[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
            TITLE 42: A REVIEW OF SPECIAL HIRING AUTHORITIES 

=======================================================================

                                HEARING

                               BEFORE THE

                         SUBCOMMITTEE ON HEALTH

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 14, 2012

                               __________

                           Serial No. 112-178


      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov

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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman

JOE BARTON, Texas                    HENRY A. WAXMAN, California
  Chairman Emeritus                    Ranking Member
CLIFF STEARNS, Florida               JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky                 Chairman Emeritus
JOHN SHIMKUS, Illinois               EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania        EDOLPHUS TOWNS, New York
MARY BONO MACK, California           FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon                  BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska                  ANNA G. ESHOO, California
MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina   GENE GREEN, Texas
  Vice Chairman                      DIANA DeGETTE, Colorado
JOHN SULLIVAN, Oklahoma              LOIS CAPPS, California
TIM MURPHY, Pennsylvania             MICHAEL F. DOYLE, Pennsylvania
MICHAEL C. BURGESS, Texas            JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee          CHARLES A. GONZALEZ, Texas
BRIAN P. BILBRAY, California         TAMMY BALDWIN, Wisconsin
CHARLES F. BASS, New Hampshire       MIKE ROSS, Arkansas
PHIL GINGREY, Georgia                JIM MATHESON, Utah
STEVE SCALISE, Louisiana             G.K. BUTTERFIELD, North Carolina
ROBERT E. LATTA, Ohio                JOHN BARROW, Georgia
CATHY McMORRIS RODGERS, Washington   DORIS O. MATSUI, California
GREGG HARPER, Mississippi            DONNA M. CHRISTENSEN, Virgin 
LEONARD LANCE, New Jersey            Islands
BILL CASSIDY, Louisiana              KATHY CASTOR, Florida
BRETT GUTHRIE, Kentucky              JOHN P. SARBANES, Maryland
PETE OLSON, Texas
DAVID B. McKINLEY, West Virginia
CORY GARDNER, Colorado
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia

                                 _____

                         Subcommittee on Health

                     JOSEPH R. PITTS, Pennsylvania
                                 Chairman
MICHAEL C. BURGESS, Texas            FRANK PALLONE, Jr., New Jersey
  Vice Chairman                        Ranking Member
ED WHITFIELD, Kentucky               JOHN D. DINGELL, Michigan
JOHN SHIMKUS, Illinois               EDOLPHUS TOWNS, New York
MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina   LOIS CAPPS, California
TIM MURPHY, Pennsylvania             JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee          CHARLES A. GONZALEZ, Texas
PHIL GINGREY, Georgia                TAMMY BALDWIN, Wisconsin
ROBERT E. LATTA, Ohio                MIKE ROSS, Arkansas
CATHY McMORRIS RODGERS, Washington   JIM MATHESON, Utah
LEONARD LANCE, New Jersey            HENRY A. WAXMAN, California (ex 
BILL CASSIDY, Louisiana                  officio)
BRETT GUTHRIE, Kentucky
JOE BARTON, Texas
FRED UPTON, Michigan (ex officio)

                                  (ii)



                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Joseph R. Pitts, a Representative in Congress from the 
  Commonwealth of Pennsylvania, opening statement................     1
    Prepared statement...........................................     3
Hon. Michael C. Burgess, a Representative in Congress from the 
  State of Texas, opening statement..............................     4
Hon. Frank Pallone, Jr., a Representative in Congress from the 
  State of New Jersey, opening statement.........................     5
Hon. Joe Barton, a Representative in Congress from the State of 
  Texas, opening statement.......................................     6
Hon. Janice D. Schakowsky, a Representative in Congress from the 
  State of Illinois, opening statement...........................     8
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, prepared statement..............................    64

                               Witnesses

Robert Goldenkoff, Director, Strategic Issues, Government 
  Accountability Office..........................................     9
    Prepared statement \1\
Robert J. Cramer, Managing Associate General Counsel, Government 
  Accountability Office..........................................    10
    Prepared statement...........................................    12

                           Submitted Material

Human Resources Manual, Instruction 42-1, dated February 15, 
  2012, Department of Health and Human Services, submitted by Mr. 
  Pallone........................................................    49
Hearing memorandum...............................................    66
Report, dated July 2012, ``Human Capital: HHS and EPA Can Improve 
  Practices Under Special Hiring Authorities,'' Government 
  Accountability Office..........................................    69
Letter, dated July 11, 2012, from Lynn H. Gibson, General 
  Counsel, Government Accountability Office, to Hon. Denny 
  Rehberg, et al.................................................   121

----------
\1\ Mr. Goldenkoff and Mr. Cramer submitted a joint statement for 
  the record.


            TITLE 42: A REVIEW OF SPECIAL HIRING AUTHORITIES

                              ----------                              


                       FRIDAY, SEPTEMBER 14, 2012

                  House of Representatives,
                            Subcommittee on Health,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:00 a.m., in 
room 2123, Rayburn House Office Building, Hon. Joseph R. Pitts 
(chairman of the subcommittee), presiding.
    Members present: Representatives Pitts, Burgess, Shimkus, 
Gingrey, Latta, McMorris Rodgers, Barton, Pallone, and 
Schakowsky.
    Staff present: Brenda Destro, Professional Staff Member, 
Health; Debbee Keller, Press Secretary; Katie Novaria, 
Legislative Clerk; Krista Rosenthall, Counsel to Chairman 
Emeritus; Alan Slobodin, Deputy Chief Counsel, Oversight; Heidi 
Stirrup, Health Policy Coordinator; Alli Corr, Democratic 
Policy Analyst; Ruth Katz, Democratic Chief Public Health 
Counsel; and Anne Morris Reid, Democratic Professional Staff 
Member.

OPENING STATEMENT OF HON. JOSEPH R. PITTS, A REPRESENTATIVE IN 
         CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA

    Mr. Pitts. The time of 10 o'clock having arrived, the 
subcommittee will come to order.
    The chair recognizes himself for 5 minutes for an opening 
statement.
    Title 42 of the Public Health Service Act provides 
authority to appoint and set pay for difficult-to-fill, 
critical scientific and medical positions in the Public Health 
Service. The Department of Health and Human Services uses this 
authority, which allows them to pay individuals above the 
salary limits of other government employees, to attract and 
retain topnotch scientists and researchers who might otherwise 
go into academia or the private sector.
    Clearly, the Secretary needs some flexibility to attract 
and retain the best and brightest in science and medicine, but 
these authorities should be limited and transparent.
    Laws passed by Congress and regulations promulgated since 
the 1930s and 1940s show that the program 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. Yet, in 2010, almost 7,000 employees at HHS were 
appointed using Title 42 authority, a 25 percent increase over 
5 years. Some of those annual salaries have reached levels 
higher than $350,000.
    HHS has recently moved to lower the caps on these salaries, 
yet the Secretary of HHS can still approve pay levels higher 
than the caps, which may give her more hiring and compensation 
authority than anyone else in the Federal Government.
    In 2005, the Environmental Protection Agency began hiring 
experts using the Title 42 authority, once again, to fill 
critical science positions. Now, 15 of the 17 positions at the 
EPA are paid at or above Executive Level 4.
    The extensive use of Title 42 and the unprecedented 
authority of the Secretary to compensate some experts at 
extraordinarily high rates led the committee to ask the GAO to 
analyze the laws that govern Title 42 and audit its use at HHS 
and the EPA. Today, we have asked GAO to share the results of 
that study.
    Congressman Joe Barton has introduced H.R. 6214, the HHS 
Employee Compensation Reform Act of 2012, which makes simple, 
commonsense changes to the use of Title 42 authorities. It 
limits the use of Title 42 authority to HHS; caps the number of 
Title 42 hires to 5 percent of the total number of employees at 
HHS; ensures that compensation may not exceed 150 percent of 
Executive Level 1; allows up to 50 employees to be paid without 
regard to compensation limitation if the Secretary determines 
the position is vital; and requires a report to Congress 6 
months after enactment. I commend Mr. Barton for his work on 
this issue.
    And I would like, at this time, to yield the remainder of 
my time to Dr. Burgess.
    [The prepared statement of Mr. Pitts follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A REPRESENTATIVE 
              IN CONGRESS FROM THE STATE OF TEXAS

    Mr. Burgess. Thank you, Mr. Chairman.
    Title 42 is a special hiring provision that Congress 
explicitly gave to HHS through the Public Health Services to 
allow HHS to attract the best and brightest. Many of these men 
and women hired under Title 42 could easily be making three or 
four times what they make working in the public sector but have 
chosen to dedicate their work to government service. Because of 
the salary constraints under normal Title 5 hiring practices, 
HHS's hands were tied as to what it could offer to leaders of 
these fields to attract them to HHS.
    This program began with noble purposes and continues to be 
an important recruitment tool for HHS, the agency that Congress 
intended to be using it. It should come as no surprise that the 
minute other Federal agencies heard of this higher salary 
structure, they came to Congress asking for authority to pay 
themselves more. It would be one thing if these agencies had 
come to this committee, the authorizing committee, which wrote 
the Title 42 statute to begin with. Instead, the EPA did an end 
run around Energy and Commerce and went directly to 
Appropriations asking for the authority.
    Every member of this committee should be shocked and 
outraged that an agency under our jurisdiction chose to ignore 
our authority as the authorizing committee for such hires. This 
is a congressional jurisdictional issue if there ever was one. 
Not only did the EPA do the end run for years, but in oversight 
hearing after oversight hearing they would refuse to give us 
information as to their hiring practices. It is a precedent 
that has been set, and what is to stop every Federal agency, 
every Federal bureaucracy from doing the same thing?
    I introduced earlier this Congress H.R. 2791, the Health 
and Human Services Hiree Clarification Act, which codifies this 
committee's clear intent that Title 42 is only to be used by 
officials at HHS--not EPA, not Department of Labor, and not the 
Park Service. I am happy to see that Mr. Barton has included 
language from this legislation in his bill, as well. If other 
agencies believe so strongly that they need a special hiring 
authority, come to the authorizers, justify their request, and 
do it as regular order dictates.
    This hearing is long overdue. I thank the chairman for the 
consideration. I will yield back balance of my time.
    Mr. Pitts. The chair thanks the gentleman and recognizes 
the ranking member, Mr. Pallone, for 5 minutes for an opening 
statement.
    Mr. Pallone. Thank you, Mr. Chairman.
    I wanted to ask unanimous consent to include in the record 
the statement of our ranking member, Henry Waxman.
    Mr. Pitts. Without objection, so ordered.
    [The prepared statement of Mr. Waxman appears at the 
conclusion of the hearing.]

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF NEW JERSEY

    Mr. Pallone. Today, we are here to discuss a special hiring 
authority available to the Department of Health and Human 
Services which is informally known as Title 42. The statute was 
created nearly 70 years ago to help the government recruit and 
retain the best and the brightest individuals in medicine, 
science, and other important fields.
    While we all wish it would be the case, a sense of civic 
duty is not always enough. This is something that I can 
certainly sympathize with, as I am sure many Members of 
Congress can, too. Young people want to come and dedicate their 
lives to public service, but sometimes the salary of Congress 
simply does not compete with the private sector. And that is 
why the House Administration created the Student Loan Repayment 
Program, which serves as an incentive to recruit and retain 
bright, young professionals to work for us in Congress.
    But, today, we will specifically hear from GAO about the 
recent studies that shed light on improvements that can be made 
to the Title 42 process. In fact, HHS even recognized the need 
to examine their hiring practice on their own prior to GAO, and 
they started an internal review back in 2010. They also 
currently implement a number of changes in response to this 
study and support its recommendations.
    But I just wanted to say to my colleagues, let's tread 
carefully during this discussion. We must not react negatively 
simply for politics' sake. It is good to be concerned, and it 
is certainly fair for this committee to maintain its oversight 
responsibilities, but this statute has been used by Democrats 
and Republicans alike, and it is critical to the quality and 
caliber of the work of the Department.
    If we were to somehow restrict HHS's good work that has 
come about because of Title 42, we could be doing serious harm 
to the research in this country, both in terms of our ability 
to respond to public health emergencies like H1N1 and to drive 
toward the scientific breakthroughs like sequencing the human 
genome.
    The agencies listed in the GAO report are devoted to 
enhancing health, lengthening life, and reducing the burdens of 
illness and disability, as well as protecting all Americans 
from significant risks, whether these risks are from illness, 
the environment, or bioterrorism.
    NIH, as we know, is the premier biomedical research 
institute in the world. CDC, also an agency listed in the 
report, is globally renowned as a leader in disease prevention 
and health equity. Without dedicated funding of these agencies 
and top talent within their ranks, the U.S. would not be the 
leader in the biomedical and pharmaceutical industry, the 
global leader in disease prevention and public health, or a 
leader in the fight against devastating diseases such as 
cancer, obesity, and HIV.
    Now, using NIH as an example, NIH is the driving force 
behind the biomedical research that has advanced and continues 
to improve the health of Americans and grow the U.S. Economy. 
Thanks in large part to NIH research, Americans are living 
longer, living healthier, and suffering less from morbidity and 
mortality of countless diseases when compared to the past. Not 
only has the general health of the Nation been improved, but 
these gains have added an estimated $3.2 trillion annually to 
the U.S. economy since 1970.
    Yet it seems that we continue to ask NIH and CDC to do more 
with less. In the current climate, we are doing well if the 
budgets of these agencies just stay the same. Our reliance on 
their service has grown as new public health and environmental 
threats emerge and the burden of disease grows.
    NIH employs nearly 19,300 civil servants in its workforce. 
Of those who are hired under Title 42, 44 percent are 
researchers and clinicians, and less than 2 percent of all NIH 
employees are paid above the general Federal schedule.
    Meanwhile, the American Academy of Medical Colleges 
releases an annual report which describes compensation for 
professionals in the medical and research fields. And consider 
that an associate professor in radiology can make $430,000, 
while a department chair can make over $650,000 per year, a 
professor in plastic surgery can make over $650,000, and the 
department chief, more than $800,000.
    HHS's current policy caps compensation at $275,000 unless 
an exception is approved by the Secretary. And a recent CBO 
report found that Federal workers with a professional degree or 
doctorate, which is currently a requirement for Title 42, 
earned about 23 percent less than their counterparts in the 
private sector.
    I just think it is important to keep in mind the types of 
people we would be affecting if we restrict Title 42. Let me 
mention Dr. Fauci, director of the National Institute of 
Allergy and Infectious Disease at NIH. He is the recipient of 
the Presidential Medal of Freedom, has been fighting a battle 
against HIV and AIDS since the epidemic began. He is recognized 
around the world as one of the greatest scientific minds of our 
generation. In 2003, there was an Institute for Scientific 
Information study that showed that over the 20-year period from 
1983 to 2002, Dr. Fauci was the 13th most cited scientist among 
2.5 million to 3 million authors in all disciplines and that he 
was the 10th most cited HIV-AIDS researcher in the period 1996 
to 2006. And he is compensated under Title 42.
    So I am just pointing out that we really have to be careful 
what we do here. I look forward to the discussion. I welcome 
our witnesses. I thank the Department, you know, for their 
input on this. But I do think we have to watch what we do, 
because I am concerned that we do not want to lose the best and 
the brightest.
    Thank you, Mr. Chairman.
    Mr. Pitts. The chair thanks the gentleman and now 
recognizes the chair emeritus of the full committee, Mr. 
Barton, 5 minutes foran opening statement.

   OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Barton. Thank you, Chairman Pitts. And I want to thank 
you and your staff and Dr. Burgess and his staff and Chairman 
Upton and his staff and my staff for working so diligently on 
this issue.
    The ranking member, my good friend from New Jersey, Mr. 
Pallone's opening statement I thought was very good. He didn't 
state it, but he said that this might be about politics. Well, 
it is not. We have been investigating this for 3 years. You 
know, it is to Chairman Upton's credit and Chairman Pitts' 
credit that we finally have a full hearing just on this, 
unfortunately on a day when we have a bill on the floor that a 
lot of our members are engaged with concerning Solyndra.
    But this is an important issue. We do want the best and the 
brightest, as Congressman Pallone just said, those that could 
find revolutionary cures for some of the dreaded diseases that 
we have been fighting so long. We want those scientists to work 
for the Health and Human Services and the National Institutes 
of Health. That is why Congress originally passed this 
legislation a number of years ago, to give special hiring 
authority so that we could get in those exceptional cases the 
best and the brightest.
    The bill that I have introduced doesn't eliminate that. It 
still allows a large number of exemptions to hire those very 
special people.
    What has happened, though, Mr. Chairman, is that what was a 
well-intentioned piece of legislation 70 years ago has been 
used as a loophole to create an alternative pay scale. This 
special hiring authority that we commonly call Title 42 has 
become commonplace. It is almost an alternative pay scale, not 
just a special pay scale. Nearly 25 percent--25 percent--one 
out of four, of NIH employees are hired under Title 42.
    Mr. Pallone alluded to the director of NIH, who is an 
exceptional individual and is worth a lot more than we are 
paying him. But he is one of 6,500, you know? That is the 
problem. Not that we hired these extremely exceptional people 
under Title 42; it is that we hire thousands of people who are 
very competent, very qualified, but I doubt that they are all 
as exceptional as Dr. Fauci is.
    Ten percent of all HHS employees--10 percent of all HHS 
employees are hired under Title 42. Believe it or not, even the 
Environmental Protection Agency is now using Title 42 to hire I 
think somewhere in the neighborhood of 25 people. That is just 
not acceptable, Mr. Chairman, in a time when we have budget 
deficits of over a trillion dollars every year.
    Title 42 was not created to create an alternative pay 
scale. It was not created to inflate unnecessarily government 
salaries. Legislation, in my opinion, is needed to rein this 
in.
    H.R. 6214 is not a draconian, slash-and-burn piece of 
legislation. It does limit the use of the provision of Title 42 
to HHS; that means the EPA can't use it. I think that is common 
sense. It would cap the number of hires under this authority to 
5 percent. Now, 5 percent is hardly, you know, earth-
shattering. That is still, at 60,000 people, 5 percent is 3,000 
people. So surely within that 3,000-person cap we can get the 
best and the brightest if we need to.
    It would ensure that compensation under Title 42 does not 
exceed 150 percent of the Executive Level 1 pay scale under 
Section 5312, Title 5 of the regular government employee 
compensation scale.
    It would allow, no matter what the general pay scale is, up 
to 50 people, at the discretion of the Secretary of HHS, to be 
paid without regard to compensation limit--up to 50. So if we 
get an Albert Einstein or if we get somebody who literally has 
the cure for cancer, if the Secretary wants to pay that 
individual, I don't know, a million dollars, this piece of 
legislation would allow that to happen, but only up to 50 
employees.
    The bill also would require an annual report to the 
Congress detailing the use of Title 42 and an enumeration of 
those that were receiving Title 42 compensation.
    So, Mr. Chairman, this is an issue that the subcommittee 
has been looking at for a number of years. It is an issue that 
I requested a GAO report on several years ago, which we are 
about to get the executive summary given to us. And hopefully 
this is a bill that, on a bipartisan basis, in the very near 
future we can move in some shape, form, or fashion.
    I will say this--I know my time has expired. If there are 
tweaks to the bill and our minority friends want to change some 
of it, I am open to it, and I would expect that Mr. Pitts and 
Mr. Upton also would be. And we encourage our NIH and HHS 
officials to work with us to perfect this bill.
    And, with that, I yield back.
    Mr. Pitts. The chair thanks the gentleman.
    Now, standing in for the ranking member of the full 
committee, the gentlelady from Illinois, Ms. Schakowsky, is 
recognized for 5 minutes.

       OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A 
     REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

    Ms. Schakowsky. Thank you, Mr. Chairman.
    In order to improve our Nation's health and wellbeing and 
to stay competitive in the global marketplace, it is pretty 
clear to me that our government needs to recruit top talent in 
research and development. Title 42 has allowed us to bring in 
our Nation's top scientists to apply their expertise to 
discoveries that improve health and save lives. It is vital 
that our Federal agencies have the authority to recruit and 
retain vital scientific talent.
    The Department of Health and Human Services, and in 
particular NIH, has cited difficulties in recruiting and 
retaining top individuals in medicine, science, and other 
critical fields. As a result, our government has made an effort 
to bridge skill gaps that threaten our agencies' ability to 
meet their missions.
    Even prior to this report--and I want to underscore that--
even prior to this report, HHS has been diligently working on 
improving its Title 42 hiring process. HHS recently implemented 
a policy that capped annual base salaries, clarified the 
definition of scientific positions for the purpose of Title 42 
hiring, and use of a streamlined recruitment process to ensure 
that all other hiring authorities have been exhausted before 
Title 42 was used.
    I am also pleased that NIH has heeded GAO's recommendations 
and is working to incorporate them into their Title 42 changes.
    While I agree that it is important in our oversight role to 
ensure that NIH does not abuse this authority, an ill-advised 
effort to statutorily cap all pay under Title 42 or to cap 
HHS's ability to use Title 42, such as in H.R. 6214, would have 
a detrimental effect on critical government research.
    Our Nation's top scientists could make significantly more 
in comparable private-sector jobs. When they agree to apply 
their skills and expertise to the public sphere, the American 
people benefit from their work. Congress must ensure that our 
government's esteemed research institutions are able to attract 
top talent, and, to do so, Title 42 funding should not be 
subject to an arbitrary cap.
    I look forward to hearing the testimony from our witnesses 
concerning how HHS can build upon their work to modify its 
Title 42 policy, to work with my colleagues across the aisle to 
make sure that there are no abuses of this authority, and to 
ensure that the appropriate use and documentation of this 
important authority is available to us.
    And I thank you, Mr. Chairman. And I yield back.
    Mr. Pitts. The chair thanks the gentlelady.
    All the other opening statements of the Members will be 
made a part of the record.
    I would like to introduce today's witnesses.
    Mr. Robert Goldenkoff is the director of strategic issues 
for the Government Accountability Office.
    Welcome.
    Mr. Robert Cramer is the managing associate general 
counsel, also with the Government Accountability Office.
    Your written statements will be made part of the record. 
Thank you both for being here today.
    And, Mr. Goldenkoff, you are now recognized for 5 minutes 
for a summary of your testimony.

  STATEMENT OF ROBERT GOLDENKOFF, DIRECTOR, STRATEGIC ISSUES, 
   GOVERNMENT ACCOUNTABILITY OFFICE; ROBERT CRAMER, MANAGING 
  ASSOCIATE GENERAL COUNSEL, GOVERNMENT ACCOUNTABILITY OFFICE

                 STATEMENT OF ROBERT GOLDENKOFF

    Mr. Goldenkoff. Thank you.
    Chairman Pitts, Ranking Member Pallone, members of the 
subcommittee, thank you for the opportunity to be here today to 
discuss Title 42, a special hiring authority used exclusively 
by the Department of Health and Human Services and the 
Environmental Protection Agency to help them overcome 
difficulties in recruiting and retaining individuals in 
medicine, science, engineering, and other fields.
    The two agencies use the higher salaries and other 
flexibilities available under Title 42 to make them more 
competitive in the labor market for individuals in these highly 
specialized fields and more agile in meeting their mission 
requirements.
    Joining me today is Robert Cramer, GAO's managing associate 
general counsel. As requested, our remarks will focus first on 
the extent to which HHS and EPA have used Title 42 to appoint 
and set pay for employees since January 2006; and, second, 
whether those appointments followed applicable internal 
controls. We were also asked to determine whether there were 
any statutory pay caps for individuals appointed under Title 
42.
    Overall, HHS's use of Title 42 has increased from 5,361 
positions in 2006 to 6,697 positions in 2010, an increase of 
around 25 percent. HHS officials attributed this increase in 
Title 42 employees to, among other factors, the agency's 
response to urgent public health matters. For example, HHS 
officials said they used Title 42 to quickly hire experts 
needed to develop a vaccine in response to the H1N1 flu 
pandemic of 2009. Nearly all of HHS's Title 42 employees work 
in one of three operating divisions: NIH, FDA, and the CDC.
    In implementing Title 42, HHS and EPA can set base pay as 
high as $250,000. In comparison, most Federal employees are 
paid under the general schedule, where the highest base pay 
amount was $155,500 in 2010, a threshold known as Executive 
Level 4. That same year, more than a fifth of HHS's Title 42 
employees had a base salary that exceeded that Executive Level 
4.
    Importantly, special hiring authorities need adequate 
internal controls to ensure agencies use them cost-effectively. 
However, HHS lacks reliable data to manage and oversee its use 
of Title 42. As one example, because of shortcomings with its 
personnel database, it was difficult for HHS to provide 
accurate head counts of its Title 42 employees to us and to 
Congress.
    For its part, since 2006, EPA has used Title 42 to appoint 
17 employees, 15 of which earned over $155,500 in 2010. EPA 
appointment and compensation practices were generally 
consistent with its guidance; however, EPA does not have post-
appointment procedures in place to ensure Title 42 employees 
meet ethics requirements to which they have previously agreed.
    In our report on which this testimony is based, we made 
recommendations to HHS to strengthen its oversight and 
management of its Title 42 authority and a recommendation to 
EPA to improve enforcement of its ethics requirements. HHS 
agreed with our recommendations, while EPA disagreed, citing 
actions it had already taken. We acknowledge the EPA's plans to 
address these issues but maintain that the recommendation was 
needed to ensure implementation of tighter ethics provisions.
    I will turn now to my colleague, Bob Cramer, who will 
discuss the extent to which statutory pay caps apply to certain 
Title 42 appointments.

                   STATEMENT OF ROBERT CRAMER

    Mr. Cramer. I am pleased to be here to discuss our legal 
opinion concerning pay caps for consultants appointed pursuant 
to Title 42 of the United States Code.
    At the outset, let me say that this was a very difficult 
issue. It required us to analyze laws that have been enacted 
over the course of many years, from 1923 to 2009. Laws we 
analyzed are in different pay systems, and we encountered 
challenges in attempting to resolve ambiguities arising from 
pay laws enacted at different times over those many years, 
nearly 90.
    What we did find was that a provision in a 1993 
appropriations act established a permanent cap on the pay of 
individuals appointed on a limited-time basis under Title 42 at 
all the public health agencies except three. The cap currently 
limits base pay to $155,500. The permanent cap in the 1993 
appropriation actually originated back in 1956, when Congress 
first enacted it. Congress included it again in every 
appropriation until 1993, each year, but in 1993 it made it 
permanent.
    Now, in 1956, when the Public Health Services regulations 
included time limitations on employment of all consultants--so 
everyone had a limited-time appointment, so the appropriation 
cap applied to everyone. But in 1966 the regulations changed 
and the time limitation was removed. But when Congress enacted 
the appropriation cap in 1967 and in each of the following 
years, it continued to apply the cap only to those consultants 
appointed for limited periods of time.
    We also examined two pay caps found in Title 5. The first 
of these is Section 3109, which limits pay for temporary 
consultants.
    In 1992, Congress directed OPM to prescribe regulations to 
administer 3109, and OPM's regulations provide that 3109 does 
not apply to consultants under Title 42. Under the law, this 
interpretation is entitled to considerable weight since OPM is 
the agency charged by Congress with administering 3109. 
Moreover, OPM's interpretation is consistent with actions of 
Congress, which have signaled that 3109 does not apply to the 
Title 42 consultants.
    Since 1970, the appropriation acts for HHS have contained 
separate provisions placing identical compensation limits for 
consultants subject to 3109 and for Title 42 consultants 
appointed for limited periods of time. Obviously, identical 
provisions would be unnecessary if Congress believed that 3109 
applied to the Title 42 folks.
    The other pay cap that we considered is Section 5373 of 
Title 5. It caps pay at level 4 of the executive schedule, 
currently $155,500 also.
    In deciding that 5373 does not apply to Title 42 
consultants, we were again guided by congressional actions. For 
example, after 5373 was enacted, Congress enacted the permanent 
pay cap that I spoke of before, which limits pay for Title 42 
limited-time appointments to Executive Level 4. This provision 
would not have been necessary if Congress believed that the pay 
cap in 5373 applied, since it also limits pay to Executive 
Level 4.
    Additional evidence that 5373 does not apply to Title 42 is 
provided by Congress' actions when it extended the authority to 
EPA. Our review of the legislative history at the time 
indicates that EPA and HHS each informed Congress during the 
legislative process that they did not apply the 5373 cap to the 
Title 42 consultants.
    In conclusion, if Congress wants to establish upper limits 
for appointments under Title 42, you may wish to consider, as 
indeed you are, enacting legislation to specifically enact such 
limits.
    That concludes our statements, and Mr. Goldenkoff and I 
would both be happy to answer any questions you may have.
    [The prepared statement of Mr. Goldenkoff and Mr. Cramer 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Pitts. The chair thanks both of you for your opening 
statements.
    I will begin the questioning and recognize myself for 5 
minutes for that pursuant purpose.
    Mr. Goldenkoff, the report states that, according to HHS 
and EPA officials, the pay-setting flexibility is needed to 
compete with the private sector and academia pay schedules.
    Did you review the existing pay schedules for research 
scientists and consultants in the private sector or academia? 
Did HHS do a review of existing pay schedules? If so, what were 
the differences? And, if not, how did they determine pay?
    Mr. Goldenkoff. We did not review comparable pay in the 
private sector or in academia. That type of a study is 
extremely difficult to do. Mainly, it is hard to find apples-
to-apples comparisons.
    But having said that, HHS and EPA are in a labor market 
that is extremely competitive. They are competing for positions 
that are extremely well-paid. And so it is important for them 
to be able to compete and hire people, as has been said here. 
And pay is a big incentive.
    Mr. Pitts. Please describe the role of the Secretary of HHS 
in determining pay levels outside of the civil service. Does 
any other Federal official have that kind of authority? Does 
the President have that authority?
    Mr. Goldenkoff. With the Secretary of HHS, my understanding 
is that the Secretary has the authority to approve pay above a 
certain cap, the highest level. But we did not look at the 
authorities of other department heads or agency heads.
    Mr. Pitts. Did you determine why the use of Title 42 
increased by 25 percent at HHS from 2006 to 2010?
    Mr. Goldenkoff. Well, we did speak to agency officials 
about that, and, yes, it was a dramatic increase. And the 
reason, a key reason was, as I said, was to respond to these 
health emergencies. One was the H1N1 virus, where they needed 
to bring people on board extremely fast to develop a vaccine 
for it.
    Mr. Pitts. And what was the basis for HHS dropping the 
annual Title 42 salary cap from $350,000 to $250,000, which is 
almost a 30 percent decrease?
    Mr. Goldenkoff. Right. That I don't----
    Mr. Pitts. Mr. Cramer?
    Mr. Cramer. I don't know the basis upon which they decided 
to do it. I think it would seem like a policy judgment on their 
part.
    Mr. Pitts. Referring back to the first question, was there 
any language in the existing laws or regulations that described 
Title 42 as a pay flexibility program needed to compete with 
the private-sector pay schedules?
    Mr. Cramer?
    Mr. Cramer. In the legislative history when Title 42 was 
passed, and also when EPA was granted the authority, there was 
discussion about the need for the Public Health Service and 
then EPA to be able to attract scientists to come work for 
them, yes.
    Mr. Pitts. Where is the authority that allows HHS and EPA 
to operate the Title 42 in this manner?
    Mr. Cramer. Well, it is actually Title 42, Section 209. And 
we are actually speaking about subsections F, which is the 
consultants, and then G, which are the fellows. The scientists 
were brought in as--you know, to work for them for some period 
of time. It is those specific provisions.
    Mr. Pitts. Mr. Goldenkoff, would you review the types of 
employees that were hired at HHS under Title 42 authority, such 
as nursing or research? And from your analysis of the laws, is 
there authority to hire a nurse under Title 42? 
    Mr. Goldenkoff. There is broad authority there. And, you 
know, for example, some of the occupations that they brought in 
people under Title 42, there was a staff scientist; there was a 
research fellow; a senior investigator; clinical research 
nurse, who specializes in the care of research participants and 
is responsible for showing participant safety. So they are not 
necessarily caring for patients but just caring for people who 
were involved in the research. The other position here, the 
other occupation was a clinical fellow.
    So there does seem to be a lot of latitude in the positions 
that can be hired under Title 42.
    Mr. Pitts. All right. My time has expired.
    I recognize the ranking member for 5 minutes for questions.
    Mr. Pallone. Thank you, Mr. Chairman.
    I wanted to discuss why it is important that the HHS 
maintain the hiring authority granted by Title 42.
    I think we can all agree that it is essential for HHS to be 
able to recruit and retain highly trained and often 
specifically trained personnel in support of their mission. 
Because without it, you know, people like Dr. Tony Fauci, as I 
mentioned, or, you know, Dr. Harold Varmus, who is the director 
of the National Cancer Institute, or Dr. Neal Young, the NIH 
hematologist we read about in Wednesday's Washington Post--he 
found a cure for aplastic anemia, which is a rare and fatal 
bone marrow disease.
    So, in your perspective--you know, I am asking the two of 
you--in your perspective, how does Title 42 serve as an 
essential tool for HHS to fulfill its mission? And why is it 
important that the Department maintain the special hiring 
authority?
    Either one can start. Dr. Goldenkoff, I guess?
    Mr. Goldenkoff. Well, it is important for all agencies to 
have this flexibility because agencies--it is about mission 
accomplishment. And agencies need to have the various tools 
that are required to compete in the labor market. And, you 
know, as we have already said, doctors and research scientists 
and engineers, these are highly paid professions, and the GS 
schedule is not always sufficient to match both the salaries 
and other forms of compensation that are available outside of 
government.
    For example, in academia, you can have your base salary; 
you can also get money for publishing articles, for consulting. 
And those are things that are not available in the Federal 
Government, but those are things that--that is the competitive 
environment. And the Federal Government needs to have the 
flexibility to offer both the salary and other forms of 
compensation to get the best and brightest.
    Mr. Pallone. Mr. Cramer, do you want to respond?
    Mr. Cramer. Well, actually, you are asking about some 
policy issues, and my half of this is the legal side.
    Mr. Pallone. OK.
    Mr. Cramer. So we leave the policy to you folks.
    Mr. Pallone. All right.
    Well, let me ask a second question, and that is--I want to 
make the record clear on two points. First question: Is it 
correct that HHS agreed with each of your three 
recommendations?
    Mr. Goldenkoff. Yes, that is correct. And they have already 
started taking action on them.
    Mr. Pallone. Well, to the best of your knowledge, is HHS in 
the process of addressing each of these? And to the extent the 
Department hasn't don't so, do you want to describe what they 
are doing, if you could?
    Mr. Goldenkoff. Yes. I mean, just very briefly, there were 
two key issues that we found. One had to do with the 
reliability of the data that was in their personnel database. 
And that sounds somewhat technical, but having a reliable 
personnel database gives you visibility over the kinds of 
people that you are hiring. And so it is very important for 
internal controls to have accurate data on your personnel.
    And so, for example, it was unclear how many people under 
the Sections F or G were being hired. And, as we said, they 
gave us inaccurate information, they provided the Congress 
inaccurate information on the head count. And it was also 
unclear--and, initially, for example, it seemed as if they had 
hired people into components of HHS that was inconsistent with 
the Title 42 appointment authority. As it turned out, it 
wasn't; it was just the inaccurate data. So this data piece is 
an internal control issue.
    The other finding where we made a recommendation was that 
they did not follow their internal guidelines in using Title 42 
policies, for example, on making a business justification, the 
business case for why Title 42 was needed in the first place in 
terms of a particular appointment.
    And so, while we were doing our audit work, they tightened 
up some of their procedures. And so they are making steps in 
the right direction, but we felt that they haven't gone far 
enough. And that was the basis for one of the recommendations 
dealing with better documentation was needed, to show that, 
yes, they have basically exhausted all possibilities and now 
they have to use the Title 42. And so that is an internal 
control or an accountability--it addresses those two issues.
    And then on the data, we recommended that they--when they 
input the information, there is a drop-down screen in there--
that they would ensure that they indicate whether it is a 
Section F or a Section G. And, again, that is the other piece 
of the internal control.
    Mr. Pallone. Thank you, Mr. Chairman.
    Mr. Chairman, I just wanted to clarify that this authority 
could only be used for doctoral-level training. It is only used 
for that purpose----
    Mr. Goldenkoff. I am sorry?
    Mr. Pallone. This authority, it is only used for doctoral-
level training. That is my understanding.
    Mr. Cramer. Doctoral training?
    Mr. Pallone. Doctoral-level.
    Mr. Cramer. I am not familiar with----
    Mr. Pallone. I am just saying that, myself. I wasn't----
    Mr. Cramer. G is for the fellowships, the scientists, 
individual scientists. And F is for the consultants, which can 
be a variety of things.
    Mr. Pallone. OK. Thank you.
    Mr. Pitts. Will the gentleman yield just to follow up on 
that?
    Mr. Pallone. Oh, sure. I don't have any time, but sure.
    Mr. Pitts. Oh, you don't?
    Mr. Pallone. Oh, I guess I do. I am sorry.
    Mr. Pitts. What is the justification, then, for hiring 347 
nurses at NIH under this authority?
    Mr. Cramer. Well, I can try to say something about it.
    You know, under F, it only talks about special consultants. 
They don't specifically mention nurses. But in this day and 
age, where consultants do so many things and we don't have a 
specific legal definition of what we mean by ``consultant'' in 
209, arguably one could say that a nurse could be brought in as 
a consultant.
    You know, I used to be an assistant U.S. attorney, and we 
would pick juries. And people would be asked their occupation, 
and they would say, ``I am a consultant.'' And so the question 
would be, well, what do you do? Because consultants do so many 
different kinds of things.
    Mr. Pitts. OK. Thank you.
    The chair recognizes the gentleman, Mr. Barton, for 5 
minutes for questions.
    Mr. Barton. Thank you.
    Before I start asking my questions, I wanted to make a 
general statement.
    I am not opposed or on some jihad to people who want to 
work in government service at HHS or NIH. You know, I am a 
Federal employee. My late aunt was a long-time employee of the 
Department of Agriculture. My sister is an EPA enforcement 
attorney at the regional office at the EPA in Dallas. So I am 
absolutely supportive of good people working in the public 
service area for the Federal Government.
    What I am opposed to is using a provision that was 
originally intended for short-time, special consultants to fill 
specific critical needs being used as a substitute pay scale. 
That is what I am opposed to.
    And when you have, you know, 44 percent of all the 
researchers at NIH under Title 42 and you have, you know, I 
think, 25 percent of the people at HHS under Title 42, 
something is out of control.
    Now, I am going to ask a few questions that are trying to 
make that point.
    Mr. Goldenkoff, are there any Title 42 employees that have 
won a Nobel prize?
    Mr. Goldenkoff. We did not look into that.
    Mr. Barton. Do you know of any?
    Mr. Goldenkoff. I am not aware of any.
    Mr. Barton. Do you know of any that are potential Nobel 
prize winners?
    Mr. Goldenkoff. I am not in a----
    Mr. Barton. Were there any employees hired with the 
understanding that they might compete for a Nobel prize?
    Mr. Goldenkoff. No, we can't comment on that.
    Mr. Barton. Or whatever the equivalent prize is.
    Mr. Goldenkoff. It was mentioned that Dr. Fauci--I mean, 
obviously, a Nobel prize is only, you know, within each 
scientific field, you know, a handful that are selected every 
single year. So that is certainly the pinnacle of one's career. 
We do know, for example, that Dr. Fauci has won and earned a 
number of awards.
    Mr. Barton. And nobody begrudges what he is paid. I 
certainly don't. I have absolutely nothing but the highest 
esteem for him personally and professionally.
    Is there any record at NIH or in HHS or, for that matter, 
EPA where there was a specific requirement for some unique 
skill set, that this individual was hired and they specifically 
said, we had to pay more because this is one of a handful of 
people in the country that has this skill set? Any indication 
that they even tried to do a normal job search before they used 
this special compensation skill?
    Mr. Goldenkoff. Well, and that is what we want to see more 
of. And that was the basis for our recommendation, is greater 
accountability. Because with flexibility, that is fine, but an 
agency needs to have greater accountability to use something.
    And so, you know, we have said in some of the other work 
that we have done on personnel issues that pay flexibility to 
be able to compete in the marketplace, the labor market for the 
best and the brightest, that is fine, but agencies also need to 
be held accountable that they are using it properly, cost-
effectively, consistent with applicable laws and regulations 
and guidance, and that there is no abuse going on.
    And so when we looked, we pulled, of the roughly 6,500 
Title 42 appointments at HHS, we looked at the paperwork on 
about 60 of them, and we did find some gaps in that sort of 
documentation. That is precisely the type of thing that we were 
looking for, that they had exhausted all other outlets, all 
other avenues for getting folks that met those qualifications. 
And so the goal of the recommendation is to tighten that up and 
to see more of that.
    But in terms of how that translates into specific numbers, 
whether 6,000 is too many, you know, should it be more than 
6,000, should it be fewer than 6,000, we don't have a basis for 
that. But we would have a better sense, though, of knowing, if 
there was more robust documentation, that at least each one of 
those appointments met a certain threshold in terms of need and 
demand.
    Mr. Barton. Well, now, I don't want to beat a dead horse, 
but it is clear to me that Title 42 has been used as a 
substitute pay scale. And instead of doing the due diligence 
and trying to use the normal pay scale and find somebody 
competent, this has just been used as kind of a recruitment 
tool. ``We will hire you under Title 42, and you will get an 
extra $50,000 or $75,000.'' And anybody who is being hired is 
going to say yes to more money instead of less.
    But to sit here and say that this had to be used, that it 
was used only in a last resort because they could not find 
competent people, when you increase the use of it by 25 percent 
in a 2-year period, it is being used sloppily, to say the 
least. And, hopefully, on a bipartisan basis, we can begin to 
do something about it.
    And, again, the bill that has been introduced, it is not 
the Ten Commandments. If there is something we need to modify 
or change in consultation with the executive branch and the 
minority, I am very open to do that. But I do hope that we 
tighten this up.
    And, with that, Mr. Chairman, thank you for the hearing, 
and I yield back.
    Mr. Pitts. The chair thanks the gentleman and recognizes 
the gentlelady from Illinois, Ms. Schakowsky, for 5 minutes for 
questions.
    Ms. Schakowsky. Thank you, Mr. Chairman.
    I would like to point out, in response to the issue of 
Nobel prizes, that Dr. Harold Varmus, who was the former head 
of the NIH--Mr. Barton, I wanted to just let you know that Dr. 
Harold Varmus, who was the former head of NIH, he then went to 
Sloan Kettering----
    Mr. Barton. I understand that, but that was before he 
worked at NIH.
    Ms. Schakowsky. Oh. I thought the question was whether or 
not----
    Mr. Barton. He didn't get hired and win this Nobel--and, 
look, I am for him----
    Ms. Schakowsky. No, I know. I know you are. And I don't 
want to be argumentative. I just wanted to say we actually do 
have, proudly, have someone, head of the National Cancer 
Institute, that won a Nobel prize.
    Mr. Barton. I have met that gentleman, and I am impressed 
with him.
    Ms. Schakowsky. OK.
    Mr. Barton. But he didn't get hired under Title 42 before 
he won the Nobel prize. That is all I am saying.
    Ms. Schakowsky. OK.
    Let me also just say the enormous respect that I have for 
the GAO. And I certainly have found your advice and your 
studies so incredibly useful.
    And I want to focus in on one part of what the GAO found, 
and wonder if it is not an area for bipartisan agreement. There 
are two sentences just in the cover sheet, one that HHS does 
not have reliable data to manage and provide oversight of its 
use of Title 42. It seems to me that unless the steps that they 
have taken satisfy your requirements--and I want going to ask 
you about that--that certainly seems like something that we 
ought to focus on. And, two, that the EPA--and you mentioned 
that in your testimony, I believe--does not have post-
appointment procedures in place to ensure Title 42 employees 
meet ethics requirements to which they have previously agreed. 
And that seems like a place that we all definitely ought to 
focus on.
    So, one, let me ask you if HHS has responded to the 
oversight of its use sufficiently. Because I know it has made 
changes.
    And, two, I wanted to ask you, in your opinion, how would 
caps on the use of this hiring authority, in your view, affect 
NIH's ability to hire the skilled workforce needed to quickly 
respond to public health crises?
    I want to just add one point. The chairman asked, do you 
look at the private sector? It seems to me that one of the 
criteria when HHS or EPA or whoever hires--and I am presuming 
that they do need to look at the private sector, that we are 
not just throwing out a number. Is there any requirement that 
they look at that?
    So let me get those answers.
    Mr. Goldenkoff. Well, under the general schedule, when 
general schedule pay is considered and adjusted on an annual 
basis, it is based on salary surveys with comparable jobs in 
the private sector. Soat least for the general schedule--now, 
you can argue with the methodology, and a lot of people have 
debated that--but there is some comparison with the private 
sector based on also location and level of position for GS 
positions.
    But for the Title 42 positions, I am not familiar with 
exactly what they do to----
    Ms. Schakowsky. OK, but in our small time here, let's now 
talk about these management issues, the oversight and 
monitoring that I had asked you about. I mean, has NIH made any 
of those changes? And what about focusing on how they monitor 
the----
    Mr. Goldenkoff. Yes, they agreed with the recommendations, 
so that is a start. They also had already taken steps to 
tightenup certain of their procedures in making the 
appointments.
    And what we will be doing, as part of our routine follow-up 
effort, as we do with all agencies that we make recommendations 
to, we will continue to follow up with them to make sure that 
they implement those recommendations.
    Ms. Schakowsky. And what do you think the effect of caps 
would be?
    Mr. Goldenkoff. It is difficult to say. I mean, we have not 
looked into that. Just more conceptually, though, where we have 
looked at, whether it is caps or things that are more formulaic 
in other areas, sometimes it doesn't always get the result that 
you want and does affect mission accomplishment. In this case, 
though, we can't say. We have not looked into it.
    But I would say, it is something to be sensitive to. 
Because, really, what this is about, as we said earlier, it is 
about mission accomplishment. And, you know, whether the number 
should be 5 percent, whether it should be 2 percent, whether it 
should be 10 percent, it is really hard to say. And so, what is 
the basis for that number?
    And this is why we keep coming back to the internal 
controls and the accountability. You know, so long as there is 
a justification for each one of those appointments--and this is 
where, for example, the annual reporting requirement in the new 
legislation would probably be a good thing because it could 
force HHS to----
    Ms. Schakowsky. That is what I was thinking, too, Mr. 
Barton, that the annual reporting requirement is something I 
think all of us certainly could easily agree with and should.
    Thank you. I yield back.
    Mr. Pitts. The chair thanks the gentlelady and now 
recognizes Dr. Burgess for 5 minutes for questions.
    Mr. Burgess. Thank you, Mr. Chairman.
    And, Mr. Goldenkoff, I think that is exactly the point. 
This whole process needs to be tightened up. And while we all 
want to see programs have flexibility to get the people in to 
get the work done that needs to be done, at the same time, if 
there is no oversight, I think we get the general impression 
that this is a program that hasn't been under tight control, 
and many things may have gotten away from not just HHS but 
other agencies, as well.
    The chairman asked a good question about comparable 
salaries, and then I think Ms. Schakowsky followed up on that. 
You mentioned salary surveys. Would that also include salary 
history of the individual under consideration?
    Mr. Goldenkoff. We did not--it was outside the scope of the 
study that we did.
    Mr. Burgess. But wouldn't that be a reasonable thing to 
include if you are----
    Mr. Goldenkoff. Oh, yes, yes. Most definitely.
    Mr. Burgess. Again, I don't want to belabor the point, but 
the limited data I have available to me, which is the wiki org 
chart, the top salary earner on that, it is an individual named 
after a subatomic particle, who earns $350,000 a year. And I am 
sure he does a great job, I am sure his position is important, 
and the country is the better for having him there. He is the 
head of the endocrine oncology section's surgery branch at the 
National Cancer Institute--a tough job. We want him to do it. 
But his previous position, apparently earned $256,000 in 2008.
    So that is a pretty big jump, almost a $100,000 jump in 
salary. Now, again, I am not saying that this individual is not 
worth it, but I would hope that somebody has got their hand on 
the tiller who is making these decisions.
    Let me ask you this. Any big company is going to have an HR 
department director who kind of oversees this stuff. Is there 
the equivalent of an HR director at HHS?
    Mr. Goldenkoff. Well, there is a chief human capital 
officer.
    Mr. Burgess. OK. Who is that individual?
    Mr. Goldenkoff. Off the top of my head, I don't know.
    Mr. Burgess. OK. Maybe you could provide that information 
to us.
    Mr. Goldenkoff. Sure. We can get that.
    Mr. Burgess. And, Mr. Chairman, that might be something we 
want to follow up on when we do our written questions.
    And, as has just been said in so many ways, we want the 
people there to do the work that needs to be done when it needs 
to be done. Now, you referenced the H1N1 crisis, and that was a 
crisis. But it is odd that we think that that required a sudden 
increase in Title 42 hires at higher salaries because, you 
know, the stimulus bill passed not 2-1/2 months before that 
with an extra $10 billion to NIH. I mean, so they had cash, 
they had money in the coffers. Interesting to see how that was 
allocated.
    And then, of course, the other thing is, we had also less 
than 10 years before come through 9/11, with all the beefing up 
of national labs and building the infrastructure.
    So am I to understand from your line of reasoning that the 
NIH and these other national labs do not have the surge 
capacity to deal with an existential threat like H1N1?
    Mr. Goldenkoff. Again, we have not looked at that. That was 
outside--you know, we looked at something that was just very, 
very narrow, and that was Title 42.
    Mr. Burgess. Yes. And I appreciate that. But, again, at the 
same time, it is like we spend all this money on readiness, and 
then we spend all the money in the stimulus; surely we weren't 
having to then go out and shop for the best and brightest minds 
in the business in order to bring them in to do this work.
    Mr. Cramer, let me ask you a question. The National Cancer 
Act of 1971 made the positions of the Director of NIH and the 
Director of the National Cancer Institute into Presidential 
appointments. Since they are Presidential appointments, they 
were no longer Secretarial appointments. Under Title 42, does 
that mean the NIH Director and the NCI Director are not 
eligible for Title 42 salaries?
    Mr. Cramer. I am not in the position to answer that 
specific question now because I haven't considered it before. 
So I can look into it and get back to you on it. But I don't 
know----
    Mr. Burgess. Do you know the salary of Dr. Collins?
    Mr. Cramer. No, I don't.
    Mr. Burgess. I don't either. Is there anybody that earns 
more than Dr. Collins at the NIH?
    Mr. Cramer. I didn't look into the salary issues of people. 
I was----
    Mr. Burgess. Mr. Goldenkoff, do you have that information?
    Mr. Goldenkoff. We have data on salaries, but we do not 
have it by specific individuals. The data was provided to us 
confidentially. We just have IDs, so we cannot link a 
particular salary level with a specific individual.
    Mr. Burgess. Oh, go to WikiOrgChart; they will do it for 
you.
    But it is just interesting if there are individuals at NIH 
who earn more than the Director, and just how many individuals 
there are who earn this. And perhaps a quick glance at the 
services that they provide, where they would earn a salary in 
excess of the Director of the entire NIH.
    And we will submit that as a question to be responded to in 
written form. I don't expect an answer right now.
    Mr. Goldenkoff. Yes, we can provide that to you.
    Mr. Burgess. All right. Very well.
    Thank you, Chairman. I will yield back the balance of my 
time.
    Mr. Pitts. The chair thanks the gentleman and recognizes 
the gentleman from Illinois, Mr. Shimkus, for 5 minutes for 
questions.
    Mr. Shimkus. Thank you, Chairman.
    And I do appreciate you all for coming. I do agree, I find 
the work of the GAO very helpful to us as public policy folks.
    But in just listening to your opening statements and 
testimonies, and, Mr. Cramer, for you to go back to 1926 and 
then figure out what happened in 1956 and try to weave this 
path of how we got to where we are at and why, just that 
analysis says we need to clean this up.
    So, I mean, just the opening statements saying we are 
cobbling this together to figure out how we got here, where 
what Mr. Barton would do is just say, let's just take a look at 
it, write an authorization, get bipartisan support, clean it 
up, try to get reliable data on the use of this Title 42 
authority, as you stated in your report. So I am excited. I 
think this is much-needed.
    Let me ask, I guess, a question. The Public Health Act--and 
this is Title 42 of that big law--EPA doesn't come under that 
authority under the Public Health Act,correct?
    Mr. Cramer. That is right. It is separate.
    Mr. Shimkus. So the EPA got dragged into this through an 
appropriation bill; is that right?
    Mr. Cramer. Yes, it--well, it was a bill that authorized 
the EPA to make use of Title 42 authorities.
    Mr. Shimkus. And I understand that was under an 
appropriation bill that then became law, and that is----
    Mr. Cramer. Yes. That is right. It was.
    Mr. Shimkus. So we, as authorizers, also really dislike 
public policy created through spending authority versus 
authorization. So the other aspect would be, let's have this 
debate of whether EPA should be under this, let's go through 
the authorization process and have that debate, should this 
apply to--versus, let's let these sneaky appropriators do it 
through their process. Right? I mean, so that is another 
aspect.
    We should not be afraid of this debate. And, again, even on 
both sides--and even my friend from Illinois, she has 
identified some things that I think we definitely can try to 
clean up and I wouldn't think would be that difficult.
    Now, my question also comes from the report, to try to 
explain one of the footnotes here on page 2 of your report. And 
I will just read it to make it easy. It says, ``The salary and 
compensation limits were lowered by HHS policy issued in 
February 2012 and in March 2007. HHS limits the annual base 
salary for employees hired under Section 209(f) to $350,000 and 
$375,000 in total compensation. These higher limits were in 
place during most years of our review of HHS's Title 42 use. 
Total compensation at HHS includes base pay, recruitment and 
retention,'' et cetera, et cetera, et cetera.
    That is trying to make a statement that the administration 
itself said this thing has gotten overinflated--and I guess we 
will go to Mr. Goldenkoff--is that how I am reading it, these 
things got overinflated? And they are pulling it back. And the 
main section of that page, which is page 2, you have annual 
base salary for many appointees under Title 42 at HHS cannot 
exceed $250,000. That was by policy from the administrative 
staff.Is that correct?
    Mr. Goldenkoff. I believe so. Yes, that is correct.
    Mr. Shimkus. And so, without proper--going back to one of 
your main statements about there is no, really, market analysis 
of why we paid this, even the administration said, these things 
got overinflated, we are going to pull them back--which I think 
goes to some of the questions about what positions are being 
used, how we are evaluating their salary range. And I concur 
with Mr. Barton; to some extent, it just seems like there was a 
different salary range outside of the normal process, and it 
has just grown over time, as things do here.
    Again, I appreciate the testimony. It is a great hearing. 
Mr. Chairman, thank you for it.
    And thank you for your great work.
    Mr. Pitts. The chair thanks the gentleman.
    And I now recognize the gentleman from Georgia, Dr. 
Gingrey, for 5 minutes for questions.
    Mr. Gingrey. Well, I thank you, Mr. Chairman, for 
recognizing me. I came in at the very tail end of this. And, 
doggone it, Mr. Shimkus, as he always does, took my question, 
the last question on my list. But he did it better than I 
could.
    Let me just make a comment and say that I thank the 
witnesses from GAO for testifying this morning. And I would 
concur with my colleague from Illinois, that we are deeply 
appreciative of the work that you do, not just on this but in 
general. It is very, very helpful, as is CRS, to help us do our 
work and do a better job.
    Maybe rather than me asking a question that has already 
been asked, the two of you could sort of summarize, if you have 
not already done that, if you don't mind, maybe in a condensed 
manner, do that for me in regard to what you have found in this 
report and what your recommendations are going forward, both 
for HHS and EPA, in regard to this issue?
    Mr. Goldenkoff. Sir, I mean, in a nutshell, it was, you 
know, we recognize the importance of having pay flexibility, 
but, you know, we are GAO, our middle name is literally 
``accountability'', so what we also were looking for was more 
accountability in their use of Title 42. Because we are in 
agreement, that we don't want abuse of it, we don't want any 
waste, we don't want there to be indiscriminate use of Title 
42.
    And so, when we went to look at within--we looked at the 
extent to which the Title 42 appointments at both HHS and EPA 
were consistent with the law, applicable regulations, agency 
policies. And what we found was that, within HHS, there were 
issues in terms of their ability to even oversee their use of 
Title 42, and that is that data issue. They really didn't have 
a good accounting of who was Title 42(f) or Title 42(g). There 
was just some sloppiness in there. And, actually, a fair amount 
of time of the audit was spent working with HHS just cleaning 
up their database. And so that was what led to one of the 
recommendations to HHS.
    The second finding on HHS concerned their documentation, 
their justification for needing Title 42. And we found that, in 
some cases, they weren't always consistent with their own 
policies. And so that led to our other recommendation to HHS, 
dealing with the need to tighten up and better document the 
need for the authority.
    And then for EPA, obviously they have far fewer Title 42 
appointments. So what we did find there is that those 17 
appointments were consistent with their policies, but we found 
that there were some issues with conflict-of-interest 
provisions, and they didn't always follow up with employees 
that did things that were--basically, that had holdings, stock 
holdings, and they did not divest in them, as they were asked 
to----
    Mr. Gingrey. Well, I will just interrupt you to say this. I 
think that was a very, very important finding, that conflict-
of-interest issue, particularly in regard to EPA and all these 
rules and regulations that get handed down. So I thank you for 
that work.
    Mr. Cramer, did you have any comments that you wanted to 
add?
    Mr. Cramer. Well, we looked, essentially, at this question 
of pay caps and whether or not any of the pay caps that we 
considered that exist in the Federal compensation systems--
there are a number of different systems--actually applied to 
the Title 42 folks. And we found that it was a very limited--
there is a very limited cap on the pay involving those who work 
for a limited-time basis.
    To sum it up, the statutory schemes are very complicated. 
And if the committee can begin to work on trying to harmonize 
the various things that have happened over the many years 
during which all of these laws have been passed, to bring it 
together and to make it simpler, it would be a great service to 
HHS and to the Federal Government.
    Mr. Gingrey. I thank you.
    And I yield back.
    Mr. Pitts. Would you yield to Dr. Burgess, please?
    Go ahead.
    Mr. Burgess. I would just like to ask Mr. Goldenkoff about, 
how does the HHS implementation of Title 42 differ or compare 
to EPA's implementation of Title 42?
    Mr. Goldenkoff. Compare to what?
    Mr. Burgess. HHS and EPA, when they are governed under 
Title 42, is their approach identical, or are there differences 
between the two agencies?
    Mr. Goldenkoff. It seemed that EPA's practices were a 
little bit tighter, a little bit more thorough, and certainly 
they were more consistent in following. Now, granted, there 
were also fewer cases to look at. So, you know, we were dealing 
with over 6,000 cases versus the 10 that we looked at in EPA, I 
believe. And, you know, so the likelihood was we were going to 
find more----
    Mr. Burgess. So how many Title 42 employees are there at 
EPA?
    Mr. Goldenkoff. Seventeen.
    Mr. Burgess. And how many could they hire?
    Mr. Goldenkoff. Up to 30.
    Mr. Burgess. Do they need those slots if they are unfilled?
    Mr. Goldenkoff. My understanding is there are plans to fill 
them.
    Mr. Burgess. I would say don't.
    Mr. Goldenkoff. And, you know, again, this is a policy 
issue. It is an internal management matter that we did not 
look----
    Mr. Burgess. All right. We will.
    Thank you. I yield back.
    Mr. Pitts. I recognize Mr. Barton for 5 minutes.
    Mr. Barton. Thank you, Mr. Chairman. I am not sure I will 
take the 5 minutes.
    Under current law or current regulations, is there a limit 
on what the Secretary of HHS can pay an exceptional individual?
    Mr. Cramer. There is a limit in the appropriation law if 
that person is a person who was appointed for a limited period 
of time.
    Mr. Barton. What if they are not appointed for a limited 
period of time?
    Mr. Cramer. No, there is no limit.
    Mr. Barton. So, theoretically, under current law and 
regulations, the Secretary of HHS could pay somebody $2 million 
a year? They don't do it, I understand that. But there is no 
limit on it right now?
    Mr. Cramer. There is no law that would prohibit that at 
this time.
    Mr. Barton. At this time. Thank you.
    Should there be a law that puts a specific cap on 
compensation?
    Mr. Cramer. If Congress decides there should be a law, 
there should be a law.
    Mr. Barton. That is a great answer. You can't beat that.
    My understanding is that Title 42 originally was 
established during World War II for temporary special 
consultants.Is that correct?
    Mr. Cramer. Yes. Back in 1944, Title 42 was enacted into 
law. And, at that time, although the law itself did not specify 
that the employees had to be temporary, the regulations of the 
Public Health Service, which went into effect in 1946, 
actually, limited them in time.
    But there is an interesting little twist here. It didn't 
limit them to, say, a year or 2 years or 3 years. What it 
provided was that consultants and fellows hired under Title 42 
could only be employed for up to one-half the working days in 
any year. So, although they could have been there for many 
years, they could only work essentially half-time.
    Mr. Barton. When did the word ``temporary''--or maybe I 
should--of the people that have been hired most recently under 
Title 42, are they classified as temporary, or are the 
classified as full-time permanent?
    Mr. Cramer. I can't speak to how HHS treats them on their 
books. I don't know if Mr. Goldenkoff----
    Mr. Goldenkoff. Term appointments? OK----
    Mr. Barton. When they----
    Mr. Goldenkoff [continuing]. Or indefinite.
    Mr. Barton. They are what?
    Mr. Goldenkoff. It is our understanding it is either term 
or indefinite.
    Mr. Barton. Indefinite. So if I am hired under the general 
scale at HHS, GS-something, whatever, I am hired as a permanent 
full-time employee, correct?
    Mr. Goldenkoff. That is correct.
    Mr. Barton. But if I am hired under Title 42, I am 
considered an indefinite. And indefinite could be 30 years.
    Mr. Goldenkoff. But we did not see that going on. I mean, 
we did look at that, just precisely that, and we did not see 
that in the data that we looked at.
    Mr. Barton. Well, should a reform be that we either define 
what temporary is and put some specificity to it and require 
that Title 42 only be used for truly temporary special needs? 
Or should we go the other way and say, let's end this hypocrisy 
of indefiniteness and say that they are going to be full-time? 
In other words, let's be transparent about it.
    Mr. Goldenkoff. To the extent--and I think this is one of 
the other flexibilities that we haven't discussed yet, is that 
Title 42, the fact that these are term appointments, does allow 
for bringing people in for a limited period of time, and that 
can align with a particular research project. And so, in 
theory, when that research project is over, then, you know, 
that----
    Mr. Barton. But that is apparently not how they are doing 
it. They don't sign a contract for a research project. They are 
just hired as regular employees, and they get all the benefits, 
but it is for an indefinite period of time.
    Mr. Goldenkoff. But then compared to, say, a permanent 
employee, who is there for, you know, the next 30 years----
    Mr. Barton. Hopefully.
    Mr. Goldenkoff. So, I mean, that flexibility is important. 
But, you know, you are correct, in that--and, again, it is part 
of having this oversight, that folks aren't there for an 
indefinite period of time and they are notre-upped on a regular 
basis.
    Mr. Barton. Well, my time is about to expire, and I 
appreciate the chairman letting me have a second round.
    Should we legislatively define this program and put some 
definitions and caps in it? Or should it be left to the 
executive branch to handle it on an executive regulatory basis?
    Mr. Goldenkoff. We would need to consider that more. You 
know, the implications of caps, in particular, and how that 
would affect the overall flexibility.
    And, you know, certainly, there is the need to ensure that 
HHS and EPA don't use this indiscriminately or as an alternate 
to standard hiring procedures. But would a cap be too blunt of 
an instrument? And is the way to get around that through maybe 
tighter internal controls to ensure that for every appointment 
that is made that they have exhausted all other appointments?
    Mr. Barton. Well, my time has expired, but I just know, 
when I was in the private sector and had to make hiring 
decisions, if I really needed this position hired, you know, 
that was always the exceptional case, that I had to have that. 
I mean, I would go to my boss, if it was above my ability to 
pay them what I thought they needed, and say, ``I have to have 
this individual, and we need to pay him 125 percent of the 
market.'' I never said, ``Well, I really need him, but I just 
want to pay him 75 percent.'' I mean, if you leave it to the 
discretion at the executive level, they are always going to say 
we have to have that person and we need to pay them more.
    And, with that, I yield back, Mr. Chairman.
    Mr. Pitts. The chair thanks the gentleman.
    And I now recognize the ranking member for 5 minutes.
    Mr. Pallone. Thank you, Mr. Chairman.
    Gentlemen, I just wanted to make it clear and basically 
commend the Department, HHS, for the actions it has already 
taken to respond to your recommendations. I want to make it 
clear that they have.
    And if I could ask unanimous consent, Mr. Chairman, to 
enter into the record the HHS human resources manual that has 
been updated, or the section that has been updated in February 
2012.
    Mr. Pitts. Without objection, so ordered.
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    Mr. Pallone. And, specifically, because I did mention 
before about this policy only applying to doctoral candidates, 
and I know you had mentioned the nurses, or it had come up 
about the nurses. And part of the manual change, it says that, 
under qualifications, it requires that appointees have a 
doctoral-level degree in a scientific discipline related to the 
position and professional stature that is commensurate with the 
duties of the position being filled.
    Prior HHS policy only required a bachelor's degree. So it 
was, in fact, the case that, before, you could just have a 
bachelor's degree, which is, I assume, the reference to the 
nurses. But it is not true under the revisions that they have 
made that we have now entered into the record.
    And the other thing I wanted to point out is that--and, 
again, this is my effort to try to make it clear that this is 
not or should not be partisan--that the EPA was added to this 
program in 2005, and that was under a Republican President and 
a Republican majority in the Congress. So it is not that this 
is something that has just existed under the Democrats. It has 
existed under both administrations. And in the case of HHS, 
they are clearly trying to rectify some of the problems 
pursuant to your recommendations.
    That is all, Mr. Chairman. I yield back.
    Mr. Pitts. All right. Thank you.
    And that concludes the questioning from our Members. Your 
report has raised a lot of questions. I am sure Members will 
have additional follow-up questions that they will submit in 
writing.
    I remind the Members that they will have 10 business days 
to submit questions for the record, and I ask the witnesses to 
respond to the questions promptly. Members should submit their 
questions by the close of business on Friday, September the 
28th.
    And, without objection, the subcommittee is adjourned.
    [Whereupon, at 11:23 a.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

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