§ 7407. Administrative provisions for section 7405 and 7406 appointments

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1991

   Department of Veterans Affairs Health-Care Personnel Act of 1991

   Pub. L. 102–40 title IV § 401(b)(2) · 105 Stat. 187

   Enacted · 38 U.S.C. § 7407

   Added Pub. L. 102–40, title IV, § 401(b)(2), May 7, 1991, 105 Stat. 228

   Source evidence

   Code source credit
   Added Pub. L. 102–40, title IV, § 401(b)(2), May 7, 1991, 105 Stat. 228

   Enacted provision · exact public law section
   (2) Such chapter is further amended by inserting before subchapter II (as added by section 202) the following: “SUBCHAPTER I— APPOINTMENTS “§ 7401. Appointments in Veterans Health Administration “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 Chief Medical Director 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. “§ 7402. Qualifications of appointees “(a) To be eligible for appointment to the positions in the Administration covered by subsection (b), a person must have the applicable qualifications set forth in that subsection. “(b) (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 Out-patient 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 pediatric medicine, or its equivalent, from a school of pediatric 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) 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 capac-ity unless the Chief Medical Director 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 Regulations. person’s health-care responsibilities satisfactorily. Any determination by the Chief Medical Director 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. “§ 7403. Period of appointments; promotions “(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 Chief Medical Director, 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. “§ 7404. Grades and pay scales “(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: “physician and dentist schedule “Director grade. “Executive grade. “Chief grade. “Senior grade. “Intermediate grade. “Full grade. “Associate grade. “nurse schedule “Director grade. “Senior grade. “Intermediate grade. “Entry grade. “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). 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 ID 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 Chief Medical Director. “(2) Level V for all other positions for which such basic pay is paid under this section. “§ 7405. Temporary full-time appointments, part-time appointments, and without-compensation appointments “(a) The Secretary, upon the recommendation of the Chief Medical Director, 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 Chief Medical Director finds that circumstances render it impracticable to obtain the necessary services through appointments under that section. “(2) 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. “(3) Temporary full-time appointments of other personnel may not be for a period in excess of one year except as authorized in subsection (0. “(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 Chief Medical Director 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. “§ 7406. Residencies and internships “(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 Regulations. 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 hospital 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 hospital; “(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 hospital 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 hospital, including a Department hospital. “(5) Leave described in paragraph (4)(C) may be pooled, and the intern or resident may be afforded leave by the hospital 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 hospital in which such person is serving at the time the leave is to be afforded. “§ 7407. Administrative provisions for section 7405 and 7406 appointments “(a) When the Chief Medical Director 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 Chief Medical Director 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. “§ 7408. Appointment of additional employees “(a) There shall be appointed by the Secretary under civil-service laws, rules, and regulations, such additional employees, other than those provided in section 7306 and paragraphs (1) and (3) of section 7401 of this title and those specified in sections 7405 and 7406 of this title, as may be necessary to carry out the provisions of this chapter. “(b) The Secretary, after considering an individual’s existing pay, higher or unique qualifications, or the special needs of the Department, may appoint the individual to a position in the Administration providing direct patient-care services or services incident to direct patient-services at a rate of pay above the minimum rate of the appropriate grade. “§ 7409. Contracts for scarce medical specialist services “(a) The Secretary may enter into contracts with institutions and persons described in subsection (b) to provide scarce medical special-ist 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.”.

2. 1992

   Veterans’ Medical Programs Amendments of 1992

   Pub. L. 102–405 title III § 302(c)(1) · 106 Stat. 1972

   Substituted · 38 U.S.C. § 7407(a); 38 U.S.C. § 7407(b)(1)

   Pub. L. 102–405 substituted “Under Secretary for Health” for “Chief Medical Director”

   Source evidence

   Code amendment note
   Subsecs. (a), (b)(1). Pub. L. 102–405 substituted “Under Secretary for Health” for “Chief Medical Director”.

   Enacted provision · exact public law section
   (1) Title 38, United States Code, is amended by striking out “Chief Medical Director” and “Chief Benefits Director” each place they appear (including in headings and tables but not including the sentences added by paragraphs (2) and (3)) and inserting in lieu thereof “Under Secretary for Health” and “Under Secretary for Benefits”, respectively.

2 of 2 references resolved to an enrolled provision