
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 38USC7461]

 
                      TITLE 38--VETERANS' BENEFITS
 
              PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
 
          CHAPTER 74--VETERANS HEALTH ADMINISTRATION--PERSONNEL
 
           SUBCHAPTER V--DISCIPLINARY AND GRIEVANCE PROCEDURES
 
Sec. 7461. Adverse actions: section 7401(1) employees

    (a) Whenever the Under Secretary for Health (or an official 
designated by the Under Secretary for Health) brings charges based on 
conduct or performance against a section 7401(1) employee and as a 
result of those charges an adverse personnel action is taken against the 
employee, the employee shall have the right to appeal the action.
    (b)(1) If the case involves or includes a question of professional 
conduct or competence in which a major adverse action was taken, such an 
appeal shall be made to a Disciplinary Appeals Board under section 7462 
of this title.
    (2) In any other case, such an appeal shall be made--
        (A) through Department grievance procedures under section 7463 
    of this title, in any case that involves or includes a question of 
    professional conduct or competence in which a major adverse action 
    was not taken or in any case of an employee who is not covered by a 
    collective bargaining agreement under chapter 71 of title 5; or
        (B) through grievance procedures provided through collective 
    bargaining under chapter 71 of title 5 or through Department 
    grievance procedures under section 7463 of this title, as the 
    employee elects, in the case of an employee covered by a collective 
    bargaining agreement under chapter 71 of title 5 that does not 
    involve or include a question of professional conduct or competence.

    (c) For purposes of this subchapter--
        (1) Section 7401(1) employees are employees of the Department 
    employed on a full-time basis under a permanent appointment in a 
    position listed in section 7401(1) of this title (other than interns 
    and residents appointed pursuant to section 7406 of this title).
        (2) A major adverse action is an adverse action which includes 
    any of the following:
            (A) Suspension.
            (B) Transfer.
            (C) Reduction in grade.
            (D) Reduction in basic pay.
            (E) Discharge.

        (3) A question of professional conduct or competence is a 
    question involving any of the following:
            (A) Direct patient care.
            (B) Clinical competence.

    (d) An issue of whether a matter or question concerns, or arises out 
of, professional conduct or competence is not itself subject to any 
grievance procedure provided by law, regulation, or collective 
bargaining and may not be reviewed by any other agency.
    (e) Whenever the Secretary proposes to prescribe regulations under 
this subchapter, the Secretary shall publish the proposed regulations in 
the Federal Register for notice-and-comment not less than 30 days before 
the day on which they take effect.

(Added Pub. L. 102-40, title II, Sec. 203(a), May 7, 1991, 105 Stat. 
202; amended Pub. L. 102-405, title III, Sec. 302(c)(1), Oct. 9, 1992, 
106 Stat. 1984.)


                            Prior Provisions

    Provisions similar to those in this subchapter were contained in 
section 4110 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

    1992--Subsec. (a). Pub. L. 102-405 substituted ``Under Secretary for 
Health'' for ``Chief Medical Director'' in two places.


                               Regulations

    Section 204 of Pub. L. 102-40 provided that: ``The Secretary of 
Veterans Affairs shall prescribe regulations under subchapter V of 
chapter 74 of title 38, United States Code (as added by section 203), 
not later than 180 days after the date of the enactment of this Act [May 
7, 1991]. Such regulations shall be published in the Federal Register 
for notice-and-comment not less than 30 days before the day on which 
they take effect.''
