Human Capital:

HHS and EPA Can Improve Practices Under Special Hiring Authorities

GAO-12-692: Published: Jul 9, 2012. Publicly Released: Jul 12, 2012.

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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 EPA’s 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.

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 Recommends

GAO recommends HHS (1) ensuresection authority—209(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 GAO’s recommendations, while EPA disagreed, citing certain actions already taken. GAO acknowledges EPA’s plans to address these issues, but maintains the recommendation is needed to ensure implementation.

For more information, contact Robert Goldenkoff at (202) 512-2757 or goldenkoffr@gao.gov.

Status Legend:

More Info
  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: To help ensure HHS has the data and guidance necessary to effectively oversee and manage its Title 42 authority, the Secretary of HHS should ensure section authority—sections 209(f) or (g)—be consistently entered in appropriate automated personnel systems, such as making section authority a required, drop-down field in its personnel system where this information is initially entered.

    Agency Affected: Department of Health and Human Services

    Status: Closed - Implemented

    Comments: In 2012, we found that HHS did not have reliable data on the use of its Title 42 authority. Specifically, HHS did not consistently electronically record the authority under which many of its Title 42 employees were appointed. The lack of reliable information in this area may preclude HHS, Congress, and other organizations from providing effective oversight of the Title 42 program and evaluating its effectiveness. We recommended that HHS ensure section authority be consistently entered in appropriate automated personnel systems. In response to our recommendation, HHS (1) launched a data validation effort to review and correct inaccuracies in the current HHS HR database; (2) developed, published, and mandated use of the New HR Data Processing Guide for HR Specialists and those with HR data responsibilities; and (3) implemented an Enterprise HR IT end-to-end system scheduled to launch next fall to ensure greater consistency and oversight at the corporate level.

    Recommendation: To help ensure HHS has the data and guidance necessary to effectively oversee and manage its Title 42 authority, the Secretary of HHS should, 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. This could include such items as: (1) the basis for which the position is considered scientific, (2) recruitment and retention efforts made under other hiring authorities before using Title 42, (3) a conversion's recognition as a national or international expert in the field, (4) a conversion's original scientific or scholarly contributions of major significance in the field, (5) a conversion's leadership in the field equivalent to a full-tenured professor in academia, and (6) a conversion's special knowledge and skills of benefit to the agency.

    Agency Affected: Department of Health and Human Services

    Status: Closed - Implemented

    Comments: In our 2012 report, we found that HHS did not consistently adhere to certain sections of its policy for hiring and converting employees under section 209(f) of Title 42. Inconsistencies between HHS's policies and practices related to section 209(f) may result in that authority being used in ways for which it was not intended. As part of its effort to implement section 209(f) guidance, we recommended that HHS systematically document how policy requirements were fulfilled when hiring or converting 209(f) employees. In response to our findings, HHS updated its 209(f) guidance to include a detailed explanation of the process and documentation requirements necessary to demonstrate that other available personnel systems failed to yield candidates that possess critical scientific expertise and thus Title 42 authority was necessary. HHS also took other steps that should improve adherence to its 209(f) policy, including developing a definition of "scientific position" and enhanced guidance for converting employees to 209(f) from other pay systems.

    Recommendation: To help ensure HHS has the data and guidance necessary to effectively oversee and manage its Title 42 authority, the Secretary of HHS should, 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.

    Agency Affected: Department of Health and Human Services

    Status: Closed - Implemented

    Comments: In our 2012 report, we found that HHS had no agencywide implementing policy for appointing and compensating employees hired under section 209(g) of Title 42, including details about what documents are needed to support the basis for appointments and compensation. The lack of an HHS-wide policy poses the risk that compensation decisions for section 209(g) employees may not be made consistently across operating divisions. We recommended that HHS develop policy for its employees hired under 209(g) that requires and provides guidance for documenting the basis for compensation. In response to our recommendation, HHS developed a 209(g) policy that requires operating divisions to develop plans that prescribe, in writing, the conditions under which 209(g) employees are appointed. This includes, but is not limited to, compensation.

    Recommendation: To help improve enforcement of ethics requirements, the Administrator of the EPA should direct the Designated Agency Ethics Official to, 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; and implement, as part of this approach, reported plans to require Title 42 employees to provide proof of compliance with ethics agreements to a designated ethics official within a reasonable timeframe after appointment.

    Agency Affected: Environmental Protection Agency

    Status: Open

    Comments: In its response to this recommendation, EPA wrote that although they disagreed with the recommendation, the agency would soon implement plans that would address issues that arise after appointment under Title 42. These plans may address the concerns documented in our report and may be the basis for closing the recommendation as implemented. We are currently reviewing plans issued by EPA and will follow up in December 2013 to understand if additional plans have been released internal to the agency.

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