38 U.S.C. § 7459 — Nursing staff: special rules for overtime

Page 1255 TITLE 38—VETERANS’ BENEFITS § 7459 ment. The amount of such bonus pay may not exceed— (A) $2,000 per year, in the case of an agree- ment for two years, (B) $3,000 per year, in the case of an agree- ment for three years, and (C) $4,000 per year, in the case of an agree- ment for four years. (2) In the case of an agreement for employ- ment 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 pay- ment 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 al- lowance to which the individual is entitled. (2) The amount of a bonus paid under this sec- tion 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 entitle- ment to benefits based on basic pay. (e) At least once each year the Secretary, upon the recommendation of the Under Sec- retary 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 deter- mination, the Secretary shall promptly notify the Committees on Veterans’ Affairs of the Sen- ate and the House of Representatives of the de- termination 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 Sec- retary’s authority to enter into any such agree- ment 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 serv- ices 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 agree- ment under this section to serve for the period of obligated service actually served (as deter- mined 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 en- tire 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 per- form services for the period of obligated service is due to circumstances (not including separa- tion for cause) beyond the control of the indi- vidual. (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 re- quired to refund shall be disclosed to the indi- vidual 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.) Editorial Notes AMENDMENTS 2008—Subsec. (b)(2). Pub. L. 110–387 substituted ‘‘pro- rated’’ for ‘‘pro rated’’. 1994—Pub. L. 103–446 substituted ‘‘Recruitment and retention bonus pay’’ for ‘‘Recruitment and retention bonus pay for nurses and certain other health-care per- sonnel’’ as section catchline. 1992—Subsec. (e). Pub. L. 102–405 substituted ‘‘Under Secretary for Health’’ for ‘‘Chief Medical Director’’. 1991—Pub. L. 102–40 renumbered section 4120 of this title as this section. Subsec. (a). Pub. L. 102–83, § 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 ‘‘sec- tion 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 sub- section (c), the Secretary may not require nurs- ing 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). Page 1256 TITLE 38—VETERANS’ BENEFITS § 7461 (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 CIR- CUMSTANCES.—(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 emer- gency that could not have been reasonably an- ticipated; (B) the emergency is non-recurring and is not caused by or aggravated by the inatten- tion 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 re- quires 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 require- ment 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.) SUBCHAPTER V—DISCIPLINARY AND GRIEVANCE PROCEDURES § 7461. Adverse actions: section 7401(1) employ- ees (a) Whenever the Under Secretary for Health (or an official designated by the Under Sec- retary for Health) brings charges based on con- duct or performance against a section 7401(1) employee and as a result of those charges an ad- verse personnel action is taken against the em- ployee, the employee shall have the right to ap- peal the action. (b)(1) If the case involves or includes a ques- tion of professional conduct or competence in which a major adverse action was taken, such an appeal shall be made to a Disciplinary Appeals Board under section 7462 of this title. (2) In any case other than a case described in paragraph (1) that involves or includes a ques- tion of professional conduct or competence in which a major adverse action was not taken, such an appeal shall be made through Depart- ment grievance procedures under section 7463 of this title. (c) For purposes of this subchapter— (1) Section 7401(1) employees are employees of the Department employed on a full-time basis under a permanent appointment in a po- sition listed in section 7401(1) of this title (other than employees in senior executive po- sitions (as defined in section 713(d) of this title) and interns and residents appointed pur- suant to section 7406 of this title). (2) A major adverse action is an adverse ac- tion which includes any of the following: (A) Suspension. (B) Transfer. (C) Reduction in grade. (D) Reduction in basic pay. (E) Discharge. (3) A question of professional conduct or competence is a question involving any of the following: (A) Direct patient care. (B) Clinical competence. (d) An issue of whether a matter or question concerns, or arises out of, professional conduct or competence is not itself subject to any griev- ance procedure provided by law, regulation, or collective bargaining and may not be reviewed by any other agency. (e) Whenever the Secretary proposes to pre- scribe regulations under this subchapter, the Secretary shall publish the proposed regulations in the Federal Register for notice-and-comment not less than 30 days before the day on which they take effect. (Added Pub. L. 102–40, title II, § 203(a), May 7, 1991, 105 Stat. 202; amended Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 115–41, title II, §§ 201(b), 208(a), June 23, 2017, 131 Stat. 869, 878.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this subchapter were contained in section 4110 of this title prior to the repeal of that section as part of the complete revision of chap- ter 73 of this title by Pub. L. 102–40. AMENDMENTS 2017—Subsec. (b)(2). Pub. L. 115–41, § 208(a), amended par. (2) generally. Prior to amendment, par. (2) related to the appeals procedure for cases not described in par. (1). Subsec. (c)(1). Pub. L. 115–41, § 201(b), inserted ‘‘em- ployees in senior executive positions (as defined in sec- tion 713(d) of this title) and’’ before ‘‘interns’’. 1992—Subsec. (a). Pub. L. 102–405 substituted ‘‘Under Secretary for Health’’ for ‘‘Chief Medical Director’’ in two places. Statutory Notes and Related Subsidiaries REGULATIONS Pub. L. 102–40, title II, § 204, May 7, 1991, 105 Stat. 207, provided that: ‘‘The Secretary of Veterans Affairs shall prescribe regulations under subchapter V of chapter 74 of title 38, United States Code (as added by section 203), not later than 180 days after the date of the enactment of this Act [May 7, 1991]. Such regulations shall be pub- lished in the Federal Register for notice-and-comment