38 U.S.C. § 7405 — Temporary full-time appointments, part-

Page 1224 TITLE 38—VETERANS’ BENEFITS § 7404A Executive Documents ADJUSTMENT OF PAY RATES For adjustment of pay rates under this section, see the executive order detailing the adjustment of certain rates of pay set out as a note under section 5332 of Title 5, Government Organization and Employees. EXECUTIVE ORDER NO. 12438 Ex. Ord. No. 12438, Aug. 23, 1983, 48 F.R. 39205, which related to review of increases in rates of basic pay for employees of the Veterans’ Administration, was re- voked by Ex. Ord. No. 12797, Apr. 3, 1992, 57 F.R. 11671, set out as a note under section 7455 of this title. § 7404A. Awards (a) SUPERIOR ACCOMPLISHMENTS AND PERFORM- ANCE AWARDS PROGRAM.—The Secretary may es- tablish an awards program for personnel listed in section 7421(b) of this title consistent with chapter 45 of title 5, to the extent practicable. (b) EXECUTIVE PERFORMANCE AWARDS PRO- GRAM.—Notwithstanding section 7425 of this title or any other provision of law, the Sec- retary may establish a performance awards pro- gram consistent with section 5384 of title 5 for— (1) personnel appointed under section 7401(1) of this title for a position that the Secretary has determined is of equivalent rank to a Sen- ior Executive Service position (as such term is defined in section 3132(a) of title 5) and is sub- ject to an agency performance management system; and (2) personnel appointed under section 7306 or 7401(4) of this title. (c) PAYMENT OF AWARDS.—Awards under this section may be paid based on criteria estab- lished by the Secretary and shall not be consid- ered in calculating the limitation under section 7431(e)(4) of this title. (d) NOT CONSIDERED BASIC PAY.—Awards under this section shall not be considered basic pay for any purpose. (e) REGULATIONS.—The Secretary may pre- scribe regulations for the administration of this section. (Added Pub. L. 117–168, title IX, § 906(b)(1), Aug. 10, 2022, 136 Stat. 1812.) Statutory Notes and Related Subsidiaries LIMITATION ON PAST AWARDS Pub. L. 117–168, title IX, § 906(b)(2), Aug. 10, 2022, 136 Stat. 1812, provided that: ‘‘Notwithstanding any other provision of law, awards made by the Secretary of Vet- erans Affairs for any period on or after January 1, 2017, and before the date of the enactment of this Act [Aug. 10, 2022] for an employee under section 7306 or 7401(4) of title 38, United States Code, or for a position described in section 7401(1) of such title that the Secretary has determined is of equivalent rank to a Senior Executive Service position (as such term is defined in section 3132(a) of title 5, United States Code), may be subject to section 7404A of title 38, United States Code, as added by paragraph (1).’’ § 7405. Temporary full-time appointments, part- time appointments, and without-compensa- tion appointments (a) The Secretary, upon the recommendation of the Under Secretary for Health, 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) Positions listed in section 7401(3) of this title. (C) 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) Positions listed in section 7401(3) of this title. (C) Other professional and technical per- sonnel. (b) Personnel employed under subsection (a)— (1) shall be in addition to personnel de- scribed 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 Sec- retary may prescribe. (c)(1) Temporary full-time appointments under this section of persons in positions listed in paragraphs (1) and (3) of section 7401 of this title may be for a period in excess of 90 days only if the Under Secretary for Health finds that cir- cumstances render it impracticable to obtain the necessary services through appointments under that section. (2) A temporary full-time appointment may not be made for a period in excess of two years in the case of a person who— (A) has successfully completed— (i) a full course of nursing in a recognized school of nursing, approved by the Sec- retary; or (ii) a full course of training for any cat- egory of personnel described in paragraph (3) of section 7401 of this title, or as a physician assistant, in a recognized education or train- ing institution approved by the Secretary; and (B) is pending registration or licensure in a State or certification by a national board rec- ognized by the Secretary. (3)(A) Temporary full-time appointments of persons in positions referred to in subsection (a)(1)(D) shall not exceed three years. (B) Temporary full-time appointments under this paragraph may be renewed for one or more additional periods not in excess of three years each. (4) Temporary full-time appointments of other personnel may not be for a period in excess of one year except as authorized in subsection (f). (d) A part-time appointment may not be for a period of more than one year, except for ap- pointments of persons specified in subsection (a)(1)(A) and interns, residents, and other train- ees in medical support programs and except as authorized in subsection (f). (e) A student who has a temporary appoint- ment under this section and who is pursuing a Page 1225 TITLE 38—VETERANS’ BENEFITS § 7406 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 cat- egory of personnel described in paragraph (3) of section 7401 of this title in a recognized edu- cation 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 Sec- retary 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 per- sonnel in a category of personnel described in such paragraph— (1) the Secretary may make temporary full- time appointments of personnel in such cat- egory for periods exceeding 90 days if the Under Secretary for Health finds that cir- cumstances 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. (g)(1) Except as provided in paragraph (3), em- ployment of a registered nurse on a temporary part-time basis under subsection (a)(1) shall be for a probationary period of two years. (2) Except as provided in paragraph (3), upon completion by a registered nurse of the proba- tionary period described in paragraph (1)— (A) the employment of such nurse shall— (i) no longer be considered temporary; and (ii) be considered an appointment de- scribed in section 7403(a) of this title; and (B) the nurse shall be considered to have served the probationary period required by section 7403(b). (3) This subsection shall not apply to appoint- ments made on a term limited basis of less than or equal to three years of— (A) nurses with a part-time appointment re- sulting from an academic affiliation or teach- ing position in a nursing academy of the De- partment; (B) nurses appointed as a result of a specific research proposal or grant; or (C) nurses who are not citizens of the United States and appointed under section 7407(a) of this title. (Added Pub. L. 102–40, title IV, § 401(b)(2), May 7, 1991, 105 Stat. 226; amended Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 106–419, title II, § 204, Nov. 1, 2000, 114 Stat. 1842; Pub. L. 108–170, title III, § 301(c), Dec. 6, 2003, 117 Stat. 2057; Pub. L. 111–163, title VI, § 601(c), May 5, 2010, 124 Stat. 1168.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 4114(a) 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. (g). Pub. L. 111–163 added subsec. (g). 2003—Subsec. (a)(1)(B), (C). Pub. L. 108–170, § 301(c)(1)(A), added subpars. (B) and (C) and struck out former subpars. (B) and (C) which read as follows: ‘‘(B) Certified or registered respiratory therapists, li- censed physical therapists, licensed practical or voca- tional nurses, pharmacists, and occupational thera- pists. ‘‘(C) Dietitians, social workers, and librarians.’’ Subsec. (a)(2)(B). Pub. L. 108–170, § 301(c)(1)(B), added subpar. (B) and struck out former subpar. (B) which read as follows: ‘‘Certified or registered respiratory therapists, licensed physical therapists, licensed prac- tical or vocational nurses, pharmacists, and occupa- tional therapists.’’ Subsec. (c)(1). Pub. L. 108–170, § 301(c)(2), substituted ‘‘paragraphs (1) and (3) of section 7401’’ for ‘‘section 7401(1)’’. 2000—Subsec. (c)(2). Pub. L. 106–419, § 204(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: ‘‘Temporary full-time appointments of persons who have successfully completed a full course of nurs- ing 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 de- scribed 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.’’ Subsec. (c)(3), (4). Pub. L. 106–419, § 204(b), added par. (3) and redesignated former par. (3) as (4). 1992—Subsecs. (a), (c)(1), (f)(1). Pub. L. 102–405 sub- stituted ‘‘Under Secretary for Health’’ for ‘‘Chief Med- ical Director’’. Statutory Notes and Related Subsidiaries RECRUITMENT OF MENTAL HEALTH PROVIDERS FOR FURNISHING MENTAL HEALTH SERVICES ON BEHALF OF THE DEPARTMENT OF VETERANS AFFAIRS WITHOUT COMPENSATION FROM THE DEPARTMENT Pub. L. 112–239, div. A, title VII, § 729, Jan. 2, 2013, 126 Stat. 1813, provided that: ‘‘(a) IN GENERAL.—The Secretary of Veterans Affairs shall carry out a national program of outreach to soci- eties, community organizations, nonprofit organiza- tions, and government entities in order to recruit men- tal health providers who meet the quality standards and requirements of the Department of Veterans Af- fairs to provide mental health services for the Depart- ment on a part-time, without-compensation basis, under section 7405 of title 38, United States Code. ‘‘(b) PARTNERING WITH AND DEVELOPING COMMUNITY ENTITIES AND NONPROFIT ORGANIZATIONS.—In carrying out the program required by subsection (a), the Sec- retary may partner with a community entity or non- profit organization or assist in the development of a community entity or nonprofit organization, including by entering into an agreement under section 8153 of title 38, United States Code, that provides strategic co- ordination of the societies, organizations, and govern- ment entities described in subsection (a) in order to maximize the availability and efficient delivery of mental health services to veterans by such societies, organizations, and government entities. ‘‘(c) MILITARY CULTURE TRAINING.—In carrying out the program required by subsection (a), the Secretary shall provide training to mental health providers to en- sure that clinicians who provide mental health services as described in such subsection have sufficient under- standing of military-specific and service-specific cul- ture, combat experience, and other factors that are unique to the experience of veterans who served in Op- eration Enduring Freedom, Operating Iraqi Freedom, or Operation New Dawn.’’ § 7406. Residencies and internships (a)(1) The Secretary may establish residencies and internships. The Secretary may appoint