Title 38 History and Introduction
Title 38 for Nurses and Allied Health Employees
Purpose of Authority
Title 38 pay authorities were made available to the National Institutes of Health to ensure that it can be competitive with other healthcare facilities in the recruitment and retention of well-qualified nurses and allied health employees.
Legislative History
The Title 38 system was established in 1946 to facilitate the rapid staffing of veterans’ hospitals at the end of World War II. At the VA, Title 38 represents a separate personnel system for 12 different occupations utilized in the Veterans Health Administration hospitals.
In 1986, in response to a severe staffing shortage at the NIH Clinical Center, an appropriations act (Public Law 99-349) enabled the NIH to begin using specific Title 38 pay authorities for Clinical Center nurses. In 1988 Public Law 100-607 provided the NIH with permanent access to Title 38 pay authorities for nurses and allied health employees throughout the NIH. The NIH authority to use Title 38 authorities is permanently encoded in Title 42, Chapter 6A, Subchapter III, Part B, Section 284c(b) and reads as follows:
- For fiscal year 1989 and subsequent fiscal years, amounts made available to the National Institutes of Health shall be available for payment of nurses and allied health professionals in accordance with payment authorities, scheduling options, benefits, and other authorities provided under chapter 73 (renumbered as Chapter 74) of title 38 for nurses of the Department of Veterans Affairs.
In 1990 Public law 101-366, known as the "VA Nurse Pay Act of 1990" revised some provisions of Title 38; among the most important of these changes was the removal of a previous cap on the rate of overtime. Also in 1990, the Federal Employees Pay Comparability Act (FEPCA) gave the Office of Personnel Management (OPM) the authority to extend selected provisions of Title 38 to Federal health care positions. Although NIH continued to have direct authority to use Title 38 pay provisions, FEPCA meant that other parts of HHS and the Federal government became involved in the interpretation and implementation of various Title 38 pay authorities. As a result, HHS and the Public Health Service (PHS) began to play a larger role in determining policy and approaches to the use of Title 38 authorities at the NIH. In 1995 PHS issued three instructions (Interim PHS Instruction 38-550-1, Title 38 Premium Pay dated 1/7/95, Interim PHS Instruction 38-530-1, Title 38 Special Salary Rates dated 1/5/95, and Interim PHS Instruction 38-100-1, Title 38 General Provisions dated 2/7/95) which established the regulations, policy, and procedures for the use of Title 38 throughout HHS. These instructions remain in effect, with only very slight policy modifications having been made since their issuance.
Implementation in the Clinical Center
When Title 38 pay authorities first became available for use by the NIH in 1986, they could be used only for payment of Clinical Center nurses. When the Title 38 authorities were extended to include allied health employees and nurses throughout the NIH in 1988, Clinical Center and NIH staff worked with HHS officials to determine which occupations would be covered and how and when the authorities would be implemented. A comprehensive occupational coverage list was developed including those allied health occupations which involved direct patient care or services incident to direct patient care; this consisted mainly of occupations in the 600 series, e.g., GS-642, Nuclear Medicine Technologists; GS-644, Medical Technologists, etc. (See the Title 38 Occupational Coverage Chart for a current listing of eligible occupations.) It was also decided that all General Schedule employees in eligible occupations would be covered; this included both permanent and temporary employees whether they were full-time, part-time, or intermittent.
Over the next months and years, specific Title 38 authorities were implemented for all eligible occupations and employees; these included extended night differentials, Sunday differentials, higher overtime rates, and holiday pay. Other authorities were implemented for individual occupations as needed to address particular recruitment and/or retention problems; these included special salary rates, on-call pay, and Saturday differential.
