The PHS is comprised of most  operating divisions within HHS—including the National Institutes of Health  (NIH), the Food and Drug Administration (FDA), and the Centers for  Disease Control and Prevention (CDC)—as well as some staff divisions  within the Office of the Secretary. EPA has not made appointments using section  209(f). HHS Has Increased Its Use of Title 42, but More Reliable Data Could Improve HHS’s Oversight

During 2010, HHS had 6,697 employees who were appointed under  sections 209(f) or (g). NIH  relied on Title 42 authority for a substantial portion—44 percent—of its  total research and clinical practitioner workforce. Title 42 employees at HHS serve in a variety of functional areas, including  scientific and medical research support and in senior, director-level  leadership positions. More than  one-fifth of all Title 42 employees at HHS, however, earned a base salary  above Executive Level IV ($155,500 in 2010). These officials said appointment agility enables  the agency to hire scientists, doctors, and other consultants to quickly fill  knowledge, skill, and ability gaps so that medical research can move  forward and to respond to medical emergencies. Some erroneous cases included individuals we  later found were hired under appointing authorities other than sections  209(f) or (g), including appointing authorities under 42 U.S.C. HHS Did Not Consistently Adhere to Sections of Its Title 42 Policy and Lacks Guidance for Some Authority Provisions

		Section 209(f) Hiring and Conversions

HHS did not consistently adhere to certain sections of its policy for hiring  and converting employees under section 209(f). However, it is not clear that the policy will address  important issues such as documenting the basis for compensation. The  section 209(g) policy was still in development as of May 2012. First, EPA reported that Title 42 provides  the flexibility to be competitive in recruiting top experts who are also  sought after by other federal agencies, private industry, and academia. EPA officials also stated Title 42 provides the appointment flexibility  needed to align experts with specific skills to changing scientific priorities. Although EPA has preappointment ethics clearance procedures as noted above, it does  not have postappointment procedures in place to ensure Title 42  employees meet ethics requirements to which they have previously  agreed. As part of its effort to implement new section 209(f) guidance,  systematically document how policy requirements were fulfilled when  hiring or converting 209(f) employees. As part of its ongoing effort to develop agencywide policy for  appointing and compensating employees hired under section 209(g),  ensure the policy requires and provides guidance for documenting the  basis for employee compensation. HHS agreed with our first recommendation to ensure section authority is  consistently entered in appropriate automated personnel systems. EPA disagreed with the recommendation that it develop and document a  systematic approach for ensuring Title 42 employees are compliant with  ethics requirements after appointment and consider adding steps to the  ethics clearance process that require Title 42 employees to provide proof  of compliance with ethics agreements. Appendix I: Objectives, Scope, and Methodology

This report examines the extent to which the Department of Health and  Human Services (HHS) and the Environmental Protection Agency (EPA)  have (1) used authority under 42 U.S.C. §§ 209(f) and (g) to appoint and  set pay for employees since January 2006, and (2) followed applicable  agency policy, guidance, and internal controls for Title 42 appointments  and compensation. To address the first objective, we obtained and analyzed personnel data  from HHS and EPA to describe Title 42 appointment and compensation  trends at HHS and EPA since 2006, including the number of Title 42  employees; the types of occupations and positions held by Title 42  employees; compensation rates, including the number of Title 42  employees earning more than certain federal salary levels; the number of  nonsalary payments (e.g., performance bonuses and retention incentives)  provided to Title 42 employees and their purpose; and the number of civil  servants that have been converted to Title 42 appointments and  compensation changes associated with those conversions. For EPA, we selected 10 of  the 17 Title 42 employees for case file reviews based on a cross section  of (1) labs and centers within EPA to understand if Title 42 was  implemented uniformly across the agency; (2) Title 42 candidate sources  such as the private sector, academia, and conversions to determine if  differences existed in recruitment and pay setting; (3) length of service as  a Title 42 employee to understand the effect of recent appointment and  compensation guidance; and (4) compensation characteristics.
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 report generally as Title 42 or specifically as section 209(f) or section 209(g)to 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 assess the extent to which HHS and EPA have (1) used authority under sections 209(f) and (g) to appoint and compensate employees since 2006, and (2) followed applicable agency policy, guidance, and internal controls for appointments and compensation. GAO analyzed agency Title 42 data, interviewed agency officials, and conducted file reviews.

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. 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 to compete with the private sector. In 2010, 1,461 HHS Title 42 employees earned salaries over Executive Level IV ($155,500 in 2010). HHS does not have reliable data to manage and provide oversight of its use of Title 42 because the section authority used to hire Title 42 employees is not consistently recorded into personnel systems. Moreover, HHS did not consistently adhere to certain sections of its 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 fellows under 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. Title 42 employees lead scientific research initiatives and some manage or direct a division or office. According to EPA officials, Title 42 provides the flexibility to be competitive in recruiting top experts who are also sought by private industry, academia, and others. Also, Title 42 provides the appointment flexibility needed to align experts with specific skills to changing scientific priorities. Fifteen of EPAs 17 Title 42 employees earned salaries over Executive Level IV in 2010. EPA appointment and compensation practices were generally consistent with its guidance; however, EPA does not have postappointment procedures in place to ensure Title 42 employees meet ethics requirements to which they have previously agreed.

What GAO Recommends

GAO recommends HHS (1) ensuresection authority209(f) or 209(g)be consistently entered in appropriatepersonnel systems, (2) systematically document how policy requirements were fulfilled when hiring or converting 209(f) employees, and (3) ensure agencywide 209(g) policy currently in development provides guidance for documenting the basis for employee compensation. GAO recommends EPA develop and document a systematic approach for ensuring Title 42 employees are compliant with ethics requirements after appointment. HHS agreed with GAOs recommendations, while EPA disagreed, citing certain actions already taken. GAO acknowledges EPAs plans to address these issues, but maintains the recommendation is needed to ensure implementation.