[USC02] 38 USC PART V, CHAPTER 74, SUBCHAPTER IV: PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL
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38 USC PART V, CHAPTER 74, SUBCHAPTER IV: PAY FOR NURSES AND OTHER HEALTH-CARE PERSONNEL
From Title 38—VETERANS' BENEFITSPART V—BOARDS, ADMINISTRATIONS, AND SERVICESCHAPTER 74—VETERANS HEALTH ADMINISTRATION-PERSONNEL

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

§7451. Nurses and other health-care personnel: competitive pay

(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) Physician assistant.

(C) Such positions referred to in paragraphs (1) and (3) of section 7401 of this title (other than the positions of physician, dentist, registered nurse, and physician assistant) 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 IV of the Executive Schedule under section 5316 1 of title 5. The maximum rate of basic pay for a grade for the position of certified registered nurse anesthetist pursuant to an adjustment under subsection (d) may exceed the maximum rate otherwise provided in the preceding sentence.

(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.

(F) The Under Secretary for Health shall provide appropriate education, training, and support to directors of Department health care facilities in the conduct and use of surveys, including the use of third-party surveys, under this paragraph.

(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 conducts such a wage survey during the period covered by the report and makes adjustment in rates of basic pay applicable to one or more covered positions at the facility, information on the methodology used in making such adjustment or adjustments.

(E) 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).


(6)(A) Upon the request of an individual described in subparagraph (B) for a report provided under paragraph (4) with respect to a Department health-care facility, the Under Secretary for Health or the director of such facility shall provide to the individual the most current report for such facility provided under such paragraph.

(B) An individual described in this subparagraph is—

(i) an individual in a covered position at a Department health-care facility; or

(ii) a representative of the labor organization representing that individual who is designated by that individual to make the request.


(f) For the purposes of this section, the term "health-care facility" means a medical center, an independent outpatient clinic, or an independent domiciliary facility.

(Added Pub. L. 101–366, title I, §102(b), Aug. 15, 1990, 104 Stat. 431, §4141; renumbered §7451 and amended Pub. L. 102–40, title III, §301(b), (c), title IV, §401(c)(1)(A), (2), May 7, 1991, 105 Stat. 208, 238; Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 102–585, title III, §§301(b)–303, 304(b), 307, Nov. 4, 1992, 106 Stat. 4951–4953; Pub. L. 103–446, title XII, §1201(c)(7), (e)(23), Nov. 2, 1994, 108 Stat. 4684, 4686; Pub. L. 104–110, title I, §101(i), Feb. 13, 1996, 110 Stat. 768; Pub. L. 106–419, title II, §201(a), Nov. 1, 2000, 114 Stat. 1838; Pub. L. 107–135, title I, §133, Jan. 23, 2002, 115 Stat. 2454; Pub. L. 111–163, title V, §501(a), title VI, §601(g), (h), (j), May 5, 2010, 124 Stat. 1157, 1170; Pub. L. 115–46, title II, §212, Aug. 12, 2017, 131 Stat. 967.)

References in Text

Subsection (g), referred to in subsec. (c)(1), was repealed and subsec. (h), which did not relate to annual reports, was redesignated (g) by Pub. L. 106–419, title II, §201(a)(4), Nov. 1, 2000, 114 Stat. 1840.

Level IV of the Executive Schedule, referred to in subsec. (c)(2), is set out in section 5315 of Title 5, Government Organization and Employees.

The General Schedule, referred to in subsec. (d)(1)(A), is set out under section 5332 of Title 5, Government Organization and Employees.

Amendments

2017—Subsec. (a)(2)(B), (C). Pub. L. 115–46 added subpar. (B), redesignated former subpar. (B) as (C), and, in subpar. (C), substituted "registered nurse, and physician assistant" for "and registered nurse".

2010—Subsec. (c)(2). Pub. L. 111–163, §601(g), (h), substituted "level IV" for "level V" and inserted at end "The maximum rate of basic pay for a grade for the position of certified registered nurse anesthetist pursuant to an adjustment under subsection (d) may exceed the maximum rate otherwise provided in the preceding sentence."

Subsec. (d)(3)(F). Pub. L. 111–163, §601(j)(1), added subpar. (F).

Subsec. (e)(4)(D), (E). Pub. L. 111–163, §601(j)(2), added subpar. (D) and redesignated former subpar. (D) as (E).

Subsec. (e)(6). Pub. L. 111–163, §601(j)(3), added par. (6).

Subsecs. (f), (g). Pub. L. 111–163, §501(a), redesignated subsec. (g) as (f) and struck out former subsec. (f) which read as follows: "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."

2002—Subsec. (d)(3)(A). Pub. L. 107–135, §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, §133(1)(B), struck out "beginning rates of" before "compensation for corresponding health-care professionals".

Subsec. (d)(3)(C)(i). Pub. L. 107–135, §133(1)(C), struck out "beginning rates of" before "compensation" in introductory provisions and in subcl. (I).

Subsec. (d)(4). Pub. L. 107–135, §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, §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, §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, §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, §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, §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, §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, §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, §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, §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, §1201(e)(23), substituted "labor-market area" for "labor market area".

Subsec. (g)(1). Pub. L. 103–446, §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, §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, §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, §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, §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, §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, §304(b), added par. (9).

Subsec. (g)(10). Pub. L. 102–585, §307, added par. (10).

1991Pub. L. 102–40, §401(c)(1)(A), renumbered section 4141 of this title as this section.

Subsec. (a)(2)(B). Pub. L. 102–40, §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, §§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, §401(c)(2)(A)(iii), substituted "7452" for "4142".

Subsec. (b). Pub. L. 102–40, §401(c)(2)(B), substituted "7401(1)" for "4104(1)" and "7404(b)" for "4107(b)".

Subsec. (d)(1)(B). Pub. L. 102–40, §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, §301(b)(2)(B), added subpar. (C). Former subpar. (C) redesignated (D).

Subsec. (d)(3)(D). Pub. L. 102–40, §301(b)(2)(A), redesignated subpar. (C) as (D) and inserted "or Chief Medical Director" after "facility".

Subsec. (d)(4). Pub. L. 102–40, §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, §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, §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

Pub. L. 102–40, title III, §301(a), May 7, 1991, 105 Stat. 208, 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)."

Pilot Program To Study Innovative Recruitment Tools To Address Nursing Shortages at Department of Veterans Affairs Health Care Facilities

Pub. L. 108–422, title V, §501, Nov. 30, 2004, 118 Stat. 2395, required the Secretary of Veterans Affairs, not later than 90 days after Nov. 30, 2004, to designate a health care service region, or a section within such a region, in which health care facilities of the Department of Veterans Affairs were adversely affected by a shortage of qualified nurses, to conduct a pilot program in the region to determine the effectiveness of the use of innovative human capital tools and techniques in the recruitment and retention of qualified nurses for positions at these Department health care facilities, and, not later than one year after Nov. 30, 2004, to submit to Congress a report on the extent to which the pilot program achieved its goals.

Report on Requests for Waivers of Pay Reductions for Reemployed Annuitants To Fill Nurse Positions

Pub. L. 107–135, title I, §103, Jan. 23, 2002, 115 Stat. 2450, required the Secretary of Veterans Affairs to submit to Congress not later than March 28 of 2002 and 2003 a report on requests, made during the fiscal year preceding such report, for waivers of pay reductions for reemployed annuitants to fill nurse positions.

National Commission on VA Nursing

Pub. L. 107–135, title I, subtitle D (§§141–146), Jan. 23, 2002, 115 Stat. 2454, established in the Department of Veterans Affairs the "National Commission on VA Nursing", directed the Commission, not later than two years after its first meeting, to report to Congress on legislative and organizational policy changes to enhance the recruitment and retention of nurses and other nursing personnel by the Department and the future of the nursing profession within the Department, and provided for the termination of the Commission 90 days after the date of the submission of its report.

Report on Nurse Locality Pay

Pub. L. 105–368, title IX, §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

Pub. L. 102–585, title III, §305, Nov. 4, 1992, 106 Stat. 4952, 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

Pub. L. 102–585, title III, §306, Nov. 4, 1992, 106 Stat. 4952, required the Secretary of Veterans Affairs to conduct a review of the process for determining the rate of basic pay applicable to the Chief Nurse position at Department of Veterans Affairs health-care facilities and 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, including an assessment of the adequacy of the process in determining an equitable pay rate for the Chief Nurse position, with a report to be submitted to Congress not later than 12 months after Nov. 4, 1992.

1 See References in Text note below.

§7452. Nurses and other health-care personnel: administration of pay

(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.

(g)(1) In order to recruit and retain highly qualified Department nurse executives, the Secretary may, in accordance with regulations prescribed by the Secretary, pay special pay to the nurse executive at each location as follows:

(A) Each Department health care facility.

(B) The Central Office.


(2) The amount of special pay paid to a nurse executive under paragraph (1) shall be not less than $10,000 or more than $100,000.

(3) The amount of special pay paid to a nurse executive under paragraph (1) shall be based on factors such as the grade of the nurse executive position, the scope and complexity of the nurse executive position, the personal qualifications of the nurse executive, the characteristics of the health care facility concerned, the nature and number of specialty care units at the health care facility concerned, demonstrated difficulties in recruitment and retention of nurse executives at the health care facility concerned, and such other factors as the Secretary considers appropriate.

(4) Special pay paid to a nurse executive under paragraph (1) shall be in addition to any other pay (including basic pay) and allowances to which the nurse executive is entitled, and shall be considered pay for all purposes, including retirement benefits under chapters 83 and 84 of title 5, and other benefits, but shall not be considered basic pay for purposes of adverse actions under subchapter V of this chapter.

(Added Pub. L. 101–366, title I, §102(b), Aug. 15, 1990, 104 Stat. 435, §4142; renumbered §7452 and amended Pub. L. 102–40, title III, §301(d), title IV, §401(c)(1)(A), (3), May 7, 1991, 105 Stat. 208, 238; Pub. L. 102–585, title III, §304(a), Nov. 4, 1992, 106 Stat. 4952; Pub. L. 108–445, §5, Dec. 3, 2004, 118 Stat. 2645; Pub. L. 111–163, title VI, §601(i), May 5, 2010, 124 Stat. 1170.)

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, §201(a)(4), Nov. 1, 2000, 114 Stat. 1840.

Amendments

2010—Subsec. (g)(2). Pub. L. 111–163 substituted "$100,000" for "$25,000".

2004—Subsec. (g). Pub. L. 108–445 added subsec. (g).

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".

1991Pub. L. 102–40, §401(c)(1)(A), renumbered section 4142 of this title as this section.

Subsec. (a)(1). Pub. L. 102–40, §401(c)(3)(A)(i), substituted "7451(a)" for "4141(a)".

Subsec. (a)(2). Pub. L. 102–40, §401(c)(3)(A)(ii), substituted "7451(c)(1)" for "4141(c)(1)".

Subsec. (a)(3). Pub. L. 102–40, §301(d), substituted "paid" for "appointed".

Subsec. (b)(2). Pub. L. 102–40, §401(c)(3)(B), substituted "7451(g)" for "4141(g)".

Subsec. (c)(1). Pub. L. 102–40, §401(c)(3)(C), substituted "7401(1)" for "4104(1)".

Subsec. (e). Pub. L. 102–40, §401(c)(3)(C), substituted "7401(1)" for "4104(1)".

Subsec. (f). Pub. L. 102–40, §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.

1 See References in Text note below.

§7453. Nurses: additional pay

(a) In addition to the rate of basic pay provided for nurses, a full-time nurse or part-time nurse shall receive additional pay as provided by this section.

(b) A nurse performing service, any part of which is within the period commencing at 6 postmeridian and ending at 6 antemeridian, shall receive additional pay for each hour of such service at a rate equal to 10 percent of the nurse's hourly rate of basic pay if at least four hours of such service fall between 6 postmeridian and 6 antemeridian. When less than four hours of such service fall between 6 postmeridian and 6 antemeridian, the nurse shall be paid the differential for each hour of service performed between those hours.

(c) A nurse performing service, any part of which is within the period commencing at midnight Friday and ending at midnight Sunday, shall receive additional pay for each hour of such service at a rate equal to 25 percent of such nurse's hourly rate of basic pay.

(d) A nurse performing service on a holiday designated by Federal statute or Executive order shall receive for each hour of such service the nurse's hourly rate of basic pay, plus additional pay at a rate equal to such hourly rate of basic pay, for that holiday service, including overtime service. Any service required to be performed by a nurse on such a designated holiday shall be deemed to be a minimum of two hours in duration.

(e)(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 consecutive hours, shall receive overtime pay for each hour of such additional service. The overtime rates shall be one and one-half times such nurse's hourly rate of basic pay.

(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 period of service; 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).

(Added Pub. L. 102–40, title IV, §401(b)(4), May 7, 1991, 105 Stat. 232; amended Pub. L. 103–446, title XII, §1201(e)(24), (g)(6), Nov. 2, 1994, 108 Stat. 4686, 4687; Pub. L. 111–163, title VI, §601(k)(1), May 5, 2010, 124 Stat. 1171.)

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

2010—Subsec. (a). Pub. L. 111–163, §601(k)(1)(A), substituted "a full-time nurse or part-time nurse" for "a nurse".

Subsec. (b). Pub. L. 111–163, §601(k)(1)(B), struck out "on a tour of duty" after "performing service" and substituted "hour of such service" for "hour of service on such tour", "at least four hours of such service" for "at least four hours of such tour", and "less than four hours of such service" for "less than four hours of such tour".

Subsec. (c). Pub. L. 111–163, §601(k)(1)(C), struck out "on a tour of duty" after "performing service" and substituted "such service" for "service on such tour".

Subsec. (e)(1). Pub. L. 111–163, §601(k)(1)(D)(i), substituted "eight consecutive hours" for "eight hours in a day".

Subsec. (e)(5)(A). Pub. L. 111–163, §601(k)(1)(D)(ii), substituted "period of service" for "tour of duty".

1994—Subsecs. (f), (g). Pub. L. 103–446, §1201(e)(24), substituted "subsection (b), (c), (d), or (e)" for "subsections (b), (c), (d), or (e)".

Subsec. (i)(3). Pub. L. 103–446, §1201(g)(6), struck out "of title 5" before period at end.

§7454. Physician assistants and other health care professionals: additional pay

(a) Physician assistants and expanded-function dental auxiliaries shall be entitled to additional pay on the same basis as provided for nurses in section 7453 of this title.

(b)(1) When the Secretary determines it to be necessary in order to obtain or retain the services of individuals in positions listed in section 7401(3) of this title, the Secretary may, on a nationwide, local, or other geographic basis, pay persons employed in such positions additional pay on the same basis as provided for nurses in section 7453 of this title.

(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.

(3) Employees appointed under section 7408 of this title performing service on a tour of duty, any part of which is within the period commencing at midnight Friday and ending at midnight Sunday, shall receive additional pay in addition to the rate of basic pay provided such employees for each hour of service on such tour at a rate equal to 25 percent of such employee's hourly rate of basic pay.

(c) The Secretary shall prescribe by regulation standards for compensation and payment under this section.

(Added Pub. L. 102–40, title IV, §401(b)(4), May 7, 1991, 105 Stat. 234; amended Pub. L. 107–135, title I, §121(a), Jan. 23, 2002, 115 Stat. 2450; Pub. L. 108–170, title III, §§301(d), 303(a), Dec. 6, 2003, 117 Stat. 2057, 2058; Pub. L. 111–163, title VI, §601(k)(2), May 5, 2010, 124 Stat. 1171.)

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

2010—Subsec. (b)(3). Pub. L. 111–163 amended par. (3) generally. Prior to amendment, par. (3) read as follows: "Employees appointed under section 7408 of this title shall be entitled to additional pay on the same basis as provided for nurses in section 7453(c) of this title."

2003—Subsec. (b)(1). Pub. L. 108–170, §301(d), substituted "individuals in positions listed in section 7401(3) of this title," for "certified or registered respiratory therapists, licensed physical therapists, licensed practical or vocational nurses, pharmacists, or occupational therapists,".

Subsec. (b)(3). Pub. L. 108–170, §303(a), added par. (3).

2002—Subsec. (b). Pub. L. 107–135 designated existing provisions as par. (1) and added par. (2).

Effective Date of 2003 Amendment

Pub. L. 108–170, title III, §303(b), Dec. 6, 2003, 117 Stat. 2058, provided that: "The amendment made by subsection (a) [amending this section] shall take effect with respect to the first pay period beginning on or after January 1, 2004."

Effective Date of 2002 Amendment

Pub. L. 107–135, title I, §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]."

§7455. Increases in rates of basic pay

(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) Subject to paragraph (2), the amount of any increase under subsection (a) in the minimum rate for any grade may not (except in the case of nurse anesthetists, licensed practical nurses, licensed vocational nurses, nursing positions otherwise covered by title 5, pharmacists, and licensed physical therapists) exceed the maximum rate of basic pay (excluding any locality-based comparability payment under section 5304 of title 5 or similar provision of law) for the grade or level by more than 30 percent.

(2) No rate may be established under this section in excess of the rate of basic pay payable for level IV of the Executive Schedule.

(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.

(Added Pub. L. 102–40, title IV, §401(b)(4), May 7, 1991, 105 Stat. 234; amended Pub. L. 102–83, §2(c)(7), Aug. 6, 1991, 105 Stat. 402; Pub. L. 102–405, title II, §201, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1983, 1984; Pub. L. 106–419, title II, §203, Nov. 1, 2000, 114 Stat. 1841; Pub. L. 111–163, title VI, §601(l), May 5, 2010, 124 Stat. 1172.)

References in Text

Level IV of the Executive Schedule, referred to in subsec. (c)(2), is set out in section 5315 of Title 5, Government Organization and Employees.

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

2010—Subsec. (c). Pub. L. 111–163 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows:

"(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."

2000—Subsec. (c)(1). Pub. L. 106–419 inserted ", pharmacists," after "anesthetists".

1992—Subsec. (c). Pub. L. 102–405, §302(c)(1), substituted "Under Secretary for Health" for "Chief Medical Director" in par. (1).

Pub. L. 102–405, §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".

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.      

§7456. Nurses: special rules for weekend duty

(a) Subject to subsection (b), if the Secretary determines it to be necessary in order to obtain or retain the services of nurses at any Department health-care facility, the Secretary may provide, in the case of nurses appointed under this chapter and employed at such facility, that such nurses who work two regularly scheduled 12-hour tours of duty within the period commencing at midnight Friday and ending at midnight the following Sunday shall be considered for all purposes (except computation of full-time equivalent employees for the purposes of determining compliance with personnel ceilings) to have worked a full 40-hour basic workweek.

(b)(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) The Secretary shall prescribe regulations for the implementation of this section.

(Added Pub. L. 102–40, title IV, §401(b)(4), May 7, 1991, 105 Stat. 235; amended Pub. L. 111–163, title VI, §602(b), May 5, 2010, 124 Stat. 1173.)

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.

Amendments

2010—Subsecs. (c), (d). Pub. L. 111–163 redesignated subsec. (d) as (c) and struck out former subsec. (c) which read as follows: "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."

§7456A. Nurses: alternate work schedules

(a) Applicability.—This section applies to registered nurses appointed under this chapter.

(b) 72/80 Work Schedule.—(1)(A) Subject to paragraph (2), if the Secretary determines it to be necessary in order to obtain or retain the services of registered nurses at any Department health-care facility, the Secretary may provide, in the case of nurses employed at such facility, that such nurses who work six regularly scheduled 12-hour tours of duty within a 14-day period shall be considered for all purposes to have worked a full 80-hour pay period.

(B) A nurse who works under the authority in subparagraph (A) shall be considered a 0.90 full-time equivalent employee in computing full-time equivalent employees for the purposes of determining compliance with personnel ceilings.

(2)(A) Basic and additional pay for a nurse who is considered under paragraph (1) to have worked a full 80-hour pay period shall be subject to subparagraphs (B) and (C).

(B) The hourly rate of basic pay for a nurse covered by this paragraph for service performed as part of a regularly scheduled 36-hour tour of duty within the work week shall be derived by dividing the nurse's annual rate of basic pay by 1,872.

(C) The Secretary shall pay overtime pay to a nurse covered by this paragraph who—

(i) performs a period of service in excess of such nurse's regularly scheduled 36-hour tour of duty within an administrative work week;

(ii) for officially ordered or approved service, performs a period of service in excess of 8 hours on a day other than a day on which such nurse's regularly scheduled 12-hour tour of duty falls;

(iii) performs a period of service in excess of 12 hours for any day included in the regularly scheduled 36-hour tour of duty work week; or

(iv) performs a period of service in excess of 40 hours during an administrative work week.


(D) The Secretary may provide a nurse to whom this subsection applies with additional pay under section 7453 of this title for any period included in a regularly scheduled 12-hour tour of duty.

(3) A nurse who works a work schedule described in this subsection who is absent on approved sick leave or annual leave during a scheduled 12-hour tour of duty shall be charged for such leave at a rate of ten hours of leave for every nine hours of absence.

(c) Holiday Pay.—A nurse working a work schedule under subsection (b) that includes a holiday designated by law or Executive order shall be eligible for holiday pay under section 7453(d) of this title for any service performed by the nurse on such holiday under such section.

(d) 9-Month Work Schedule for Certain Nurses.—(1) The Secretary may authorize a registered nurse appointed under section 7405 of this title, with the nurse's written consent, to work full time for nine months with 3 months off duty, within a fiscal year, and be paid at 75 percent of the full-time rate for such nurse's grade for each pay period of such fiscal year.

(2) A nurse who works under the authority in paragraph (1) shall be considered a 0.75 full-time equivalent employee in computing full-time equivalent employees for the purposes of determining compliance with personnel ceilings.

(3) Work under this subsection shall be considered part-time service for purposes of computing benefits under chapters 83 and 84 of title 5.

(4) A nurse who works under the authority in paragraph (1) shall be considered a full-time employee for purposes of chapter 89 of title 5.

(e) Notification of Modification of Benefits.—The Secretary shall provide each employee with respect to whom an alternate work schedule under this section may apply written notice of the effect, if any, that the alternate work schedule will have on the employee's health care premium, retirement, life insurance premium, probationary status, or other benefit or condition of employment. The notice shall be provided not later than 14 days before the employee consents to the alternate work schedule.

(f) Regulations.—The Secretary shall prescribe regulations to carry out this section.

(Added Pub. L. 108–445, §4(a)(1), Dec. 3, 2004, 118 Stat. 2643; amended Pub. L. 111–163, title VI, §602(c), May 5, 2010, 124 Stat. 1173.)

Amendments

2010—Subsec. (b). Pub. L. 111–163, §602(c)(2)(A), substituted "72/80" for "36/40" in heading.

Subsec. (b)(1)(A). Pub. L. 111–163, §602(c)(1), substituted "six regularly scheduled 12-hour tours of duty within a 14-day period shall be considered for all purposes to have worked a full 80-hour pay period." for "three regularly scheduled 12-hour tours of duty within a work week shall be considered for all purposes to have worked a full 40-hour basic work week."

Subsec. (b)(2)(A). Pub. L. 111–163, §602(c)(2)(B), substituted "80-hour pay period" for "40-hour basic work week".

Subsec. (b)(3). Pub. L. 111–163, §602(c)(2)(C), struck out "regularly" before "scheduled 12-hour tour".

§7457. On-call pay

(a) The Secretary may pay an employee to whom this section applies pay at the rate provided in section 7453(h) of this title except for such time as the employee may be called back to work.

(b) This section applies to an employee who meets each of the following criteria:

(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).

(Added Pub. L. 102–40, title IV, §401(b)(4), May 7, 1991, 105 Stat. 236.)

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.

§7458. Recruitment and retention bonus pay

(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 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.

(Added Pub. L. 100–322, title II, §212(a)[(1)], May 20, 1988, 102 Stat. 514, §4120; renumbered §7458 and amended Pub. L. 102–40, title IV, §401(c)(4), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, §4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 103–446, title XII, §1201(h)(4), Nov. 2, 1994, 108 Stat. 4688; Pub. L. 110–387, title IX, §901(a)(6), Oct. 10, 2008, 122 Stat. 4142.)

Amendments

2008—Subsec. (b)(2). Pub. L. 110–387 substituted "pro-rated" for "pro rated".

1994Pub. 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".

1991Pub. L. 102–40 renumbered section 4120 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" wherever appearing.

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration" wherever appearing.

Subsecs. (b)(1), (c)(2), (e). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" wherever appearing.

Subsec. (f). Pub. L. 102–83, §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, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

§7459. Nursing staff: special rules for overtime duty

(a) Limitation.—Except as provided in subsection (c), the Secretary may not require nursing staff to work more than 40 hours (or 24 hours if such staff is covered under section 7456 of this title) in an administrative work week or more than eight consecutive hours (or 12 hours if such staff is covered under section 7456 or 7456A of this title).

(b) Voluntary Overtime.—(1) Nursing staff may on a voluntary basis elect to work hours otherwise prohibited by subsection (a).

(2) The refusal of nursing staff to work hours prohibited by subsection (a) shall not be grounds—

(A) to discriminate (within the meaning of section 704(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–3(a))) against the staff;

(B) to dismiss or discharge the staff; or

(C) for any other adverse personnel action against the staff.


(c) Overtime Under Emergency Circumstances.—(1) Subject to paragraph (2), the Secretary may require nursing staff to work hours otherwise prohibited by subsection (a) if—

(A) the work is a consequence of an emergency that could not have been reasonably anticipated;

(B) the emergency is non-recurring and is not caused by or aggravated by the inattention of the Secretary or lack of reasonable contingency planning by the Secretary;

(C) the Secretary has exhausted all good faith, reasonable attempts to obtain voluntary workers;

(D) the nurse staff have critical skills and expertise that are required for the work; and

(E) the work involves work for which the standard of care for a patient assignment requires continuity of care through completion of a case, treatment, or procedure.


(2) Nursing staff may not be required to work hours under this subsection after the requirement for a direct role by the staff in responding to medical needs resulting from the emergency ends.

(d) Nursing Staff Defined.—In this section, the term "nursing staff" includes the following:

(1) A registered nurse.

(2) A licensed practical or vocational nurse.

(3) A nurse assistant appointed under this chapter or title 5.

(4) Any other nurse position designated by the Secretary for purposes of this section.

(Added Pub. L. 111–163, title VI, §602(a)(1), May 5, 2010, 124 Stat. 1172.)