Regulatory Focus™ > News Articles > Legislators Slam DHHS, FDA for Special Hiring Practices

Legislators Slam DHHS, FDA for Special Hiring Practices

Posted 14 September 2012 | By Alexander Gaffney, RAC 

The US Food and Drug Administration (FDA) has increased its use of special hiring authorities more than 50% in recent years to bring on staff members who can be paid more than the normal limit for federal employees, and some legislators are none too pleased at the trend.

In a 14 September 2012 hearing, the Government Accountability Office (GAO), which earlier released a report on the topic, testified that the Department of Health and Human Services' (DHHS) use of special hiring authority under Title 42 of the Public Health Service Act had surged in recent years. Title 42 allows DHHS to appoint specialists, some of whom have special training or qualifications, and pay them more closely in line with what they might earn in the private sector. The current, non-special cap on government salaries is $155,500 for an Executive Level IV employee, but some-not all-special hires can be paid more than this limit.

GAO's July 2012 report noted that the agency, which oversees FDA, the Centers for Disease Control and Prevention (CDC) and the National Institutes of Health (NIH), "Does not have reliable data to manage and provide oversight of its use of Title 42 because… [data] is not consistently recorded into personnel systems."

DHHS also failed to adhere to its own policies on selecting qualified candidates, said GAO. In particular, such hiring authorities are only supposed to be exercised when a normal search of job candidates is unable to yield a suitable candidate willing to be paid normal wages. GAO noted DHHS was in the process of developing an agency-wide policy for the appointment and compensation of employees, which would also apply to FDA, but that the policy had not yet been issued.

A Dramatic Rise in Hiring Under Title 42

But it is the rate of Title 42 hiring that most irked legislators. FDA, for instance, hired 559 employees using special hiring authority in 2006. In 2010, it hired 862 employees using the same authority, a 54% increase relative to 2006. This is far beyond the same hiring done by similar scientific agencies, such as the Environmental Protection Agency (EPA), which only hired 17 employees using special hiring authority in 2010.

NIH and CDC also exhibited growth in special hiring authority. NIH hired 4,879 Title 42 employees in 2010, or an increase of 15% relative to 2006, while CDC hired 929 for an increase of 81% relative to 2006.

Which isn't to say the special hirings are a bad thing, explained GAO. Investigators found that much of the increase was attributable to the economic downturn, which caused many out-of-work but highly qualified scientists to fill government positions. Paired with the expansion in FDA's authorities and hiring under the 2007 FDA Amendments Act and a 2008 plan to hire special "innovation fellows," much of the excess hiring may be attributable to circumstance rather than lax standards, said GAO.

Legislators: DHHS Using Authority to 'Circumvent Pay Structures'

Regardless, legislators were irked at the trend, and specifically the cost. More than 1,400 DHHS employees earn more than the $155,000 paid to Executive Level IV employees, noted members of the House Energy and Commerce Committee.

"Bureaucrats at HHS and the EPA are using Title 42 as an alternative pay system that circumvents the pay structures that Congress creates to make sure hard working taxpayer dollars are spent judiciously," said Rep. Joe Barton (R-TX). "Title 42 was not created to unnecessarily inflate government employees' salaries."

Barton pointed to reports that some DHHS employees make in excess of $350,000-more than the vice president of the US earns and nearly as much as the president. "With little to no congressional oversight until now, the use of this special hiring authority has become commonplace," Barton concluded.

Committee chairman Fred Upton (R-MI) agreed. "Uncle Sam should pay competitive wages in order to attract the best and brightest minds; however, we will not tolerate abuse of the system as we must also be mindful of our duty to ensure tax dollars are being spent wisely and in a transparent manner."

The congressmen are also touting a recently introduced piece of legislation, the HHS Employee Compensation Reform Act, which would place limits on the number of employees eligible to receive the exemptions by capping the number of employees allowed to be hired under Title 42 at 5%. Up to 50 additional employees could also be paid if their duties are, "Vital to support the activities of DHHS."

Regulatory Focus newsletters

All the biggest regulatory news and happenings.