[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
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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
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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.]
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