Exceeding The Federal Pay Scale

The number of people hired by the Department of Health & Human Services under a special authority called Title 42 increased 25% from 2006 to 2010, according to a recent analysis by the Government Accountability Office (GAO-12-692). Title 42 allows government employees to earn salaries that are higher than $155,500—the general federal pay scale limit.

Senior Republicans on the Energy & Commerce Committee in the House of Representatives say HHS is overusing the Title 42 process and treating it as an alternative compensation program, thereby costing taxpayers more money.

HHS claims that it needs Title 42 to attract and retain the best and brightest people in science and medicine. And even though Title 42 employees can earn more than other government employees, most of them do not. GAO found that only about 22% of Title 42 employees at HHS earn more than $155,500.

Title 42 dates back to the Public Health Service Act of 1944. It was initially intended to help fill critical positions in science and medicine in the Public Health Service. Under a 2005 appropriations bill, the Environmental Protection Agency was also given the authority to use Title 42 to hire exceptional scientists and managers.

At a hearing last month of the Energy & Commerce Subcommittee on Health, Robert N. Goldenkoff, director of strategic issues at GAO, provided lawmakers with details about the extent to which HHS and EPA have used Title 42 hiring authority.

In 2010, HHS had 6,697 Title 42 employees (10% of its workforce) and EPA had 17 (less than 1% of its workforce), Golden­koff testified. Nearly all Title 42 employees at HHS work for the National Institutes of Health, the Food & Drug Administration, or the Centers for Disease Control & Prevention.

Of HHS agencies, NIH had the most Title 42 employees—4,879 or 73% of the HHS Title 42 workforce—in 2010. At NIH, 25% of all employees and 44% of all researchers and clinical practitioners were Title 42 employees in 2010, while 6% of FDA employees and 10% of CDC employees had Title 42 status, Goldenkoff noted.

Republican leaders of the subcommittee say those numbers are too high. Title 42 “was intended for special use when there was no other way to hire needed experts. It was never intended to be used as an alternative compensation program,” subcommittee Chairman Joseph R. Pitts (R-Pa.) emphasized at the hearing.

With respect to the overall salary level, Goldenkoff told the subpanel that “the average base salary for all HHS Title 42 employees in 2010 was about $116,000 and the median salary was about $101,000.” But more than one-fifth of Title 42 employees at HHS earned more than $155,500 in 2010, he noted.

At EPA, 15 of the 17 Title 42 employees earned more than $155,500 in 2010. The average 2010 salary of EPA Title 42 employees was $176,000 and the median was $171,000, according to GAO.

Much of the growth in Title 42 appointments at HHS has occurred at CDC, which in 2010 had 929 Title 42 employees. From 2006 to 2010, “the number of Title 42 employees grew by 15% at NIH, by 54% at FDA, and by 81% at CDC, while declining by 48% at the Office of the Secretary and all other HHS operating divisions,” Goldenkoff said.

HHS attributed the increases to urgent public health matters. For example, “the agency used Title 42 authority to quickly hire experts needed to develop a vaccine in response to the H1N1 flu pandemic of 2009,” Goldenkoff said.

During its investigation, GAO discovered that “HHS lacks reliable data to manage and oversee its use of Title 42,” Golden­koff said. “As one example, because of shortcomings with its personnel database, it was difficult for HHS to provide accurate headcounts of Title 42 employees to us and to Congress.”

As a result, part of the audit time was spent cleaning up the database, Goldenkoff told lawmakers. GAO also found that documentation and justification for use of Title 42 was not always consistent with HHS policies, he added.

With respect to EPA, “appointment and compensation practices were generally consistent with its guidance; however, EPA does not have postappointment procedures in place to ensure Title 42 employees meet ethics requirements,” Goldenkoff noted. In particular, GAO found problems at EPA with the enforcement of conflict-of-interest provisions. EPA did not follow up with some Title 42 employees who failed to divest their stock holdings, Goldenkoff said.

GAO recommended that HHS strengthen oversight and management of its Title 42 authority and that EPA improve enforcement of its ethics requirements. “HHS agreed with our recommendations, but EPA disagreed, citing actions it had already taken,” Goldenkoff said.

Democrats at the hearing noted that HHS is already taking steps to tighten up its Title 42 program. “Even prior to this report, HHS has been diligently working on improving its Title 42 hiring process,” Rep. Jan D. Schakowsky (D-Ill.) said. For example, HHS implemented a policy in February to cap Title 42 base salaries at $250,000, she noted.

The salaries of Title 42 employees at HHS and EPA are not out of line with respect to what a comparable scientist would earn in the private sector, Democrat leaders stressed. “A recent Congressional Budget Office report found that federal workers with a professional degree or doctorate earned about 23% less than their counterparts in the private sector,” said Rep. Frank Pallone Jr. (D-N.J.), the ranking Democrat on the subcommittee.

Even so, Republicans used the hearing to promote H.R. 6214, a bill that would strip EPA of its ability to use Title 42, limit the number of employees that HHS can hire under Title 42, and increase congressional oversight of the program.

“Ten percent of all HHS employees are hired under Title 42,” stressed Rep. Joe Barton (R-Texas), who introduced H.R. 6214 in July. “That is not acceptable in a time when we have budget deficits over a trillion dollars every year. Legislation, in my opinion, is needed to rein this in.”

Other lawmakers pointed out that EPA got its authority to use Title 42 under an appropriations bill rather than getting Energy & Commerce Committee authorization. “EPA did an end run around Energy & Commerce and went directly to appropriations asking for authority. This is a congressional jurisdictional issue if there ever was one,” said Rep. Michael C. Burgess (R-Texas).

Burgess introduced a bill (H.R. 2791) last year that he says “codifies the committee’s clear intent that Title 42 is only to be used by HHS.” He thanked Barton at the hearing for also including such language in H.R. 6214.

Democrats on the subcommittee are not in favor of limiting the use of Title 42 by HHS or placing new caps on Title 42 salaries. However, one provision in H.R. 6214—a requirement that HHS provide Congress with an annual report detailing its use of Title 42—does appear to have bipartisan support. “An annual reporting requirement is something I think all of us could agree with and should,” Schakowsky said.