38 U.S.C. § 7403 — Period of appointments; promotions

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- Page 1220 TITLE 38—VETERANS’ BENEFITS § 7403 tion given in accordance with regulations pre- scribed by the Secretary. Advancement within grade may be made in increments of the min- imum rate of basic pay of the grade in accord- ance with regulations prescribed by the Sec- retary. (d) In determining eligibility for reinstate- ment in the Federal civil service of persons ap- pointed to positions in the Administration under this chapter who at the time of appoint- ment have a civil-service status, and whose em- ployment in the Administration is terminated, the period of service performed in the Adminis- tration shall be included in computing the pe- riod 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 ap- plies 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 ap- propriate. (f)(1) Upon the recommendation of the Under Secretary for Health, the Secretary may— (A) use the authority in subsection (a) to es- tablish the qualifications for and (subject to paragraph (2)) to appoint individuals to posi- tions listed in section 7401(3) of this title; and (B) use the authority provided in subsection (c) for the promotion and advancement of De- partment employees serving in such positions. (2) In using such authority to appoint individ- uals to such positions, the Secretary shall apply the principles of preference for the hiring of vet- erans and other persons established in sub- chapter I of chapter 33 of title 5. (3) Notwithstanding any other provision of this title or other law, all matters relating to adverse actions, reductions-in-force, the applica- bility of the principles of preference referred to in paragraph (2), rights of part-time employees, disciplinary actions, and grievance procedures involving individuals appointed to such posi- tions, whether appointed under this section or section 7405(a)(1)(B) of this title (including simi- lar actions and procedures involving an em- ployee in a probationary status), shall be re- solved under the provisions of title 5 as though such individuals had been appointed under that title. (g)(1) The Secretary may appoint in the com- petitive civil service without regard to the pro- visions 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 Depart- ment. (2) In using the authority provided by this sub- section, 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. (h)(1) If the Secretary uses the authority pro- vided in subsection (c) for the promotion and ad- vancement of an occupational category of em- ployees described in section 7401(3) of this title, as authorized by subsection (f)(1)(B), the Sec- retary shall do so through one or more systems prescribed by the Secretary. Each such system shall be planned, developed, and implemented in collaboration with, and with the participation of, exclusive employee representatives of such occupational category of employees. (2)(A) Before prescribing a system of pro- motion and advancement of an occupational cat- egory of employees under paragraph (1), the Sec- retary shall provide to exclusive employee rep- resentatives of such occupational category of employees a written description of the proposed system. (B) Not later than 30 days after receipt of the description of a proposed system under subpara- graph (A), exclusive employee representatives may submit to the Secretary the recommenda- tions, if any, of such exclusive employee rep- resentatives with respect to the proposed sys- tem. (C) The Secretary shall give full and fair con- sideration to any recommendations received under subparagraph (B) in deciding whether and how to proceed with a proposed system. (3) The Secretary shall implement imme- diately any part of a system of promotion and advancement under paragraph (1) that is pro- posed under paragraph (2) for which the Sec- retary receives no recommendations from exclu- sive employee representatives under paragraph (2). (4) If the Secretary receives recommendations under paragraph (2) from exclusive employee representatives on any part of a proposed sys- tem of promotion and advancement under that paragraph, the Secretary shall determine wheth- er or not to accept the recommendations, either in whole or in part. If the Secretary determines not to accept all or part of the recommenda- tions, the Secretary shall— (A) notify the congressional veterans’ affairs committees of the recommendations and of the portion of the recommendations that the Secretary has determined not to accept; (B) meet and confer with such exclusive em- ployee representatives, for a period not less than 30 days, for purposes of attempting to reach an agreement on whether and how to proceed with the portion of the recommenda- tions that the Secretary has determined not to accept; (C) at the election of the Secretary, or of a majority of such exclusive employee rep- resentatives who are participating in negotia- tions on such matter, employ the services of the Federal Mediation and Conciliation Serv- ice during the period referred to in subpara- graph (B) for purposes of reaching such agree- ment; and (D) if the Secretary determines that activi- ties under subparagraph (B), (C), or both are unsuccessful at reaching such agreement and determines (in the sole and unreviewable dis- cretion of the Secretary) that further meeting and conferral under subparagraph (B), medi- ation under subparagraph (C), or both are un- likely to reach such agreement— (i) notify the congressional veterans’ af- fairs committees of such determinations, Page 1221 TITLE 38—VETERANS’ BENEFITS § 7404 1 So in original. Probably should be ‘‘sections’’. identify for such committees the portions of the recommendations that the Secretary has determined not to accept, and provide such committees an explanation and justification for determining to implement the part of the system subject to such portions of the rec- ommendations without regard to such por- tions of the recommendations; and (ii) commencing not earlier than 30 days after notice under clause (i), implement the part of the system subject to the rec- ommendations that the Secretary has deter- mined not to accept without regard to those recommendations. (5) If the Secretary and exclusive employee representatives reach an agreement under para- graph (4) providing for the resolution of a dis- agreement on one or more portions of the rec- ommendations that the Secretary had deter- mined not to accept under that paragraph, the Secretary shall immediately implement such resolution. (6) In implementing a system of promotion and advancement under this subsection, the Sec- retary shall— (A) develop and implement mechanisms to permit exclusive employee representatives to participate in the periodic review and evalua- tion of the system, including peer review, and in any further planning or development re- quired with respect to the system as a result of such review and evaluation; and (B) provide exclusive employee representa- tives appropriate access to information to en- sure that the participation of such exclusive employee representative in activities under subparagraph (A) is productive. (7)(A) The Secretary may from time to time modify a system of promotion and advancement under this subsection. (B) In modifying a system, the Secretary shall take into account any recommendations made by the exclusive employee representatives con- cerned. (C) In modifying a system, the Secretary shall comply with paragraphs (2) through (5) and shall treat any proposal for the modification of a sys- tem as a proposal for a system for purposes of such paragraphs. (D) The Secretary shall promptly submit to the congressional veterans’ affairs committees a report on any modification of a system. Each re- port shall include— (i) an explanation and justification of the modification; and (ii) a description of any recommendations of exclusive employee representatives with re- spect to the modification and a statement whether or not the modification was revised in light of such recommendations. (8) In the case of employees who are not within a unit with respect to which a labor organiza- tion is accorded exclusive recognition, the Sec- retary may develop procedures for input from representatives under this subsection from any appropriate organization that represents a sub- stantial percentage of such employees or, if none, in such other manner as the Secretary considers appropriate, consistent with the pur- poses of this subsection. (9) In this subsection, the term ‘‘congressional veterans’ affairs committees’’ means the Com- mittees on Veterans’ Affairs of the Senate and the House of Representatives. (Added Pub. L. 102–40, title IV, § 401(b)(2), May 7, 1991, 105 Stat. 224; amended Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 108–170, title III, §§ 301(b), 302(c), Dec. 6, 2003, 117 Stat. 2055, 2058; Pub. L. 111–163, title VI, § 601(b), May 5, 2010, 124 Stat. 1168.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 4106 of this title prior to the repeal of that section as part of the complete revision of chapter 73 of this title by Pub. L. 102–40. AMENDMENTS 2010—Subsec. (b)(1). Pub. L. 111–163, § 601(b)(1), sub- stituted ‘‘Except as otherwise provided in this sub- section, appointments’’ for ‘‘Appointments’’. Subsec. (b)(2) to (4). Pub. L. 111–163, § 601(b)(2), (3), added pars. (2) and (3) and redesignated former par. (2) as (4). 2003—Subsec. (a)(2)(H). Pub. L. 108–170, § 302(c), added subpar. (H). Subsec. (f)(3). Pub. L. 108–170, § 301(b)(1), inserted ‘‘re- ductions-in-force, the applicability of the principles of preference referred to in paragraph (2), rights of part- time employees,’’ after ‘‘adverse actions,’’, ‘‘, whether appointed under this section or section 7405(a)(1)(B) of this title’’ after ‘‘such positions’’, and comma after ‘‘status)’’. Subsec. (h). Pub. L. 108–170, § 301(b)(2), added subsec. (h). 1992—Subsec. (f)(1). Pub. L. 102–405 substituted ‘‘Under Secretary for Health’’ for ‘‘Chief Medical Direc- tor’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2003 AMENDMENT Amendment by section 302(c) of Pub. L. 108–170 effec- tive 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. § 7404. Grades and pay scales (a)(1)(A) The annual rates or ranges of rates of basic pay for positions provided in section 1 7306 and 7401(4) of this title shall be prescribed from time to time by Executive order as authorized by chapter 53 of title 5 or as otherwise author- ized by law. (B) Section 5377 of title 5 shall apply to a posi- tion under section 7306 or 7401(4) of this title as if such position were included in the definition of ‘‘position’’ in section 5377(a) of title 5. (2)(A) The pay of physicians, podiatrists, op- tometrists, and dentists serving in positions to which an Executive order applies under para- graph (1) shall be determined under subchapter III of this chapter instead of such Executive order. (B) The basic pay of registered nurses and phy- sician assistants serving in positions to which an Executive order applies under paragraph (1) may be determined under subchapter IV of this chapter instead of such Executive order. Such