpose of carrying out

the provisions of this subtitle, hold hearings and take testimony

to the extent that the Commission or any member considers

advisable.

"(b) Information. - The Commission may secure directly from any

Federal department or agency information that the Commission

considers necessary to enable the Commission to carry out its

responsibilities under this subtitle.

"SEC. 145. PERSONNEL MATTERS.

"(a) Pay of Members. - Members of the Commission shall serve

without pay by reason of their work on the Commission.

"(b) Travel Expenses. - The members of the Commission shall be

allowed travel expenses, including per diem in lieu of subsistence,

at rates authorized for employees of agencies under subchapter I of

chapter 57 of title 5, United States Code, while away from their

homes or regular places of business in the performance of services

for the Commission.

"(c) Staff. - (1) The Secretary may, without regard to the

provisions of title 5, United States Code, governing appointments

in the competitive service, appoint a staff director and such

additional personnel as may be necessary to enable the Commission

to perform its duties.

"(2) The Secretary may fix the pay of the staff director and

other personnel appointed under paragraph (1) without regard to the

provisions of chapter 51 and subchapter III of chapter 53 of title

5, United States Code, relating to classification of positions and

General Schedule pay rates, except that the rate of pay fixed under

this paragraph for the staff director may not exceed the rate

payable for level V of the Executive Schedule under section 5316 of

such title and the rate of pay for other personnel may not exceed

the maximum rate payable for grade GS-15 of the General Schedule.

"(d) Detail of Government Employees. - Upon request of the

Secretary, the head of any Federal department or agency may detail,

on a nonreimbursable basis, any personnel of that department or

agency to the Commission to assist it in carrying out its duties.

"SEC. 146. TERMINATION OF COMMISSION.

"The Commission shall terminate 90 days after the date of the

submission of its report under section 143(a)."

REPORT ON NURSE LOCALITY PAY

Pub. L. 105-368, title IX, Sec. 905, Nov. 11, 1998, 112 Stat.

3361, provided that:

"(a) Report Required. - (1) Not later than February 1, 1999, the

Secretary of Veterans Affairs shall submit to the Committees on

Veterans' Affairs of the Senate and the House of Representatives a

report assessing the system of locality-based pay for nurses

established under the Department of Veterans Affairs Nurse Pay Act

of 1990 (Public Law 101-366) and now set forth in section 7451 of

title 38, United States Code.

"(2) The Secretary shall submit with the report under paragraph

(1) a copy of the report on the locality pay system prepared by the

contractor pursuant to a contract with Systems Flow, Inc., that was

entered into on May 22, 1998.

"(b) Matters To Be Included. - The report of the Secretary under

subsection (a)(1) shall include the following:

"(1) An assessment of the effects of the locality-based pay

system, including information, shown by facility and grade level,

regarding the frequency and percentage increases, if any, in the

rate of basic pay under that system of nurses employed in the

Veterans Health Administration.

"(2) An assessment of the manner in which that system is being

applied.

"(3) Plans and recommendations of the Secretary for

administrative and legislative improvements or revisions to the

locality pay system.

"(4) An explanation of the reasons for any decision not to

adopt any recommendation in the report referred to in subsection

(a)(2).

"(c) Updated Report. - Not later than February 1, 2000, the

Secretary shall submit to the Committees on Veterans' Affairs of

the Senate and House of Representatives a report updating the

report submitted under subsection (a)(1)."

RATIFICATION OF ACTIONS DURING PERIOD OF EXPIRED AUTHORITY

Any action taken by Secretary of Veterans Affairs before Feb. 13,

1996, under provision of law amended by title I of Pub. L. 104-110

that was taken during period beginning on date on which authority

of Secretary under such provision of law expired and ending on Feb.

13, 1996, considered to have same force and effect as if such

amendment had been in effect at time of that action, see section

103 of Pub. L. 104-110, set out as a note under section 1710 of

this title.

NURSING PERSONNEL QUALIFICATION STANDARDS

Section 305 of Pub. L. 102-585 provided that:

"(a) Revision. - The Secretary of Veterans Affairs shall conduct

a review of the qualification standards used for nursing personnel

at Department health-care facilities and the relationship between

those standards and the compression of nursing personnel in the

existing intermediate and senior grades. Based upon that review,

the Secretary shall revise those qualification standards -

"(1) to reflect the five grade levels for nursing personnel

under the Nurse Schedule [see 38 U.S.C. 7404(b)(1)], as amended

by section 301; and

"(2) to reduce the compression of nursing personnel in the

existing intermediate and senior grades.

"(b) Deadline For Prescribing Standards. - The Secretary shall

prescribe revised qualification standards for nursing personnel

pursuant to subsection (a) not later than six months after the date

of the enactment of this Act [Nov. 4, 1992].

"(c) Report. - The Secretary shall submit to the Committees on

Veterans' Affairs of the Senate and House of Representatives a

report on the Secretary's findings and actions under this section.

The report shall be submitted not later than six months after the

date on which revised qualification standards for nursing personnel

are prescribed pursuant to subsection (b)."

REPORT ON PAY FOR CHIEF NURSE POSITION

Section 306 of Pub. L. 102-585 provided that:

"(a) Review. - The Secretary of Veterans Affairs shall conduct a

review of -

"(1) the process for determining the rate of basic pay

applicable to the Chief Nurse position at Department of Veterans

Affairs health-care facilities; and

"(2) the relationship between the rate of such basic pay and

the rate of basic pay applicable to nurses in positions

subordinate to the Chief Nurse at the respective Department

facilities.

The review shall include an assessment of the adequacy of that

process in determining an equitable pay rate for the Chief Nurse

position, including an assessment of the accuracy of data collected

in the survey process and the difficulties in obtaining accurate

data.

"(b) Report. - The Secretary shall submit to the Committees on

Veterans' Affairs of the Senate and House of Representatives a

report on the review and assessment conducted under subsection (a).

To the extent that the review discloses difficulties in obtaining

accurate data in the survey process with respect to the Chief Nurse

position at Department facilities, the Secretary shall include in

the report recommendations for corrective action. The Secretary

shall also include in the report (1) a listing of the salary

differential (expressed as a percentage) between the Chief Nurse at

a facility and the highest paid nurse (excluding certified

registered nurse anesthetists) serving in a position subordinate to

the Chief Nurse, and (2) an analysis of such data. The report shall

be submitted not later than 12 months after the date of the

enactment of this Act [Nov. 4, 1992]."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7452 of this title; title

5 section 5302.

-FOOTNOTE-

(!1) See References in Text note below.

-End-

-CITE-

38 USC Sec. 7452 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

-HEAD-

Sec. 7452. Nurses and other health-care personnel: administration

of pay

-STATUTE-

(a)(1) 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.

(2) 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.

(3) 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)(1) 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.

(2) 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)(1) 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.

(2) 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.

(3) 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).

(4) 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

-

(A) 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

(B) 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).

(5) 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.

-SOURCE-

(Added Pub. L. 101-366, title I, Sec. 102(b), Aug. 15, 1990, 104

Stat. 435, Sec. 4142; renumbered Sec. 7452 and amended Pub. L.

102-40, title III, Sec. 301(d), title IV, Sec. 401(c)(1)(A), (3),

May 7, 1991, 105 Stat. 208, 238; Pub. L. 102-585, title III, Sec.

304(a), Nov. 4, 1992, 106 Stat. 4952.)

-REFTEXT-

REFERENCES IN TEXT

Section 7451(g) of this title, referred to in subsecs. (b)(2) and

(e), was repealed and subsec. (h) of section 7451 was redesignated

(g) by Pub. L. 106-419, title II, Sec. 201(a)(4), Nov. 1, 2000, 114

Stat. 1840.

-MISC1-

AMENDMENTS

1992 - Subsec. (e). Pub. L. 102-585 inserted before period at end

", 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) of this title,

provide justification for doing so".

1991 - Pub. L. 102-40, Sec. 401(c)(1)(A), renumbered section 4142

of this title as this section.

Subsec. (a)(1). Pub. L. 102-40, Sec. 401(c)(3)(A)(i), substituted

"7451(a)" for "4141(a)".

Subsec. (a)(2). Pub. L. 102-40, Sec. 401(c)(3)(A)(ii),

substituted "7451(c)(1)" for "4141(c)(1)".

Subsec. (a)(3). Pub. L. 102-40, Sec. 301(d), substituted "paid"

for "appointed".

Subsec. (b)(2). Pub. L. 102-40, Sec. 401(c)(3)(B), substituted

"7451(g)" for "4141(g)".

Subsec. (c)(1). Pub. L. 102-40, Sec. 401(c)(3)(C), substituted

"7401(1)" for "4104(1)".

Subsec. (e). Pub. L. 102-40, Sec. 401(c)(3)(C), substituted

"7401(1)" for "4104(1)".

Subsec. (f). Pub. L. 102-40, Sec. 401(c)(3)(D), substituted

"7451" for "4141".

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by Pub. L. 102-585 effective with respect to first pay

period beginning on or after end of six-month period beginning on

Nov. 4, 1992, see section 308 of Pub. L. 102-585, set out as a note

under section 7404 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7451 of this title.

-FOOTNOTE-

(!1) See References in Text note below.

-End-

-CITE-

38 USC Sec. 7453 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

-HEAD-

Sec. 7453. Nurses: additional pay

-STATUTE-

(a) In addition to the rate of basic pay provided for nurses, a

nurse shall receive additional pay as provided by this section.

(b) A nurse performing service on a tour of duty, 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

service on such tour at a rate equal to 10 percent of the nurse's

hourly rate of basic pay if at least four hours of such tour fall

between 6 postmeridian and 6 antemeridian. When less than four

hours of such tour 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 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 for each hour of

service on such tour 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)(1) A nurse performing officially ordered or approved hours of

service in excess of 40 hours in an administrative workweek, or in

excess of eight hours in a day, 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.

(2) For the purposes of this subsection, overtime must be of at

least 15 minutes duration in a day to be creditable for overtime

pay.

(3) 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.

(4) 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.

(5) 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 -

(A) such travel occurs during such nurse's tour of duty; or

(B) such travel -

(i) involves the performance of services while traveling,

(ii) is incident to travel that involves the performance of

services while traveling,

(iii) is carried out under arduous conditions as determined

by the Secretary, or

(iv) 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):

(1) Subchapter VI of chapter 55.

(2) Section 5595.

(3) Chapters 81, 83, 84, and 87.

(j)(1) 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.

(2) An increase under paragraph (1) in rates of additional pay -

(A) 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

(B) 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).

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(4), May 7, 1991, 105

Stat. 232; amended Pub. L. 103-446, title XII, Sec. 1201(e)(24),

(g)(6), Nov. 2, 1994, 108 Stat. 4686, 4687.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4107(e) of this title prior to the repeal of that section

as part of the complete revision of chapter 73 of this title by

Pub. L. 102-40.

AMENDMENTS

1994 - Subsecs. (f), (g). Pub. L. 103-446, Sec. 1201(e)(24),

substituted "subsection (b), (c), (d), or (e)" for "subsections

(b), (c), (d), or (e)".

Subsec. (i)(3). Pub. L. 103-446, Sec. 1201(g)(6), struck out "of

title 5" before period at end.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7454, 7456, 7457 of this

title; title 5 sections 6123, 6128.

-End-

-CITE-

38 USC Sec. 7454 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

-HEAD-

Sec. 7454. Physician assistants and other health care

professionals: additional pay

-STATUTE-

(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)(1) When the Secretary determines it to be necessary in order

to obtain or retain the services of certified or registered

respiratory therapists, licensed physical therapists, licensed

practical or vocational nurses, pharmacists, or occupational

therapists, 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.

(2) 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.

(c) The Secretary shall prescribe by regulation standards for

compensation and payment under this section.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(4), May 7, 1991, 105

Stat. 234; amended Pub. L. 107-135, title I, Sec. 121(a), Jan. 23,

2002, 115 Stat. 2450.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4107(f) of this title prior to the repeal of that section

as part of the complete revision of chapter 73 of this title by

Pub. L. 102-40.

AMENDMENTS

2002 - Subsec. (b). Pub. L. 107-135 designated existing

provisions as par. (1) and added par. (2).

EFFECTIVE DATE OF 2002 AMENDMENT

Pub. L. 107-135, title I, Sec. 121(b), Jan. 23, 2002, 115 Stat.

2450, provided that: "The amendments made by subsection (a)

[amending this section] shall apply with respect to pay periods

beginning on or after the date of the enactment of this Act [Jan.

23, 2002]."

-End-

-CITE-

38 USC Sec. 7455 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

-HEAD-

Sec. 7455. Increases in rates of basic pay

-STATUTE-

(a)(1) 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 -

(A) may be made on a nationwide basis, local basis, or other

geographic basis; and

(B) may be made -

(i) for one or more of the grades listed in the schedules in

subsection (b)(1) of section 7404 of this title;

(ii) for one or more of the health personnel fields within

such grades; or

(iii) for one or more of the grades of the General Schedule

under section 5332 of title 5.

(2) Paragraph (1) applies to the following:

(A) Individuals employed in positions listed in paragraphs (1)

and (3) of section 7401 of this title.

(B) Health-care personnel who -

(i) are employed in the Administration (other than

administrative, clerical, and physical plant maintenance and

protective services employees);

(ii) are paid under the General Schedule pursuant to section

5332 of title 5;

(iii) are determined by the Secretary to be providing either

direct patient-care services or services incident to direct

patient-care services; and

(iv) would not otherwise be available to provide medical care

and treatment for veterans.

(C) 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 -

(1) 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;

(2) to achieve adequate staffing at particular facilities; or

(3) to recruit personnel with specialized skills, especially

those with skills which are especially difficult or demanding.

(c)(1) The amount of any increase under subsection (a) in the

maximum rate for any grade may not (except in the case of nurse

anesthetists, pharmacists, and licensed physical therapists) exceed

by two times the amount by which the maximum for such grade (under

applicable provisions of law other than this subsection) exceeds

the minimum for such grade (under applicable provisions of law

other than this subsection), and the maximum rate as so increased

may not exceed the rate paid for individuals serving as Assistant

Under Secretary for Health.

(2) Whenever the amount of an increase under subsection (a)

results in a rate of basic pay for a position being equal to or

greater than the amount that is 94 percent of the maximum amount

permitted under paragraph (1), the Secretary shall promptly notify

the Committees on Veterans' Affairs of the Senate and House of

Representatives of the increase and the amount thereof.

(d)(1) 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.

(2) 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.

(3) 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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(4), May 7, 1991, 105

Stat. 234; amended Pub. L. 102-83, Sec. 2(c)(7), Aug. 6, 1991, 105

Stat. 402; Pub. L. 102-405, title II, Sec. 201, title III, Sec.

302(c)(1), Oct. 9, 1992, 106 Stat. 1983, 1984; Pub. L. 106-419,

title II, Sec. 203, Nov. 1, 2000, 114 Stat. 1841.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4107(g) of this title prior to the repeal of that section

as part of the complete revision of chapter 73 of this title by

Pub. L. 102-40.

AMENDMENTS

2000 - Subsec. (c)(1). Pub. L. 106-419 inserted ", pharmacists,"

after "anesthetists".

1992 - Subsec. (c). Pub. L. 102-405, Sec. 302(c)(1), substituted

"Under Secretary for Health" for "Chief Medical Director" in par.

(1).

Pub. L. 102-405, Sec. 201, designated existing provisions as par.

(1), inserted "by two times" after first reference to "exceed", and

added par. (2).

1991 - Subsec. (a)(2)(C). Pub. L. 102-83 substituted "902" for

"218".

-EXEC-

EX. ORD. NO. 12797. REVIEW OF INCREASES IN RATES OF BASIC PAY FOR

CERTAIN EMPLOYEES OF DEPARTMENT OF VETERANS AFFAIRS AND OTHER

AGENCIES

Ex. Ord. No. 12797, Apr. 3, 1992, 57 F.R. 11671, provided:

By the authority vested in me as President by the Constitution

and the laws of the United States of America, including section

7455(d)(2)-(3) of title 38, United States Code, in order to

establish procedures for review of proposed increases in the rates

of basic pay of certain employees of the Department of Veterans

Affairs and of other agencies, it is hereby ordered as follows:

Section 1. The Director of the Office of Personnel Management is

designated to exercise the authority vested in the President by

section 7455(d)(2)-(3) of title 38, United States Code, to review

and approve or disapprove the increases in rates of basic pay

proposed by the Secretary of Veterans Affairs and to provide the

appropriate committees of the Congress with a written statement of

the reasons for any such disapproval.

Sec. 2. In exercising this authority, the Director of the Office

of Personnel Management shall assure that any increases in basic

pay proposed by the Secretary of Veterans Affairs are in the best

interest of the Federal Government, do not exceed the amounts

authorized by section 7455, and are made only to:

(1) Provide pay in an amount competitive with, but not exceeding,

the amount of the same type of pay paid to the same category of

health-care personnel at non-Federal health-care facilities in the

same labor market;

(2) Achieve adequate staffing at particular facilities; or

(3) Recruit personnel with specialized skills, especially those

with skills which are especially difficult or demanding.

Sec. 3. The Secretary of Veterans Affairs shall provide to the

Director of the Office of Personnel Management such information as

the Director may request in order to carry out the responsibilities

delegated by this order.

Sec. 4. The Director of the Office of Personnel Management shall

provide the Secretary of Veterans Affairs with a copy of any

written statement provided to the appropriate committees of the

Congress that sets forth the reasons for disapproval of any

proposed increase in rates of basic pay under this order.

Sec. 5. In the case of any other law authorizing another agency

to use the authority provided by section 7455 of title 38, United

States Code, the Director of the Office of Personnel Management

shall exercise the same authority in the same manner as provided

for with respect to section 7455 under sections 1 through 4 of this

order, and the head of such other agency shall provide information

requested by the Director as provided for in section 3 of this

order.

Sec. 6. Executive Order No. 12438 of August 23, 1983, is revoked.

Sec. 7. This order shall be effective upon publication in the

Federal Register.

George Bush.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 902, 7457, 7612 of this

title.

-End-

-CITE-

38 USC Sec. 7456 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

-HEAD-

Sec. 7456. Nurses: special rules for weekend duty

-STATUTE-

(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)(1) 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).

(2) 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.

(3)(A) 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.

(B) 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.

(C) 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) A nurse described in subsection (b)(1) who is absent on

approved sick leave or annual leave during a regularly scheduled

12-hour tour of duty shall be charged for such leave at a rate of

five hours of leave for three hours of absence.

(d) The Secretary shall prescribe regulations for the

implementation of this section.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(4), May 7, 1991, 105

Stat. 235.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4107(h) of this title prior to the repeal of that section

as part of the complete revision of chapter 73 of this title by

Pub. L. 102-40.

-End-

-CITE-

38 USC Sec. 7457 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

-HEAD-

Sec. 7457. On-call pay

-STATUTE-

(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:

(1) 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.

(2) The employee is employed in a work unit for which on-call

premium pay is authorized.

(3) 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 -

(1) 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

(2) the rate of pay which such employee is entitled to receive

including on-call premium pay described in subsection (a).

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(4), May 7, 1991, 105

Stat. 236.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4107(j) of this title prior to the repeal of that section

as part of the complete revision of chapter 73 of this title by

Pub. L. 102-40.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7404 of this title.

-End-

-CITE-

38 USC Sec. 7458 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER IV - PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL

-HEAD-

Sec. 7458. Recruitment and retention bonus pay

-STATUTE-

(a)(1) 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.

(2) 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)(1) 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 -

(A) $2,000 per year, in the case of an agreement for two years,

(B) $3,000 per year, in the case of an agreement for three

years, and

(C) $4,000 per year, in the case of an agreement for four

years.

(2) In the case of an agreement for employment on less than a

full-time basis, the amount of bonus pay shall be pro rated (!1)

accordingly.

(c)(1) 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.

(2)(A) 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.

(B) 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)(1) A bonus paid to any individual under this section shall be

in addition to any pay or allowance to which the individual is

entitled.

(2) 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)(1) 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.

(2) 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.

(3) An obligation to refund any portion of a bonus payment under

this subsection is, for all purposes, a debt owed to the United

States.

(4) 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.

-SOURCE-

(Added Pub. L. 100-322, title II, Sec. 212(a)[(1)], May 20, 1988,

102 Stat. 514, Sec. 4120; renumbered Sec. 7458 and amended Pub. L.

102-40, title IV, Sec. 401(c)(4), May 7, 1991, 105 Stat. 238; Pub.

L. 102-83, Sec. 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105

Stat. 404, 405; Pub. L. 102-405, title III, Sec. 302(c)(1), Oct. 9,

1992, 106 Stat. 1984; Pub. L. 103-446, title XII, Sec. 1201(h)(4),

Nov. 2, 1994, 108 Stat. 4688.)

-MISC1-

AMENDMENTS

1994 - Pub. L. 103-446 substituted "Recruitment and retention

bonus pay" for "Recruitment and retention bonus pay for nurses and

certain other health-care personnel" as section catchline.

1992 - Subsec. (e). Pub. L. 102-405 substituted "Under Secretary

for Health" for "Chief Medical Director".

1991 - Pub. L. 102-40 renumbered section 4120 of this title as

this section.

Subsec. (a). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted

"Secretary" for "Administrator" wherever appearing.

Pub. L. 102-83, Sec. 4(a)(3), (4), substituted "Department" for

"Veterans' Administration" wherever appearing.

Subsecs. (b)(1), (c)(2), (e). Pub. L. 102-83, Sec. 4(b)(1),

(2)(E), substituted "Secretary" for "Administrator" wherever

appearing.

Subsec. (f). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted

"Secretary" for "Administrator" in two places and "Secretary's" for

"Administrator's".

Pub. L. 102-40 substituted "subchapter III" for "section 4118 of

this title".

Subsecs. (g)(1), (2), (h). Pub. L. 102-83, Sec. 4(b)(1), (2)(E),

substituted "Secretary" for "Administrator".

-FOOTNOTE-

(!1) So in original.

-End-

-CITE-

38 USC SUBCHAPTER V - DISCIPLINARY AND GRIEVANCE

PROCEDURES 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER V - DISCIPLINARY AND GRIEVANCE PROCEDURES

-HEAD-

SUBCHAPTER V - DISCIPLINARY AND GRIEVANCE PROCEDURES

-End-

-CITE-

38 USC Sec. 7461 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER V - DISCIPLINARY AND GRIEVANCE PROCEDURES

-HEAD-

Sec. 7461. Adverse actions: section 7401(1) employees

-STATUTE-

(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)(1) 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.

(2) In any other case, such an appeal shall be made -

(A) through Department grievance procedures under section 7463

of this title, in any case that involves or includes a question

of professional conduct or competence in which a major adverse

action was not taken or in any case of an employee who is not

covered by a collective bargaining agreement under chapter 71 of

title 5; or

(B) through grievance procedures provided through collective

bargaining under chapter 71 of title 5 or through Department

grievance procedures under section 7463 of this title, as the

employee elects, in the case of an employee covered by a

collective bargaining agreement under chapter 71 of title 5 that

does not involve or include a question of professional conduct or

competence.

(c) For purposes of this subchapter -

(1) 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

interns and residents appointed pursuant to section 7406 of this

title).

(2) A major adverse action is an adverse action which includes

any of the following:

(A) Suspension.

(B) Transfer.

(C) Reduction in grade.

(D) Reduction in basic pay.

(E) Discharge.

(3) A question of professional conduct or competence is a

question involving any of the following:

(A) Direct patient care.

(B) 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.

-SOURCE-

(Added Pub. L. 102-40, title II, Sec. 203(a), May 7, 1991, 105

Stat. 202; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct.

9, 1992, 106 Stat. 1984.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4110 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1992 - Subsec. (a). Pub. L. 102-405 substituted "Under Secretary

for Health" for "Chief Medical Director" in two places.

REGULATIONS

Section 204 of Pub. L. 102-40 provided that: "The Secretary of

Veterans Affairs shall prescribe regulations under subchapter V of

chapter 74 of title 38, United States Code (as added by section

203), not later than 180 days after the date of the enactment of

this Act [May 7, 1991]. Such regulations shall be published in the

Federal Register for notice-and-comment not less than 30 days

before the day on which they take effect."

-End-

-CITE-

38 USC Sec. 7462 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER V - DISCIPLINARY AND GRIEVANCE PROCEDURES

-HEAD-

Sec. 7462. Major adverse actions involving professional conduct or

competence

-STATUTE-

(a)(1) Disciplinary Appeals Boards appointed under section 7464

of this title shall have exclusive jurisdiction to review any case

-

(A) which arises out of (or which includes) a question of

professional conduct or competence of a section 7401(1) employee;

and

(B) in which a major adverse action was taken.

(2) 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.

(3) 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)(1) 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 to the following:

(A) At least 30 days 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, and a statement of any

specific law, regulation, policy, procedure, practice, or other

specific instruction that has been violated with respect to 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.

(B) A reasonable time, but not less than seven days, 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.

(2) 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.

(3)(A) If a proposed adverse action covered by this section is

not withdrawn, the deciding official shall render a decision in

writing within 21 days of receipt by the deciding official of the

employee's answer. The decision shall include a statement of the

specific reasons for the decision with respect to each charge. If a

major adverse action is imposed, the decision shall state whether

any of the charges sustained arose out of a question of

professional conduct or competence. If any of the charges are

sustained, the notice of the decision to the employee shall include

notice of the employee's rights of appeal.

(B) Notwithstanding the 21-day period specified in subparagraph

(A), a proposed adverse action may be held in abeyance if the

employee requests, and the deciding official agrees, that the

employee shall seek counseling or treatment for a condition covered

under the Rehabilitation Act of 1973. Any such abeyance of a

proposed action may not extend for more than one year.

(4)(A) The Secretary may require that any answer and submission

under paragraph (1)(B) be submitted so as to be received within 30

days of the date of the written notice of the charges, except that

the Secretary shall allow the granting of extensions for good cause

shown.

(B) 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 30 days after the date of service of the

written decision on the employee.

(c)(1) 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.

(2) 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 -

(A) approve the action as imposed;

(B) approve the action with modification, reduction, or

exception; or

(C) reverse the action.

(3) 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.

(4) 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)(1) 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.

(2) If the Secretary finds a decision of the board to be clearly

contrary to the evidence or unlawful, the Secretary may -

(A) reverse the decision of the board, or

(B) vacate the decision of the board and remand the matter to

the Board for further consideration.

(3) 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.

(4) 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)(1) 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.

(2) 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 -

(A) arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law;

(B) obtained without procedures required by law, rule, or

regulation having been followed; or

(C) unsupported by substantial evidence.

-SOURCE-

(Added Pub. L. 102-40, title II, Sec. 203(a), May 7, 1991, 105

Stat. 203; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct.

9, 1992, 106 Stat. 1984.)

-REFTEXT-

REFERENCES IN TEXT

The Rehabilitation Act of 1973, referred to in subsec. (b)(3)(B),

is Pub. L. 93-112, Sept. 26, 1973, 87 Stat. 355, as amended, which

is classified generally to chapter 16 (Sec. 701 et seq.) of Title

29, Labor. For complete classification of this Act to the Code, see

Short Title note set out under section 701 of Title 29 and Tables.

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4110 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1992 - Subsec. (b)(1). Pub. L. 102-405 substituted "Under

Secretary for Health" for "Chief Medical Director" in subpars. (A)

and (B).

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7461, 7463, 7464 of this

title.

-End-

-CITE-

38 USC Sec. 7463 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER V - DISCIPLINARY AND GRIEVANCE PROCEDURES

-HEAD-

Sec. 7463. Other adverse actions

-STATUTE-

(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 -

(1) is not a major adverse action; or

(2) 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)(1) 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 the same notice and opportunity to answer

with respect to those charges as provided in subparagraphs (A) and

(B) of section 7462(b)(1) of this title.

(2) In any other case in which charges are brought against a

section 7401(1) employee, the employee is entitled to -

(A) an advance written notice stating the specific reason for

the proposed action, and

(B) a reasonable time to answer orally and in writing and to

furnish affidavits and other documentary evidence in support of

the answer.

(d) Grievance procedures prescribed under subsection (a) shall

include the following:

(1) 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.

(2) A right to a prompt report of the findings and

recommendations by the impartial examiner.

(3) 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.

-SOURCE-

(Added Pub. L. 102-40, title II, Sec. 203(a), May 7, 1991, 105

Stat. 205.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4110 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7461, 7464 of this title.

-End-

-CITE-

38 USC Sec. 7464 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER V - DISCIPLINARY AND GRIEVANCE PROCEDURES

-HEAD-

Sec. 7464. Disciplinary Appeals Boards

-STATUTE-

(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)(1) 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.

(2) 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)(1) 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.

(2) 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 $5,000 in the case of a first offense and not more than

$20,000 in the case of a subsequent offense.

(d)(1) 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.

(2) 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.

(3) 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.

-SOURCE-

(Added Pub. L. 102-40, title II, Sec. 203(a), May 7, 1991, 105

Stat. 206.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this subchapter were contained in

section 4110 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7462, 7463 of this title.

-End-

-CITE-

38 USC SUBCHAPTER VI - REGIONAL MEDICAL EDUCATION CENTERS 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER VI - REGIONAL MEDICAL EDUCATION CENTERS

-HEAD-

SUBCHAPTER VI - REGIONAL MEDICAL EDUCATION CENTERS

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in sections 7320, 7325 of this

title.

-End-

-CITE-

38 USC Sec. 7471 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER VI - REGIONAL MEDICAL EDUCATION CENTERS

-HEAD-

Sec. 7471. Designation of Regional Medical Education Centers

-STATUTE-

(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:

(1) The teaching of newly developed medical skills and the use

of newly developed medical technologies and equipment.

(2) Advanced clinical instruction.

(3) The opportunity for conducting clinical investigations.

(4) Clinical demonstrations in the use of new types of health

personnel and in the better use of the skills of existing health

personnel.

(5) Routine verification of basic medical skills and, where

determined necessary, remediation of any deficiency in such

skills.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(5), May 7, 1991, 105

Stat. 237.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4121 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7362 of this title.

-End-

-CITE-

38 USC Sec. 7472 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER VI - REGIONAL MEDICAL EDUCATION CENTERS

-HEAD-

Sec. 7472. Supervision and staffing of Centers

-STATUTE-

(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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(5), May 7, 1991, 105

Stat. 237; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct.

9, 1992, 106 Stat. 1984.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4122 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1992 - Pub. L. 102-405 substituted "Under Secretary for Health"

for "Chief Medical Director" wherever appearing.

-End-

-CITE-

38 USC Sec. 7473 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER VI - REGIONAL MEDICAL EDUCATION CENTERS

-HEAD-

Sec. 7473. Personnel eligible for training

-STATUTE-

(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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(5), May 7, 1991, 105

Stat. 237; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct.

9, 1992, 106 Stat. 1984.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4123 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1992 - Pub. L. 102-405 substituted "Under Secretary for Health"

for "Chief Medical Director" in subsecs. (a) and (b).

-End-

-CITE-

38 USC Sec. 7474 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

CHAPTER 74 - VETERANS HEALTH ADMINISTRATION - PERSONNEL

SUBCHAPTER VI - REGIONAL MEDICAL EDUCATION CENTERS

-HEAD-

Sec. 7474. Consultation

-STATUTE-

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.

-SOURCE-

(Added Pub. L. 102-40, title IV, Sec. 401(b)(5), May 7, 1991, 105

Stat. 238; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct.

9, 1992, 106 Stat. 1984.)

-MISC1-

PRIOR PROVISIONS

Provisions similar to those in this section were contained in

section 4124 of this title prior to the repeal of that section as

part of the complete revision of chapter 73 of this title by Pub.

L. 102-40.

AMENDMENTS

1992 - Pub. L. 102-405 substituted "Under Secretary for Health"

for "Chief Medical Director".

-End-

-CITE-

38 USC [CHAPTER 75 - RENUMBERED] 01/06/03

-EXPCITE-

TITLE 38 - VETERANS' BENEFITS

PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

[CHAPTER 75 - RENUMBERED]

-HEAD-

[CHAPTER 75 - RENUMBERED]

-COD-

CODIFICATION

Former chapter 75 which consisted of sections 4201 to 4210 was

renumbered chapter 78 of this title and transferred to follow

chapter 76 of this title, and sections 4201 to 4210 were renumbered

sections 7801 to 7810 of this title, respectively.

-End-