[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2484 Enrolled Bill (ENR)]
S.2484
One Hundred Eighth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twentieth day of January, two thousand and four
An Act
To amend title 38, United States Code, to simplify and improve pay
provisions for physicians and dentists and to authorize alternate work
schedules and executive pay for nurses, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Department of Veterans Affairs
Health Care Personnel Enhancement Act of 2004''.
SEC. 2. REFERENCES TO TITLE 38, UNITED STATES CODE.
Except as otherwise expressly provided, whenever in this Act an
amendment is expressed in terms of an amendment to a section or other
provision, the reference shall be considered to be made to a section or
other provision of title 38, United States Code.
SEC. 3. SIMPLIFICATION AND IMPROVEMENT OF GRADE AND PAY PROVISIONS FOR
PHYSICIANS AND DENTISTS.
(a) Simplification of Grades and Grade Requirements.--(1)
Subsection (b) of section 7404 is amended--
(A) by striking ``(1)'' after ``(b)'';
(B) in the Physician and Dentist Schedule, by striking the
items relating to the grades and inserting the following:
``Physician grade.
``Dentist grade.''; and
(C) by striking paragraph (2).
(2) Subsection (a) of such section is amended by adding at the end
the following: ``The pay of physicians and dentists serving in
positions to which an Executive order applies under the preceding
sentence shall be determined under subchapter III of this chapter
instead of such Executive order.''.
(b) Simplification and Improvement of Pay Authorities.--Subchapter
III of chapter 74 is amended to read as follows:
``SUBCHAPTER III--PAY FOR PHYSICIANS AND DENTISTS
``Sec. 7431. Pay
``(a) Elements of Pay.--Pay of physicians and dentists in the
Veterans Health Administration shall consist of three elements as
follows:
``(1) Base pay as provided for under subsection (b).
``(2) Market pay as provided for under subsection (c).
``(3) Performance pay as provided under subsection (d).
``(b) Base Pay.--One element of pay for physicians and dentists
shall be base pay. Base pay shall meet the following requirements:
``(1) Each physician and dentist is entitled to base pay
determined under the Physician and Dentist Base and Longevity Pay
Schedule.
``(2) The Physician and Dentist Base and Longevity Pay Schedule
is composed of 15 rates of base pay designated, from the lowest
rate of pay to the highest rate of pay, as base pay steps 1 through
15.
``(3) The rate of base pay payable to a physician or dentist is
based on the total number of the years of the service of the
physician or dentist in the Veterans Health Administration as
follows:
``For a physician or dentist
The rate of base pay is
with total service of:
the rate payable for:
two years or less.........................................
step 1
more than 2 years and not more than 4 years...............
step 2
more than 4 years and not more than 6 years...............
step 3
more than 6 years and not more than 8 years...............
step 4
more than 8 years and not more than 10 years..............
step 5
more than 10 years and not more than 12 years.............
step 6
more than 12 years and not more than 14 years.............
step 7
more than 14 years and not more than 16 years.............
step 8
more than 16 years and not more than 18 years.............
step 9
more than 18 years and not more than 20 years.............
step 10
more than 20 years and not more than 22 years.............
step 11
more than 22 years and not more than 24 years.............
step 12
more than 24 years and not more than 26 years.............
step 13
more than 26 years and not more than 28 years.............
step 14
more than 28 years........................................
step 15.
``(4) At the same time as rates of basic pay are increased for
a year under section 5303 of title 5, the Secretary shall increase
the amount of base pay payable under this subsection for that year
by a percentage equal to the percentage by which rates of basic pay
are increased under such section for that year.
``(c) Market Pay.--One element of pay for physicians and dentists
shall be market pay. Market pay shall meet the following requirements:
``(1) Each physician and dentist is eligible for market pay.
``(2) Market pay shall consist of pay intended to reflect the
recruitment and retention needs for the specialty or assignment (as
defined by the Secretary) of a particular physician or dentist in a
facility of the Department of Veterans Affairs.
``(3) The annual amount of the market pay payable to a
physician or dentist shall be determined by the Secretary on a
case-by-case basis.
``(4)(A) In determining the amount of market pay for physicians
or dentists, the Secretary shall consult two or more national
surveys of pay for physicians or dentists, as applicable, whether
prepared by private, public, or quasi-public entities in order to
make a general assessment of the range of pays payable to
physicians or dentists, as applicable.
``(B)(i) In determining the amount of the market pay for a
particular physician or dentist under this subsection, and in
determining a tier (if any) to apply to a physician or dentist
under subsection (e)(1)(B), the Secretary shall consult with and
consider the recommendations of an appropriate panel or board
composed of physicians or dentists (as applicable).
``(ii) A physician or dentist may not be a member of the panel
or board that makes recommendations under clause (i) with respect
to the market pay of such physician or dentist, as the case may be.
``(iii) The Secretary should, to the extent practicable, ensure
that a panel or board consulted under this subparagraph includes
physicians or dentists (as applicable) who are practicing
clinicians and who do not hold management positions in the medical
facility of the Department at which the physician or dentist
subject to the consultation is employed.
``(5) The determination of the amount of market pay of a
physician or dentist shall take into account--
``(A) the level of experience of the physician or dentist
in the specialty or assignment of the physician or dentist;
``(B) the need for the specialty or assignment of the
physician or dentist at the medical facility of the Department
concerned;
``(C) the health care labor market for the specialty or
assignment of the physician or dentist, which may cover any
geographic area the Secretary considers appropriate for the
specialty or assignment;
``(D) the board certifications, if any, of the physician or
dentist;
``(E) the prior experience, if any, of the physician or
dentist as an employee of the Veterans Health Administration;
and
``(F) such other considerations as the Secretary considers
appropriate.
``(6) The amount of market pay of a physician or dentist shall
be evaluated by the Secretary not less often than once every 24
months. The amount of market pay may be adjusted as the result of
an evaluation under this paragraph. A physician or dentist whose
market pay is evaluated under this paragraph shall receive written
notice of the results of such evaluation in accordance with
procedures prescribed under section 7433 of this title.
``(7) No adjustment of the amount of market pay of a physician
or dentist under paragraph (6) may result in a reduction of the
amount of market pay of the physician or dentist while in the same
position or assignment at the medical facility of the Department
concerned.
``(d) Performance Pay.--(1) One element of pay for physicians and
dentists shall be performance pay.
``(2) Performance pay shall be paid to a physician or dentist on
the basis of the physician's or dentist's achievement of specific goals
and performance objectives prescribed by the Secretary.
``(3) The Secretary shall ensure that each physician and dentist of
the Department is advised of the specific goals or objectives that are
to be measured by the Secretary in determining the eligibility of that
physician or dentist for performance pay.
``(4) The amount of the performance pay payable to a physician or
dentist may vary annually on the basis of individual achievement or
attainment of the goals or objectives applicable to the physician or
dentist under paragraph (2).
``(5) The amount of performance pay payable to a physician or
dentist in a fiscal year shall be determined in accordance with
regulations prescribed by the Secretary, but may not exceed the lower
of--
``(A) $15,000; or
``(B) the amount equal to 7.5 percent of the sum of the base
pay and the market pay payable to such physician or dentist in that
fiscal year.
``(6) A failure to meet goals or objectives applicable to a
physician or dentist under paragraph (2) may not be the sole basis for
an adverse personnel action against that physician or dentist.
``(e) Requirements and Limitations on Total Pay.--(1)(A) Not less
often than once every two years, the Secretary shall prescribe for
Department-wide applicability the minimum and maximum amounts of annual
pay that may be paid under this section to physicians and the minimum
and maximum amounts of annual pay that may be paid under this section
to dentists.
``(B) The Secretary may prescribe for Department-wide applicability
under this paragraph separate minimum and maximum amounts of pay for a
specialty or assignment. If the Secretary prescribes separate minimum
and maximum amounts for a specialty or assignment, the Secretary may
establish up to four tiers of minimum and maximum amounts for such
specialty or assignment and prescribe for each tier a minimum amount
and a maximum amount that the Secretary determines appropriate for the
professional responsibilities, professional achievements, and
administrative duties of the physicians or dentists (as the case may
be) whose pay is set within that tier.
``(C) Amounts prescribed under this paragraph shall be published in
the Federal Register, and shall not take effect until at least 60 days
after the date of publication.
``(2) Except as provided in paragraph (3) and subject to paragraph
(4), the sum of the total amount of the annual rate of base pay payable
to a physician or dentist under subsection (b) and the market pay
determined for the physician or dentist under subsection (c) may not be
less than the minimum amount, nor more than the maximum amount,
applicable to specialty or assignment of the physician or dentist under
paragraph (1).
``(3) The sum of the total amount of the annual rate of base pay
payable to a physician or dentist under subsection (b) and the market
pay determined for the physician or dentist under subsection (c) may
exceed the maximum amount applicable to the specialty or assignment of
the physician or dentist under paragraph (1) as a result of an
adjustment under paragraph (3) or (4) of subsection (b).
``(4) In no case may the total amount of compensation paid to a
physician or dentist under this title in any year exceed the amount of
annual compensation (excluding expenses) specified in section 102 of
title 3.
``(f) Treatment of Pay.--Pay under subsections (b) and (c) of this
section shall be considered pay for all purposes, including retirement
benefits under chapters 83 and 84 of title 5 and other benefits.
``(g) Ancillary Effects of Decreases in Pay.--(1) A decrease in pay
of a physician or dentist resulting from an adjustment in the amount of
market pay of the physician or dentist under subsection (c) shall not
be treated as an adverse action.
``(2) If the pay of a physician or dentist is reduced under this
subchapter as a result of an involuntary reassignment in connection
with a disciplinary action taken against the physician or dentist, the
involuntary reassignment shall be subject to appeal under subchapter V
of this chapter.
``(h) Delegation of Responsibilities.--The Secretary may delegate
to an appropriate officer or employee of the Department any
responsibility of the Secretary under subsection (c), (d), or (e)
except for the responsibilities of the Secretary under subsection
(e)(1).
``Sec. 7432. Pay of Under Secretary for Health
``(a) Base Pay.--The base pay of the Under Secretary for Health
shall be the annual rate of basic pay for positions at Level III of the
Executive Schedule under section 5314 of title 5.
``(b) Market Pay.--(1) In the case of an Under Secretary for Health
who is also a physician or dentist, in addition to the base pay
specified in subsection (a) the Under Secretary for Health may also be
paid the market pay element of pay of physicians and dentists under
section 7431(c) of this title.
``(2) The amount of market pay of the Under Secretary for Health
under this subsection shall be established by the Secretary.
``(3) In establishing the amount of market pay of the Under
Secretary for Health under this subsection, the Secretary shall utilize
an appropriate health care labor market selected by the Secretary for
purposes of this subsection.
``(c) Treatment of Pay.--Pay under this section shall be considered
pay for all purposes, including retirement benefits under chapters 83
and 84 of title 5 and other benefits.
``Sec. 7433. Administrative matters
``(a) Regulations.--(1) The Secretary shall prescribe regulations
relating to the pay of physicians and dentists in the Veterans Health
Administration under this subchapter.
``(2) In prescribing the regulations, the Secretary shall take into
account the recommendations of the Under Secretary for Health on the
administration of this subchapter. In formulating recommendations for
the purpose of this paragraph, the Under Secretary shall request the
views of representatives of labor organizations that are exclusive
representatives of physicians and dentists of the Department and the
views of representatives of professional organizations of physicians
and dentists of the Department.
``(b) Reports.--(1) Not later than 18 months after the Secretary
prescribes the regulations required by subsection (a), and annually
thereafter for the next 5 years, the Secretary shall submit to the
Committees on Veterans' Affairs of the Senate and House of
Representatives a report on the pay of physicians and dentists in the
Veterans Health Administration under this subchapter.
``(2) Each report under this subsection shall include the
following:
``(A) A description of the rates of pay in effect during the
current fiscal year with a comparison to the rates in effect during
the fiscal year preceding the current fiscal year, set forth by
facility and by specialty.
``(B) The number of physicians and dentists who left the
Veterans Health Administration during the preceding fiscal year.
``(C) The number of unfilled physician positions and dentist
positions in each specialty in the Veterans Health Administration,
the average and maximum lengths of time that such positions have
been unfilled, and an assessment of the reasons that such positions
remain unfilled.
``(D) An assessment of the impact of implementation of this
subchapter on efforts to recruit and retain physicians and dentists
in the Veterans Health Administration.
``(3) The first two annual reports under this subsection shall also
include a comparison of staffing levels, contract expenditures, and
average salaries of physicians and dentists in the Veterans Health
Administration for the current fiscal year and for the fiscal year
preceding the current fiscal year, set forth by facility and by
specialty.''.
(c) Initial Rates of Base Pay for Physicians and Dentists.--The
initial rates of base pay established for the base pay steps under the
Physician and Dentist Base and Longevity Pay Schedule provided in
section 7431(b) of title 38, United States Code (as added by subsection
(b)), are as follows:
Base Pay Step:
Rate of Pay:
1.........................................................
$90,000
2.........................................................
$93,000
3.........................................................
$96,000
4.........................................................
$99,000
5.........................................................
$102,000
6.........................................................
$105,000
7.........................................................
$108,000
8.........................................................
$111,000
9.........................................................
$114,000
10........................................................
$117,000
11........................................................
$120,000
12........................................................
$123,000
13........................................................
$126,000
14........................................................
$129,000
15........................................................
$132,000.
(d) Effective Date.--(1) Notwithstanding the 60-day waiting
requirement in section 7431(e)(1)(C) of title 38, United States Code
(as amended by subsection (b)), pay provided for a physician or dentist
under subchapter III of chapter 74 of such title, as amended by
subsection (b), shall take effect on the first day of the first pay
period applicable to such physician or dentist that begins on or after
January 1, 2006.
(2) Pay provided for the Under Secretary for Health under
subchapter III of chapter 74 of title 38, United States Code, as
amended by this section shall take effect on the first day of the first
pay period applicable to the Under Secretary that begins on or after
January 1, 2006.
(e) Transition Provisions.--
(1) Physicians and dentists.--
(A) Pay.--(i) The amount of the pay payable on and after
the date of the enactment of this Act to a physician or dentist
in receipt of pay under section 7404 or 7405 of title 38,
United States Code, as of the day before such date shall
continue to be determined under such section (as in effect on
the day before such date) until the effective date that is
applicable under subsection (d) to such physician or dentist,
as the case may be.
(ii) A physician or dentist appointed or reassigned on or
after the date of the enactment of this Act, but before the
effective date applicable under subsection (d) to such
physician or dentist, shall be compensated in accordance with
applicable provisions of section 7404 or 7405 of title 38,
United States Code (as in effect on the day before date of the
enactment of this Act), until such effective date.
(B) Special pay.--(i) A special pay agreement entered into
by a physician or dentist under subchapter III of chapter 74 of
title 38, United States Code, before the date of the enactment
of this Act shall terminate on the date of the enactment of
this Act. However, a physician or dentist in receipt of special
pay pursuant to such an agreement on that date shall continue
to receive special pay under the terms of such agreement until
the effective date that is applicable under subsection (d) to
such physician or dentist.
(ii) A physician or dentist described in subparagraph
(A)(ii) may be paid special pay under applicable provisions of
section 7433, 7434, 7435, or 7436 of title 38, United States
Code (as in effect on the day before the date of the enactment
of this Act), during the period beginning on the date of the
appointment or reassignment of such physician or dentist, as
the case may be, and ending on the effective date applicable
under subsection (d) to such physician or dentist. However, no
special pay agreement shall be required for the payment of
special pay under this clause.
(C) Treatment of special pay.--(i) Special pay paid under
subparagraph (B) to a physician or dentist during the period
beginning on the date of the enactment of this Act and ending
on the effective date applicable under subsection (d) to such
physician or dentist shall be subject to the provisions of
paragraphs (1), (2), (4), (5), and (6) of section 7438(b) of
title 38, United States Code (as in effect on the day before
the date of the enactment of this Act).
(ii) Special pay paid to a physician or dentist under
section 7438 of title 38, United States Code (as in effect on
the day before the date of the enactment of this Act), shall be
fully creditable for purposes of computing benefits under
chapters 83 and 84 of title 5, United States Code.
(D) Preservation of pay.--The amount of pay paid to a
physician or dentist after the effective date of this Act shall
not be less than the amount of pay paid to such physician or
dentist on the day before the effective date of this Act while
such physician or dentist remains in the same position or
assignment.
(2) Under secretary for health.--
(A) Special pay.--(i) The current special pay agreement
entered into by the Under Secretary for Health under
subchapters I and III of chapter 74 of title 38, United States
Code, before the date of the enactment of this Act shall
terminate on the date of the enactment of this Act. However,
the Under Secretary shall continue to receive special pay under
the terms of such agreement until the effective date that is
applicable under subsection (d) to the Under Secretary.
(ii) An individual appointed as Under Secretary for Health
on or after the date of the enactment of this Act and before
the effective date applicable under subsection (d) to the Under
Secretary shall be paid special pay in accordance with the
provisions of sections 7432(d)(2) and 7433 of title 38, United
States Code (as in effect on the day before the date of the
enactment of this Act), during the period beginning on the date
of appointment and ending on such effective date. However, no
special pay agreement shall be required for the payment of
special pay under this clause.
(B) Treatment of special pay.--Special pay paid under
subparagraph (A) during the period beginning on the date of the
enactment of this Act and ending on the effective date
applicable under subsection (d) to the Under Secretary--
(i) shall be subject to the provisions of paragraphs
(1), (2), (4), (5), and (6) of section 7438(b) of title 38,
United States Code (as in effect on the day before the date
of the enactment of this Act); and
(ii) shall be fully creditable for purposes of
computing benefits under chapters 83 and 84 of title 5,
United States Code.
(f) Conforming Amendments.--Section 7404 is amended--
(1) in subsection (c), by striking ``special pay'' and
inserting ``pay''; and
(2) in subsection (d), by striking ``pay may not be paid'' and
all that follows and inserting ``pay for positions for which basic
pay is paid under this section may not be paid at a rate in excess
of the rate of basic pay authorized by section 5316 of title 5 for
positions in Level V of the Executive Schedule.''.
(g) Clerical Amendment.--The table of sections at the beginning of
chapter 74 is amended by striking the items relating to subchapter III
and inserting the following new items:
``SUBCHAPTER III--PAY FOR PHYSICIANS AND DENTISTS
``Sec. 7431. Pay.
``Sec. 7432. Pay of Under Secretary for Health.
``Sec. 7433. Administrative matters.''.
SEC. 4. ALTERNATE WORK SCHEDULES FOR REGISTERED NURSES.
(a) In General.--(1) Chapter 74 is amended by inserting after
section 7456 the following new section:
``Sec. 7456A. Nurses: alternate work schedules
``(a) Applicability.--This section applies to registered nurses
appointed under this chapter.
``(b) 36/40 Work Schedule.--(1)(A) Subject to paragraph (2), if the
Secretary determines it to be necessary in order to obtain or retain
the services of registered nurses at any Department health-care
facility, the Secretary may provide, in the case of nurses employed at
such facility, that such nurses who work three regularly scheduled 12-
hour tours of duty within a work week shall be considered for all
purposes to have worked a full 40-hour basic work week.
``(B) A nurse who works under the authority in subparagraph (A)
shall be considered a 0.90 full-time equivalent employee in computing
full-time equivalent employees for the purposes of determining
compliance with personnel ceilings.
``(2)(A) Basic and additional pay for a nurse who is considered
under paragraph (1) to have worked a full 40-hour basic work week shall
be subject to subparagraphs (B) and (C).
``(B) The hourly rate of basic pay for a nurse covered by this
paragraph for service performed as part of a regularly scheduled 36-
hour tour of duty within the work week shall be derived by dividing the
nurse's annual rate of basic pay by 1,872.
``(C) The Secretary shall pay overtime pay to a nurse covered by
this paragraph who--
``(i) performs a period of service in excess of such nurse's
regularly scheduled 36-hour tour of duty within an administrative
work week;
``(ii) for officially ordered or approved service, performs a
period of service in excess of 8 hours on a day other than a day on
which such nurse's regularly scheduled 12-hour tour of duty falls;
``(iii) performs a period of service in excess of 12 hours for
any day included in the regularly scheduled 36-hour tour of duty
work week; or
``(iv) performs a period of service in excess of 40 hours
during an administrative work week.
``(D) The Secretary may provide a nurse to whom this subsection
applies with additional pay under section 7453 of this title for any
period included in a regularly scheduled 12-hour tour of duty.
``(3) A nurse who works a work schedule described in this
subsection who is absent on approved sick leave or annual leave during
a regularly scheduled 12-hour tour of duty shall be charged for such
leave at a rate of ten hours of leave for every nine hours of absence.
``(c) Holiday Pay.--A nurse working a work schedule under
subsection (b) that includes a holiday designated by law or Executive
order shall be eligible for holiday pay under section 7453(d) of this
title for any service performed by the nurse on such holiday under such
section.
``(d) 9-Month Work Schedule for Certain Nurses.--(1) The Secretary
may authorize a registered nurse appointed under section 7405 of this
title, with the nurse's written consent, to work full time for nine
months with 3 months off duty, within a fiscal year, and be paid at 75
percent of the full-time rate for such nurse's grade for each pay
period of such fiscal year.
``(2) A nurse who works under the authority in paragraph (1) shall
be considered a 0.75 full-time equivalent employee in computing full-
time equivalent employees for the purposes of determining compliance
with personnel ceilings.
``(3) Work under this subsection shall be considered part-time
service for purposes of computing benefits under chapters 83 and 84 of
title 5.
``(4) A nurse who works under the authority in paragraph (1) shall
be considered a full-time employee for purposes of chapter 89 of title
5.
``(e) Notification of Modification of Benefits.--The Secretary
shall provide each employee with respect to whom an alternate work
schedule under this section may apply written notice of the effect, if
any, that the alternate work schedule will have on the employee's
health care premium, retirement, life insurance premium, probationary
status, or other benefit or condition of employment. The notice shall
be provided not later than 14 days before the employee consents to the
alternate work schedule.
``(f) Regulations.--The Secretary shall prescribe regulations to
carry out this section.''.
(2) The table of sections at the beginning of chapter 74 is amended
by inserting after the item relating to section 7456 the following new
item:
``Sec. 7456A. Nurses: alternate work schedules.''.
(b) Policy Against Certain Work Hours.--(1) It is the sense of
Congress to encourage the Secretary of Veterans Affairs to prevent work
hours by nurses providing direct patient care in excess of 12
consecutive hours or in excess of 60 hours in any 7-day period, except
in the case of nurses providing emergency care.
(2) Not later than one year after the date of the enactment of this
Act and every year thereafter for the next two years, the Secretary
shall certify to Congress whether or not each Veterans Health
Administration facility has in place, as of the date of such
certification, a policy designed to prevent work hours by nurses
providing direct patient care (other than nurses providing emergency
care) in excess of 12 consecutive hours or in excess of 60 hours in any
7-day period.
SEC. 5. NURSE EXECUTIVE SPECIAL PAY.
Section 7452 is amended by adding at the end the following new
subsection:
``(g)(1) In order to recruit and retain highly qualified Department
nurse executives, the Secretary may, in accordance with regulations
prescribed 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 $25,000.
``(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 difficulties in recruitment and retention of nurse
executives at the health care facility concerned, and such other
factors as the Secretary considers 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 retirement benefits under
chapters 83 and 84 of title 5, and other benefits, but shall not be
considered basic pay for purposes of adverse actions under subchapter V
of this chapter.''.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.