38 U.S.C. § 7402 — Qualifications of appointees

Page 1217 TITLE 38—VETERANS’ BENEFITS § 7402 LICENSED HEARING AID SPECIALISTS APPOINTMENT AND SERVICES Pub. L. 114–256, § 4(b), (c), Dec. 14, 2016, 130 Stat. 1347, 1348, provided that: ‘‘(b) REQUIREMENTS.—With respect to appointing hearing aid specialists under sections 7401 and 7402 of title 38, United States Code, as amended by subsection (a), and providing services furnished by such special- ists, the Secretary [of Veterans Affairs] shall ensure that— ‘‘(1) a hearing aid specialist may only perform hear- ing services consistent with the hearing aid special- ist’s State license related to the practice of fitting and dispensing hearing aids without excluding other qualified professionals, including audiologists, from rendering services in overlapping practice areas; ‘‘(2) services provided to veterans by hearing aid specialists shall be provided as part of the non-med- ical treatment plan developed by an audiologist; and ‘‘(3) the medical facilities of the Department of Veterans Affairs provide to veterans access to the full range of professional services provided by an audiol- ogist. ‘‘(c) CONSULTATION.—In determining the qualifica- tions required for hearing aid specialists and in car- rying out subsection (b), the Secretary shall consult with veterans service organizations, audiologists, otolaryngologists, hearing aid specialists, and other stakeholder and industry groups as the Secretary de- termines appropriate.’’ PRIOR APPOINTMENTS OF CERTAIN PERSONNEL Pub. L. 108–170, title III, § 301(a)(2), Dec. 6, 2003, 117 Stat. 2055, provided that: ‘‘Personnel appointed to the Veterans Health Administration before the date of the enactment of this Act [Dec. 6, 2003] who are in an occu- pational category of employees specified in paragraph (3) of section 7401 of title 38, United States Code, by reason of the amendment made by paragraph (1)(B) of this subsection [amending this section] shall, as of such date, be deemed to have been appointed to the Adminis- tration under such paragraph (3).’’ § 7402. Qualifications of appointees (a) To be eligible for appointment to the posi- tions in the Administration covered by sub- section (b), a person must have the applicable qualifications set forth in that subsection. (b)(1) PHYSICIAN.—To be eligible to be ap- pointed to a physician position, a person must— (A) hold the degree of doctor of medicine or of doctor of osteopathy from a college or uni- versity approved by the Secretary, (B) have completed an internship satisfac- tory 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 sur- gery or dental medicine from a college or uni- versity 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, CEN- TER, OR OUTPATIENT CLINIC.—To be eligible to be appointed to a director position, a person must have such business and administrative experi- ence and qualifications as the Secretary shall prescribe. (5) PODIATRIST.—To be eligible to be appointed to a podiatrist position, a person must— (A) hold the degree of doctor of podiatric medicine, or its equivalent, from a school of podiatric medicine approved by the Secretary, and (B) be licensed to practice podiatry in a State. (6) OPTOMETRIST.—To be eligible to be ap- pointed 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 ap- pointed 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 ap- pointed 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 intern- ship 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 certifi- cation for an individual psychologist for a pe- riod not to exceed two years on the condition that that psychologist provide patient care only under the direct supervision of a psychol- ogist who is so licensed or certified. (9) SOCIAL WORKER.—To be eligible to be ap- pointed to a social worker position, a person must— (A) hold a master’s degree in social work from a college or university approved by the Secretary; and (B) be licensed or certified to independently practice social work in a State, except that the Secretary may waive the requirement of licensure or certification for an individual so- cial worker for a reasonable period of time recommended by the Under Secretary for Health. (10) MARRIAGE AND FAMILY THERAPIST.—To be eligible to be appointed to a marriage and fam- ily therapist position, a person must— (A) hold a master’s degree in marriage and family therapy, or a comparable degree in mental health, from a college or university ap- proved by the Secretary; and (B) be licensed or certified to independently practice marriage and family therapy in a State, except that the Secretary may waive the requirement of licensure or certification Page 1218 TITLE 38—VETERANS’ BENEFITS § 7402 for an individual marriage and family thera- pist for a reasonable period of time rec- ommended by the Under Secretary for Health. (11) LICENSED PROFESSIONAL MENTAL HEALTH COUNSELOR.—To be eligible to be appointed to a licensed professional mental health counselor position, a person must— (A) hold a master’s degree or doctoral degree in mental health counseling, or a related field, from a college or university approved by the Secretary; and (B) be licensed or certified to independently practice mental health counseling. (12) CHIROPRACTOR.—To be eligible to be ap- pointed to a chiropractor position, a person must— (A) hold the degree of doctor of chiropractic, or its equivalent, from a college of chiro- practic approved by the Secretary; and (B) be licensed to practice chiropractic in a State. (13) Peer Specialist.—To be eligible to be ap- pointed to a peer specialist position, a person must— (A) be a veteran who has recovered or is re- covering from a mental health condition; and (B) be certified by— (i) a not-for-profit entity engaged in peer specialist training as having met such cri- teria as the Secretary shall establish for a peer specialist position; or (ii) a State as having satisfied relevant State requirements for a peer specialist posi- tion. (14) OTHER HEALTH-CARE POSITIONS.—To be ap- pointed as a physician assistant, expanded-func- tion dental auxiliary, certified or registered res- piratory therapist, licensed physical therapist, licensed practical or vocational nurse, occupa- tional therapist, dietitian, microbiologist, chemist, biostatistician, medical technologist, dental technologist, hearing aid specialist, or other position, a person must have such med- ical, dental, scientific, or technical qualifica- tions as the Secretary shall prescribe. (c) Except as provided in section 7407(a) of this title, a person may not be appointed in the Ad- ministration 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 sec- tion 7401(1) of this title to serve in the Adminis- tration in any direct patient-care capacity un- less the Under Secretary for Health determines that the person possesses such basic proficiency in spoken and written English as will permit such degree of communication with patients and other health-care personnel as will enable the person to carry out the person’s health-care re- sponsibilities satisfactorily. Any determination by the Under Secretary for Health under this subsection shall be in accordance with regula- tions which the Secretary shall prescribe. (e) A person may not serve as Chief of Staff of a Department health-care facility if the person is not serving on a full-time basis. (f) A person may not be employed in a position under subsection (b) (other than under para- graph (4) of that subsection) if— (1) the person is or has been licensed, reg- istered, or certified (as applicable to such posi- tion) in more than one State; and (2) either— (A) any of those States has terminated such license, registration, or certification for cause; or (B) the person has voluntarily relinquished such license, registration, or certification in any of those States after being notified in writing by that State of potential termi- nation for cause. (g) The Secretary may enter into contracts with not-for-profit entities to provide— (1) peer specialist training to veterans; and (2) certification for veterans under sub- section (b)(13)(B)(i). (Added Pub. L. 102–40, title IV, § 401(b)(2), May 7, 1991, 105 Stat. 222; amended Pub. L. 102–86, title III, § 305(a), Aug. 14, 1991, 105 Stat. 417; Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 106–117, title II, § 209, Nov. 30, 1999, 113 Stat. 1569; Pub. L. 106–419, title II, § 205, Nov. 1, 2000, 114 Stat. 1842; Pub. L. 108–170, title III, § 302(b), Dec. 6, 2003, 117 Stat. 2058; Pub. L. 109–461, title II, § 201(b), Dec. 22, 2006, 120 Stat. 3409; Pub. L. 110–387, title IV, § 405, Oct. 10, 2008, 122 Stat. 4129; Pub. L. 114–256, § 4(a)(2), Dec. 14, 2016, 130 Stat. 1347; Pub. L. 114–315, title VI, § 613, Dec. 16, 2016, 130 Stat. 1576.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in sections 4105 and 4108(b) of this title prior to the repeal of those sections as part of the complete re- vision of chapter 73 of this title by Pub. L. 102–40. AMENDMENTS 2016—Subsec. (b)(11)(A). Pub. L. 114–315 inserted ‘‘or doctoral degree’’ after ‘‘master’s degree’’. Subsec. (b)(14). Pub. L. 114–256 inserted ‘‘, hearing aid specialist’’ after ‘‘dental technologist’’. 2008—Subsec. (b)(11). Pub. L. 110–387, § 405(a)(1), redes- ignated par. (11) relating to other health care positions as (14). Subsec. (b)(13). Pub. L. 110–387, § 405(a)(2), added par. (13). Subsec. (b)(14). Pub. L. 110–387, § 405(a)(1), redesig- nated par. (11) relating to other health care positions as (14). Subsec. (g). Pub. L. 110–387, § 405(b), added subsec. (g). 2006—Subsec. (b)(10) to (12). Pub. L. 109–461 added par. (10) and the par. (11) relating to licensed professional health counselor and redesignated former par. (10) as (12). 2003—Subsec. (b)(10), (11). Pub. L. 108–170 added par. (10) and redesignated former par. (10) as (11). 2000—Subsec. (b)(9). Pub. L. 106–419 substituted ‘‘a person must—’’ and subpars. (A) and (B) for ‘‘a person must hold a master’s degree in social work from a col- lege or university approved by the Secretary and sat- isfy the social worker licensure, certification, or reg- istration requirements, if any, of the State in which the social worker is to be employed, except that the Secretary may waive the licensure, certification, or registration requirement of this paragraph for an indi- vidual social worker for a reasonable period, not to ex- ceed 3 years, in order for the social worker to take any actions necessary to satisfy the licensure, certification, or registration requirements of such State.’’ 1999—Subsec. (f). Pub. L. 106–117 added subsec. (f). 1992—Subsec. (d). Pub. L. 102–405 substituted ‘‘Under Secretary for Health’’ for ‘‘Chief Medical Director’’ in two places. Page 1219 TITLE 38—VETERANS’ BENEFITS § 7403 1991—Subsec. (b)(9), (10). Pub. L. 102–86 added par. (9) and redesignated former par. (9) as (10). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2003 AMENDMENT Amendment by Pub. L. 108–170 effective at end of 180- day period beginning on Dec. 6, 2003, see section 302(h) of Pub. L. 108–170, set out as a note under section 7316 of this title. EFFECTIVE DATE OF 1991 AMENDMENT Pub. L. 102–86, title III, § 305(b), Aug. 14, 1991, 105 Stat. 417, provided that: ‘‘The amendment made by sub- section (a) [amending this section] does not apply to any person employed as a social worker by the Depart- ment of Veterans Affairs on or before the date of the enactment of this Act [Aug. 14, 1991].’’ PRESCRIPTION OF TECHNICAL QUALIFICATIONS FOR LI- CENSED HEARING AID SPECIALISTS AND REQUIREMENT FOR APPOINTMENT OF SUCH SPECIALISTS Pub. L. 116–171, title VII, § 703, Oct. 17, 2020, 134 Stat. 829, provided that: ‘‘(a) TECHNICAL QUALIFICATIONS.— ‘‘(1) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act [Oct. 17, 2020], the Secretary of Veterans Affairs shall prescribe the technical qualifications required under section 7402(b)(14) of title 38, United States Code, to be ap- pointed as a licensed hearing aid specialist under sec- tion 7401(3) of such title. ‘‘(2) ELEMENTS FOR QUALIFICATIONS.—In prescribing the qualifications for licensed hearing aid specialists under paragraph (1), the Secretary shall, at a min- imum, ensure that such qualifications are consistent with— ‘‘(A) the standards for licensure of hearing aid specialists that are required by a majority of States; ‘‘(B) any competencies needed to perform tasks and services commonly performed by hearing aid specialists pursuant to such standards; and ‘‘(C) any competencies needed to perform tasks specific to providing care to individuals under the laws administered by the Secretary. ‘‘(b) AUTHORITY TO SET AND MAINTAIN DUTIES.—The Secretary shall retain the authority to set and main- tain the duties for licensed hearing aid specialists ap- pointed under section 7401(3) of title 38, United States Code, for the purposes of the employment of such spe- cialists with the Department of Veterans Affairs. ‘‘(c) APPOINTMENT.—Not later than September 30, 2022, the Secretary shall appoint not fewer than one li- censed hearing aid specialist at each medical center of the Department. ‘‘(d) REPORT.—Not later than September 30, 2022, and annually thereafter, the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Rep- resentatives a report— ‘‘(1) assessing the progress of the Secretary in ap- pointing licensed hearing aid specialists under sub- section (c); ‘‘(2) assessing potential conflicts or obstacles that prevent the appointment of licensed hearing aid spe- cialists; ‘‘(3) assessing the factors that led to such conflicts or obstacles; ‘‘(4) assessing access of patients to comprehensive hearing health care services from the Department consistent with the requirements under section 4(b) of the Veterans Mobility Safety Act of 2016 (Public Law 114–256; 38 U.S.C. 7401 note), including an assess- ment of the impact of infrastructure and equipment limitations on wait times for audiologic care; and ‘‘(5) indicating the medical centers of the Depart- ment with vacancies for audiologists or licensed hearing aid specialists.’’ REQUIREMENTS RESPECTING BASIC PROFICIENCY IN SPO- KEN AND WRITTEN ENGLISH OF APPOINTEES AFTER NOVEMBER 23, 1977 Pub. L. 95–201, § 4(a)(3), Nov. 23, 1977, 91 Stat. 1430, pro- vided that: ‘‘Notwithstanding any other provision of law, with respect to persons other than those described in subsection (c) of section 4105 and subsection (f) of section 4114 of title 38, United States Code [former sec- tions 4105(c) and 4114(f) of this title, see subsec. (d) of this section and section 7407(d) of this title] (as added by paragraphs (1) and (2) of this subsection), who are appointed after the date of enactment of this Act [Nov. 23, 1977] in the Department of Medicine and Surgery in the Veterans’ Administration [now Veterans Health Administration of the Department of Veterans Affairs] in any direct patient-care capacity, and with respect to persons described in such subsections who are ap- pointed after such enactment date and prior to January 1, 1978, the Administrator of Veterans’ Affairs [now Secretary of Veterans Affairs], upon the recommenda- tion of the Chief Medical Director [now Under Sec- retary for Health], shall take appropriate steps to pro- vide reasonable assurance that such persons possess such basic proficiency in spoken and written English as will permit such degree of communication with pa- tients and other health-care personnel as will enable such persons to carry out their health-care responsibil- ities satisfactorily.’’ § 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 accord- ance with regulations prescribed by the Sec- retary, without regard to civil-service require- ments. (2) This section applies to the following per- sons appointed under this chapter: (A) Physicians. (B) Dentists. (C) Podiatrists. (D) Optometrists. (E) Nurses. (F) Physician assistants. (G) Expanded-function dental auxiliaries. (H) Chiropractors. (b)(1) Except as otherwise provided in this sub- section, appointments described in subsection (a) shall be for a probationary period of two years. (2) With respect to the appointment of a reg- istered nurse under this chapter, paragraph (1) shall apply with respect to such appointment re- gardless of whether such appointment is on a full-time basis or a part-time basis. (3) An appointment described in subsection (a) on a part-time basis of a person who has pre- viously served on a full-time basis for the proba- tionary period for the position concerned shall be without a probationary period. (4) 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 sec- tion applies shall be made only after examina-