38 U.S.C. § 7401 : Veterans’ Benefits — Veterans Health Administration—Personnel — Appointments — Boards, Administrations, And Services — Appointments In Veterans Health Administration

7 Mar 2017
There may be appointed by the Secretary such personnel as the Secretary may find necessary for the health care of veterans (in addition to those in the Office of the Under Secretary for Health appointed under section 7306 of this title), as follows:

(1) Physicians, dentists, podiatrists, chiropractors, optometrists, registered nurses, physician assistants, and expanded-function dental auxiliaries.

(2) Scientific and professional personnel, such as microbiologists, chemists, and biostatisticians.

(3)

Audiologists, licensed hearing aid specialists, speech pathologists, and audiologist-speech pathologists, biomedical engineers, certified or registered respiratory therapists, dietitians, licensed physical therapists, licensed practical or vocational nurses, nurse assistants, medical instrument technicians, medical records administrators or specialists, medical records technicians, medical technologists, dental hygienists, dental assistants, nuclear medicine technologists, occupational therapists, occupational therapy assistants, kinesiotherapists, orthotist-prosthetists, pharmacists, pharmacy technicians, physical therapy assistants, prosthetic representatives, psychologists, diagnostic radiologic technologists, therapeutic radiologic technologists, social workers, marriage and family therapists, licensed professional mental health counselors, blind rehabilitation specialists, blind rehabilitation outpatient specialists, and such other classes of health care occupations as the Secretary considers necessary for the recruitment and retention needs of the Department subject to the following requirements:
(A)
Such other classes of health care occupations—
(i) are not occupations relating to administrative, clerical, or physical plant maintenance and protective services;
(ii) would otherwise receive basic pay in accordance with the General Schedule under section 5332 of title 5;
(iii) provide, as determined by the Secretary, direct patient care services or services incident to direct patient services; and
(iv) would not otherwise be available to provide medical care or treatment for veterans.
(B) Not later than 45 days before the Secretary appoints any personnel for a class of health care occupations that is not specifically listed in this paragraph, the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate, the Committee on Veterans’ Affairs of the House of Representatives, and the Office of Management and Budget notice of such appointment.
(C) Before submitting notice under subparagraph (B), the Secretary shall solicit comments from any labor organization representing employees in such class and include such comments in such notice.

(Added Pub. L. 102–40, title IV, § 401(b)(2), May 7, 1991, 105 Stat. 222; amended Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 108–170, title III, §§ 301(a)(1), 302(a), Dec. 6, 2003, 117 Stat. 2054, 2057; Pub. L. 108–422, title V, § 502, Nov. 30, 2004, 118 Stat. 2396; Pub. L. 109–461, title II, § 201(a), Dec. 22, 2006, 120 Stat. 3409; Pub. L. 111–163, title VI, § 601(a), May 5, 2010, 124 Stat. 1167; Pub. L. 114–58, title VI, § 601(23), Sept. 30, 2015, 129 Stat. 539; Pub. L. 114–256, § 4(a)(1), Dec. 14, 2016, 130 Stat. 1347.)


Prior Provisions

Provisions similar to those in this section were contained in section 4104 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

2016—Par. (3). Pub. L. 114–256 inserted “licensed hearing aid specialists,” after “Audiologists,” in introductory provisions.

2015—Par. (3)(A)(ii). Pub. L. 114–58 struck out “that” before “would otherwise receive”.

2010—Par. (3). Pub. L. 111–163 inserted “nurse assistants,” after “licensed practical or vocational nurses,”, substituted “blind rehabilitation outpatient specialists, and such other classes of health care occupations as the Secretary considers necessary for the recruitment and retention needs of the Department subject to the following requirements:” for “and blind rehabilitation outpatient specialists.”, and added subpars. (A) to (C).

2006—Par. (3). Pub. L. 109–461 inserted “marriage and family therapists, licensed professional mental health counselors,” after “social workers,”.

2004—Par. (3). Pub. L. 108–422 substituted “technologists, dental hygienists, dental assistants” for “and dental technologists” and “technologists, therapeutic radiologic technologists, social workers, blind rehabilitation specialists, and blind rehabilitation outpatient specialists” for “technicians, therapeutic radiologic technicians, and social workers”.

2003—Pub. L. 108–170, § 302(a)(1), substituted “health” for “medical” in introductory provisions.

Par. (1). Pub. L. 108–170, § 302(a)(2), inserted “chiropractors,” after “podiatrists,”.

Par. (2). Pub. L. 108–170, § 301(a)(1)(A), added par. (2) and struck out former par. (2) which read as follows: “Psychologists (other than those described in paragraph (3)), dietitians, and other scientific and professional personnel, such as microbiologists, chemists, biostatisticians, and medical and dental technologists.”

Par. (3). Pub. L. 108–170, § 301(a)(1)(B), added par. (3) and struck out former par. (3) which read as follows: “Clinical or counseling psychologists who hold diplomas as diplomates in psychology from an accrediting authority approved by the Secretary, certified or registered respiratory therapists, licensed physical therapists, licensed practical or vocational nurses, pharmacists, and occupational therapists.”

1992—Pub. L. 102–405 substituted “Under Secretary for Health” for “Chief Medical Director”.


Effective Date of 2003 Amendment

Amendment by section 302(a) of 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.


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 specialists, the Secretary [of Veterans Affairs] shall ensure that—

“(1) a hearing aid specialist may only perform hearing services consistent with the hearing aid specialist’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-medical 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 audiologist.


“(c) Consultation.— In determining the qualifications required for hearing aid specialists and in carrying 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 determines 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 occupational 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 Administration under such paragraph (3).”