	HHS Has Increased Its Use of Title 42, but More Reliable Data Could Improve HHS’s Oversight

During calendar year 2010, HHS had 6,697 employees who were  appointed under sections 209(f) or (g).served at the National Institutes of Health (NIH), the Food and Drug  Administration (FDA), or the Centers for Disease Control and Prevention  (CDC), while the remaining employees served in the Office of the  Secretary or within other operating divisions, as shown in figure 1. At the time of our  study, EPA had appointed 17 fellows in its Office of Research and  Development from 2006 to 2011 under section 209(g) and all 17 fellows  remained with EPA. According to EPA officials, the agency has identified mission critical  personnel needs and is actively recruiting to fill the 13 remaining  authorized Title 42 positions. In appointing Title 42 fellows, EPA generally followed appointment  guidance described in its Title 42 Operations Manual. To address this issue, we recommended that EPA, as part of its efforts to  improve postappointment ethics oversight, develop and document a  systematic approach for ensuring Title 42 employees are compliant with  ethics requirements after appointment. EPA disagreed with our  recommendation, citing certain actions already taken, such as a plan to  require proof of compliance with ethics agreements. We acknowledged  EPA’s plans to address these issues, but maintained the recommendation  was needed to ensure implementation because the two ethics issues we  reported occurred over 2 years ago. Legal Opinion Whether There are Statutory Caps on Pay for Consultants and Scientists Appointed under Title 42

Our legal opinion, issued on July 11, 2012, responded to a Congressional  request for our views on whether there are statutory caps on pay for  consultants and scientists appointed pursuant to 42 U.S.C. With regard to individuals not subject to  this cap, we concluded further that two other pay limitations set forth in  Title 5 of the U.S. Code that we considered do not apply to appointments  made pursuant to 42 U.S.C. Sections 209(f) and (g) of  title 42 were enacted in 1944 and have not been amended since that  time. § 5376.” This cap currently limits  base pay to $155,500. §§ 209(f) or (g) in all but three of the Public Health  Service Agencies. § 209(f). 42 U.S.C. §§ 209(f) or (g) appointees. § 5373 pay cap to apply to consultants and scientists hired  pursuant to 42 U.S.C. §§ 209(f) and (g). As one court has observed, “although some pay systems  are ‘linked’ to one another,” they have not been “fastidiously integrated” to  achieve uniform federal compensation policies.” In this case, the issues  raised – in particular the applicability of the two title 5 limitations on the  title 42 authority to hire special consultants and fellows – reflect the  difficulty of applying distinct statutory schemes to determine whether  specific pay limits apply. Thus if Congress desires upper pay limits for  appointments under sections 209(f) and (g), it may wish to consider  amending these provisions to specifically establish such limits. Concluding Observations

Both HHS and EPA have used Title 42 to recruit and retain highly skilled,  in-demand personnel to government service in order to execute their  missions. At the same time, HHS’s lack of complete data and guidance  on its use of Title 42 may limit the agency’s ability to strategically manage  its use and provide oversight of the authority. Effective monitoring of the  use of Title 42 is particularly important in light of HHS’s increasing use of  the authority and the number of employees earning salaries higher than  most federal employees. EPA generally followed its Title 42 policies and has incorporated some  modifications to improve its appointment and compensation practices;  however, EPA’s current ethics guidance does not sufficiently ensure Title  42 employees meet ethics requirements after appointment. Going forward, our recommendations to HHS and EPA to strengthen  certain practices under Title 42, if implemented, should help strengthen  the management and oversight of this special hiring authority.
Why GAO Did This Study

HHS and EPA have been using special hiring authority provided under 42 U.S.C. §§209(f) and (g)referred to in this testimony as Title 42to appoint individuals to fill mission critical positions in science and medicine and, in many cases, pay them above salary limits usually applicable to federal government employees. GAO was asked to review the extent to which HHS and EPA have (1) used authority under Title 42 to appoint and compensate employees since 2006, and (2) followed applicable agency policy, guidance, and internal controls for appointments and compensation. GAO was also asked to determine if there are statutory caps on pay for consultants and scientists appointed pursuant to Title 42.
This testimony is based on GAOs July 2012 report (GAO-12-692) and a legal opinion on whether there are statutory caps on pay for consultants and scientists appointed pursuant to 42 U.S.C. §§ 209(f) or (g). (B-3223357)

What GAO Found

The Department of Health and Human Services (HHS) use of special hiring authorities under 42 U.S.C. §§ 209(f) and (g) has increased in recent years, from 5,361 positions in 2006 to 6,697 positions in 2010, an increase of around 25 percent. Nearly all HHS Title 42 employees work in one of three HHS operating divisions: the National Institutes of Health (NIH), the Food and Drug Administration (FDA), and the Centers for Disease Control and Prevention (CDC). Title 42 employees at HHS serve in a variety of areas, including scientific and medical research support and in senior, director-level leadership positions. At NIH, one-quarter of all employees, and 44 percent of its researchers and clinical practitioners, were Title 42 appointees.
HHS reported that Title 42 enables the agency to quickly fill knowledge gaps so medical research can progress and to respond to medical emergencies. HHS further reported Title 42 provides the compensation flexibility needed to compete with the private sector. In 2010, 1,461 of HHSs Title 42 employees earned salaries over $155,500. The highest base pay amount under the General Schedule  the system under which most federal employees are paid  was $155,500 in 2010. Under certain types of Title 42 appointments, statutory pay caps may apply. 2010 was the last year of HHS data available at the time of GAOs review.
HHS does not have reliable data to manage and provide oversight of its use of Title 42. Moreover, HHS did not consistently adhere to certain sections of its Title 42 section 209(f) policy. For example, the policy states that 209(f) appointments may only be made after non-Title 42 authorities have failed to yield a qualified candidate, but GAO found few instances where such efforts were documented. HHS has recently issued updated 209(f) policy that addresses most of these issues. HHS is developing agencywide policy for appointing and compensating employees under Title 42 section 209(g), but it is not clear the policy will address important issues such as documenting the basis for compensation.
Since 2006, the Environmental Protection Agency (EPA) has used section 209(g) to appoint 17 employees. Fifteen of EPAs 17 Title 42 employees earned salaries 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 its legal opinion, GAO concluded that an appropriations pay cap applies to certain, but not all, employees appointed under 42 U.S.C. §§ 209(f) and (g). If Congress desires upper pay limits for appointments not currently subject to the pay cap, it may wish to consider legislation to specifically establish such limits.

What GAO Recommends

In the report on which this testimony is based, GAO made recommendations to HHS to improve oversight and management of its Title 42 authority and a recommendation to EPA to improve enforcement of its ethics requirements. HHS agreed with GAOs recommendations, while EPA disagreed, citing actions already taken. GAO acknowledged EPAs plans to address these issues, but maintained the recommendation was needed to ensure implementation.