What Do Healthcare Professionals Need to Know About Title 38?
As a healthcare professional working in the federal sector, your rights are different from the rights of other federal employees. Ensuring that you have a clear understanding of your rights is important—as you need to make sure you know what to do in the event that you experience discrimination, harassment or unjustified disciplinary action on the job.
Healthcare professionals’ rights are unique because they are covered under a law known as Title 38. This is a section of the U.S. Code that applies specifically to designated types of healthcare professionals. Title 38 governs matters including:
- Probationary employment
- Compensation and advancement
- Investigations and disciplinary action
- Hearings and appeals
- Harassment and discrimination claims
So, if you are a healthcare professional and you currently work for a federal agency—or if you are considering a job in the federal government—what do you need to know about your rights to Title 38? Here’s an overview:
5 Key Facts About Federally Employed Healthcare Professionals’ Rights Under Title 38
1. “Pure Title 38” vs. “Hybrid Title 38” Healthcare Professionals
The first thing to know is that there are two different types of Title 38 federal employees: “pure Title 38” and “hybrid Title 38” healthcare professionals.
If you are a pure Title 38 employee, your rights with respect to all of the issues listed above are covered under the statute. But, if you are a hybrid Title 38 employee, then some of your rights are covered under Title 5. This is another section of the U.S. Code that applies to federal employees generally (although there are exceptions here as well). Title 5 governs pay, overtime and certain other matters, and federal employees’ rights under Title 5 and Title 38 can be very different. As a result, it is important to make sure you know whether you are a pure or hybrid federal worker so that you can make informed decisions about asserting your rights when necessary.
How do you know whether you are a pure Title 38 or hybrid Title 38 healthcare professional? Pure Title 38 healthcare professionals include:
- Expanded-function dental auxiliary (EFDA) healthcare professionals
- Nurse anesthetists
- Physician assistants
If you are a healthcare professional and your specific profession is not included on this list, then you will most likely be classified as a hybrid Title 38 federal employee.
2. Protecting Your Rights Under Title 38
As a healthcare professional working for a federal agency such as the U.S. Department of Veterans Affairs (VA) or National Institutes of Health (NIH), there are two primary circumstances in which you may need to protect your rights under Title 38:
- You need to defend against or appeal a disciplinary action or other adverse employment action; or,
- You need to file a claim for harassment, discrimination or another violation of your rights under Title 38.
While both of these scenarios fall under Title 38, they are very different. If you are facing disciplinary action or other adverse employment action, you will need to hire a lawyer to protect you during the agency’s investigation (if the investigation is still ongoing) and represent you before the Administrative Investigation Board (AIB), Medical Center Director or Disciplinary Appeals Board (DAB). Depending on the outcome of this proceeding, you may also need your lawyer to file an appeal in federal district court. If you need to file a claim for harassment, discrimination or another violation of your rights under Title 38, then the specific steps you need to take will depend on the specific violation (or violations) involved.
3. Protecting Your Rights Under Other Federal Employment Laws
Although Title 38 governs many of your rights as a healthcare professional working for a federal agency, you still have rights under certain other federal employment laws as well. For example, even if you are a pure Title 38 worker, the following laws still protect you:
- Administrative Procedures Act (APA)
- Age Discrimination in Employment Act (ADEA)
- Rehabilitation Act of 1973 (which extends many of the protections of the Americans with Disabilities Act (ADA) to federal employees)
- Title VII of the Civil Rights Act of 1964
Title 38 and these other federal employment laws can overlap in certain respects. For example, while Title 38 covers harassment and discrimination claims, these claims may also fall under the ADEA, Rehabilitation Act or Title VII. As a result, if you are a Title 38 healthcare professional and you need to file one of these types of claims, it will be important for you to work with a lawyer who has specific experience representing federally employed healthcare professionals.
4. Protecting Your Rights Proactively Can Be Less Difficult (and Less Expensive) Than Filing an Appeal
If you need to challenge a disciplinary action or other adverse employment action (i.e., a reprimand, suspension, demotion or removal) under Title 38, it is best to do so proactively if possible. While federal employees can challenge final agency actions under Title 38 and the APA, it is generally less difficult (and less expensive) to hire a lawyer to help you avoid this type of action. With this in mind, if you have concerns about protecting your current position or your employment with the federal government, we strongly recommend that you speak with a lawyer as soon as possible.
5. You Should Not Hesitate to Seek Advice if You Have Questions
If you have questions about your rights under Title 38 as a federally employed healthcare professional, you should not hesitate to seek advice from a lawyer. Understanding your rights can be complicated, and, unfortunately, you can’t always rely on your agency to provide the information you need. A lawyer who has experience with Title 38 can advise you with your best interests in mind, and your lawyer can help you make informed decisions about your next steps.