38 U.S.C. § 7453 — Nurses: additional pay

Page 1249 TITLE 38—VETERANS’ BENEFITS § 7453 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 pursu- ant to a disciplinary action otherwise author- ized 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 Sec- retary determines that such rate of pay is nec- essary to fill the position. Whenever the Sec- retary exercises the authority under the pre- ceding 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 Sec- retary may, in accordance with regulations pre- scribed 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 difficul- ties in recruitment and retention of nurse ex- ecutives at the health care facility concerned, and such other factors as the Secretary con- siders 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 re- tirement benefits under chapters 83 and 84 of title 5, and other benefits, but shall not be con- sidered 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.) Editorial Notes 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 pe- riod 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 Sec- retary may provide that for at least the first year fol- lowing such transfer the employee shall be paid at a rate of basic pay up to the rate applicable to such em- ployee before the transfer, if the Secretary determines that such rate of pay is necessary to fill the position. Whenever the Secretary exercises the authority under the preceding sentence relating to the rate of basic pay of a transferred employee, the Secretary shall, in the next annual report required under section 7451(g) of this title, provide justification for doing so’’. 1991—Pub. L. 102–40, § 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), sub- stituted ‘‘7451(a)’’ for ‘‘4141(a)’’. Subsec. (a)(2). Pub. L. 102–40, § 401(c)(3)(A)(ii), sub- stituted ‘‘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’’. Statutory Notes and Related Subsidiaries 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. § 7453. Nurses: additional pay (a) In addition to the rate of basic pay pro- vided 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 mid- night 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 addi- tional pay at a rate equal to such hourly rate of basic pay, for that holiday service, including overtime service. Any service required to be per- Page 1250 TITLE 38—VETERANS’ BENEFITS § 7454 formed 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, over- time 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 vol- untarily requested in writing by the nurse in question. (4) Any excess service performed under this subsection on a day when service was not sched- uled for such nurse, or for which such nurse is required to return to the nurse’s place of em- ployment, shall be deemed to be a minimum of two hours in duration. (5) For the purposes of this subsection, the pe- riod 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 condi- tions 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 addi- tional 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 com- puted separately on the basis of such nurse’s hourly rate of basic pay, except that no over- time pay as provided in subsection (e) shall be payable for overtime service performed on a hol- iday designated by Federal statute or Executive order in addition to pay received under sub- section (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 Execu- tive 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 author- ized under subsections (b) through (h) if the Sec- retary 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 ad- ditional 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 Depart- ment health-care facility (based upon a rea- sonably 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 geo- graphic 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.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 4107(e) 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 2010—Subsec. (a). Pub. L. 111–163, § 601(k)(1)(A), sub- stituted ‘‘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 sub- stituted ‘‘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 sub- stituted ‘‘such service’’ for ‘‘service on such tour’’. Subsec. (e)(1). Pub. L. 111–163, § 601(k)(1)(D)(i), sub- stituted ‘‘eight consecutive hours’’ for ‘‘eight hours in a day’’. Subsec. (e)(5)(A). Pub. L. 111–163, § 601(k)(1)(D)(ii), sub- stituted ‘‘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 ‘‘sub- sections (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-func- tion dental auxiliaries shall be entitled to addi- tional 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 serv-