HUMAN CAPITAL

HHS and EPA Can 

Improve Practices 

Under Special Hiring 

Authorities 

Report to Congressional Requesters

July 2012

GAO-12-692

United States Government Accountability Office

GAO
United States Government Accountability Office

Highlights of GAO-12-692, a report to 

congressional requesters

July 2012

HUMAN CAPITAL

HHS and EPA Can Improve Practices Under Special 

Hiring Authorities

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) ensure 

section authority—209(f) or 209(g)—be 

consistently entered in appropriate 

personnel 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.

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).

HHS Operating Divisions Have Increased Their Use of Title 42, Sections 209(f) and (g) 

Appointments, 2006 through 2010

Operating 

division 2006 2007 2008 2009 2010

Percent 

changea 

NIH 4,238 4,389 4,569 4,721 4,879 15%

FDA 559 564 595 816 862 54

CDC 512 603 708 796 929 81

Other 52 45 44 38 27 (48)

Total 5,361 5,601 5,916 6,371 6,697 25%

Source: GAO analysis of HHS data. 

a

Figures in parentheses indicate a decrease.

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.

View GAO-12-692. For more information, 

contact Robert Goldenkoff at (202) 512-2757 

or goldenkoffr@gao.gov. 
Page i GAO-12-692 Human Capital

Letter 1 

Background 4

HHS Has Increased Its Use of Title 42, but More Reliable Data 

Could Improve HHS’s Oversight 9

HHS Did Not Consistently Adhere to Sections of Its Title 42 Policy 

and Lacks Guidance for Some Authority Provisions 18

EPA Employs a Limited Number of Title 42 Fellows, Primarily in 

Leadership Roles 24

EPA Appointment and Compensation Practices Were Generally 

Consistent with Its Guidance, but EPA Could Improve 

Resolution of Potential Conflicts of Interest 28

Conclusions 32

Recommendations for Executive Action 33

Agency Comments and Our Evaluation 34

Appendix I Objectives, Scope, and Methodology 38

Appendix II Comments from the Department of Health and Human Services 40

Appendix III Comments from the Environmental Protection Agency 44

Appendix IV GAO Contact and Staff Acknowledgments 47

Tables

Table 1: HHS Operating Divisions Have Increased Their Use of 

Sections 209(f) and (g) Appointments, 2006 through 2010 10

Table 2: NIH Relied on Title 42 for a Greater Percentage of Its Total 

Workforce and Research and Clinical Practitioners than 

FDA and CDC, 2010 12

Table 3: Most Common Title 42 Occupations at NIH and 

Characteristics 13

Table 4: HHS Title 42 Employees with Base Salaries within or 

Exceeding Federal Executive Salary Levels, 2010 15

Contents
Page ii GAO-12-692 Human Capital

Table 5: HHS Compliance with Certain Sections of Its Policy for 

Hiring and Converting Employees Under Section 209(f) for 

Cases Reviewed 20

Table 6: Number of EPA Title 42 Fellows with Salaries in Federal 

Executive Salary Levels, 2010 27

Table 7: EPA Appointment and Compensation Practices Were 

Generally Consistent with Guidance 29

Figures

Figure 1: HHS Organizational Structure 6

Figure 2: Most Title 42, Sections 209(f) and (g) Employees Served 

at NIH, FDA, or CDC, 2010 9

Figure 3: Cumulative Number of EPA Title 42 Staff, 2006 through 

2011 25

Abbreviations

CDC Centers for Disease Control and Prevention

EHRP Enterprise Human Resources and Payroll

EPA Environmental Protection Agency

FDA Food and Drug Administration

HHS Department of Health and Human Services

NCCT National Center for Computational Toxicology

NIH National Institutes of Health

OGC Office of General Counsel

ORD Office of Research and Development

PHS Public Health Service

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Page 1 GAO-12-692 Human Capital

United States Government Accountability Office 

Washington, DC 20548

July 9, 2012

The Honorable Denny Rehberg

Chairman

Subcommittee on Labor, Health and Human Services, Education, and

 Related Agencies

Committee on Appropriations

House of Representatives

The Honorable Cliff Stearns

Chairman

Subcommittee on Oversight and Investigations

Committee on Energy and Commerce

House of Representatives

The Honorable Joe Barton

House of Representatives

The Honorable Michael Burgess

House of Representatives

The Department of Health and Human Services (HHS) and the 

Environmental Protection Agency (EPA) are among the agencies that 

have cited difficulties in recruiting and retaining individuals in medicine, 

science, engineering, and other related fields in support of their missions. 

One reason for these difficulties, according to agency officials, is salaries 

available under typical federal government hiring authorities are 

sometimes not competitive with those in the private sector for individuals 

in these highly specialized and competitive fields. Since 2001, we have 

designated strategic human capital management a government-wide 

high-risk area in part because of the need to address current and 

emerging critical skills gaps that are undermining agencies’ abilities to 

meet their missions.1

Effective use of various human capital flexibilities is one way agencies 

can improve their efforts to recruit, hire, and manage their workforces. 

Such flexibilities, provided under 42 U.S.C. §§209(f) and 209(g)—referred 

 

1

GAO, High-Risk Series: An Update, GAO-11-278 (Washington, D.C.: Feb. 2011).

 
 

Page 2 GAO-12-692 Human Capital

to in this report generally as Title 42 or specifically as sections 209(f) or 

(g)—are available only to HHS and EPA.2

In implementing Title 42, the agencies have set higher pay limits than 

those provided under typical civil service hiring authorities.

Section 209(f) authorizes the 

employment of special consultants to assist and advise in the operation of 

the Public Health Service (PHS), while section 209(g) authorizes 

fellowships in the PHS for scientists who may be assigned to studies and 

investigations for the term of their fellowships. HHS has used sections 

209(f) and (g) and EPA has used section 209(g) to appoint individuals 

from the private sector and academia as well as to convert federal 

government employees under other pay systems—such as the General 

Schedule—to Title 42.

3 Per HHS 

policy, the annual base salary for many appointments under Title 42 at 

HHS cannot exceed $250,000 per calendar year, with total compensation 

not to exceed $275,000 unless approved by the Secretary.4

 

2

HHS has other special hiring authorities provided under Title 42 of the U.S. Code, but this 

report deals exclusively with the special hiring authorities under 42 U.S.C. §§ 209(f) and 

(g). 

In a related 

effort to this audit, we are issuing a legal opinion on whether there are 

any statutory caps on pay for consultants and fellows appointed under 

sections 209(f) and (g). Similarly, EPA policy caps annual base salary for 

Title 42 employees at $250,000, with total compensation that may not 

exceed $275,000. According to HHS and EPA officials, the pay setting 

flexibility is needed to compete with the private sector and academia to 

recruit and retain critical personnel. Because agencies exercise broad 

discretion in their use of Title 42 authority, it is important that they have 

robust policies and internal control mechanisms in place to implement 

and monitor use of the authority. To obtain a better understanding of the 

appointment and compensation practices under sections 209(f) and 

209(g), you asked us to assess the extent to which HHS and EPA (1) 

have used authority under sections 209(f) and (g) to appoint and set pay 

3

Most federal employees are paid under the General Schedule. The highest base pay 

amount under the General Schedule in 2012 is $155,500. 

4

The salary and compensation limits were lowered in HHS policy issued in February 2012. 

In March 2007, HHS limited 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 (2006 through 2010). Total compensation 

at HHS includes base pay; recruitment and retention incentives; and cash awards, such 

as performance bonuses.
 

Page 3 GAO-12-692 Human Capital

for employees since January 2006, and (2) have followed applicable 

agency policy, guidance, and internal controls for appointments and 

compensation.5

To assess the extent to which HHS and EPA have used authority under 

sections 209(f) and (g) to appoint and set pay for employees, we obtained 

agency personnel data that we analyzed to describe: (1) appointment and 

compensation trends at HHS and EPA since 2006, including the number 

of Title 42 employees; (2) the types of occupations and positions held by 

Title 42 employees; (3) compensation rates, including the number of Title 

42 employees earning more than certain federal salary levels; (4) the 

number of Title 42 employees receiving nonsalary payments; and (5) the 

number of civil servants that have been converted to Title 42 

appointments and the compensation changes associated with those 

conversions. We conducted a variety of data tests and interviews with 

agency officials to correct and refine HHS Title 42 data and were able to 

develop a data set that was reliable for our purposes. For EPA, we 

performed data testing, interviewed agency officials, and compared data 

to information found in official agency documents and determined that 

EPA’s data were reliable for our purposes. To determine the extent to 

which HHS and EPA have followed applicable policy, guidance, and 

internal controls, we reviewed the policies and guidance at HHS and EPA 

to understand the conditions under which Title 42 employees are to be 

recruited, appointed, compensated, and managed. We conducted 63 

case file reviews at HHS and 10 at EPA to document appointment and 

compensation practices and compared those practices to agency policies 

and guidance. Those cases were chosen based on a random selection of 

cases that had characteristics related to various areas of HHS’s and 

EPA’s Title 42 policy and guidance. We determined the number of case 

file reviews was sufficient to identify incidences where practices were or 

were not consistent with policies and guidance, but our findings are not 

generalizable to the entire population of Title 42 employees at HHS or 

EPA. See appendix I for a more detailed discussion of our objectives, 

scope, and methodology.

 

5

According to HHS human resource officials, personnel data prior to 2006 were likely not 

reliable for our analysis. EPA began using Title 42 in 2006. HHS data are available 

through the end of 2010, the last year of complete data available at the time of this study; 

and at EPA, through the end of 2011.
 

Page 4 GAO-12-692 Human Capital

We conducted this performance audit from May 2011 through July 2012 

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.

The authority to appoint and set pay for special consultants and fellows 

was provided as part of the Public Health Service Act in 1944.6 Section 

209(f) authorizes the employment of special consultants to assist and 

advise in the operation of the PHS. 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. See figure 1 for HHS’s organizational 

structure, including those operating divisions and main staff divisions 

considered to be within the PHS. Section 209(g) authorizes fellowships in 

the PHS for individual scientists who may be assigned for studies and 

investigations either in the United States or abroad. Sections 209(f) and 

(g) both authorize the establishment of regulations to further implement 

these authorities. HHS Office of the Secretary develops agencywide 

policy and guidance and operating divisions may set additional or 

supplemental policy as necessary. In 2005, Congress provided EPA with 

the authority to use section 209 to make a limited number of 

appointments in its Office of Research and Development (ORD).7

 

6

Pub. L. No. 78-410, § 208(c) and (d), 58 Stat. 682, 686 (July 1, 1944). These authorities 

were expansions of employment authorities originally provided to the National Cancer 

Institute in 1937. H. R. Rep. No. 1364 (1944).

Congress initially granted this authority to EPA for fiscal years 2006 

through 2011, but Congress amended the authority twice and currently 

EPA is permitted to employ up to 30 persons at any one time through 

7

Pub. L. No. 109-54, Title II, 119 Stat. 499, 531 (Aug 2, 2005). Although the legislation 

refers only to section 209, the legislative history of these grants of authority to EPA 

provides the intent was to grant EPA use of the authorities under sections (f), (g), and (h) 

of section 209. Subsection (h) of section 209 permits noncitizens to be appointed and 

compensated under sections 209(f) and (g).

Background
 

Page 5 GAO-12-692 Human Capital

fiscal year 2015.8 EPA issued regulations in 2006 implementing this 

authority, which closely follow HHS regulations.9

 

8

Pub. L. No. 111-8, title II, 123 Stat. 524, 729 (Mar. 11, 2009) and Pub. L. No. 111-88, 

Division A, title II, 123 Stat. 2904, 2938 (Dec. 30, 2009). 

9

40 C.F.R. part 18.
 

Page 6 GAO-12-692 Human Capital

Figure 1: HHS Organizational Structure

HHS regulations for section 209(f) provide that special consultants may 

only be appointed when the PHS cannot obtain services through regular 
 

Page 7 GAO-12-692 Human Capital

civil service appointments or under the compensation provisions of the 

Classification Act of 1949.10

HHS regulations covering section 209(g) provide that fellowships may be 

provided to secure the services of talented scientists for limited duration 

(up to 5 years) for health-related research, studies, and investigations.

The regulations further provide that rates of 

compensation for special consultants are to be set in accordance with 

criteria established by the Surgeon General. The Surgeon General is part 

of the Office of the Assistant Secretary for Health. HHS has used this 

authority, for example, to appoint doctors and others with expertise in 

specialty fields to initiate or provide assistance in conducting medical 

research and set pay for those individuals at rates above those allowed 

under other federal government pay systems.

11

The regulations further provide that the Secretary may authorize 

procedures to extend the term of fellowships, may authorize stipends for 

the fellows, and is responsible for establishing appointment procedures 

beyond those set forth in the regulations.12

Some Title 42 employees earn pay within or exceeding pay levels found 

in the Executive Schedule. The Executive Schedule is a five-level, basic 

pay schedule applicable to the highest-ranking executive appointments in 

the federal government. Executive Schedule pay rates range from 

Executive Level V ($145,700 since 2010) to Executive Level I ($199,700 

since 2010).

Only HHS and EPA are authorized to use Title 42 hiring authority. By 

contrast, regular hiring authorities such as those under title 5 of the U.S. 

Code—commonly referred to as Title 5—may be used by any federal 

agency.13

 

1042 C.F.R. § 22.3. The Classification Act of 1949 established the General Schedule, a 

single, nationwide pay structure for federal white-collar employees that today consists of 

15 grades, each with 10 pay steps.

Pursuant to HHS and EPA policy, employees at HHS and EPA 

originally hired under Title 5 or other authorities may be converted to Title 

42 in some circumstances. Under these policies, employees hired under 

1142 C.F.R. § 61.32. 

12 42 C.F.R. §§ 61.33 and 61.37-38. 

13A small number of agency-specific personnel authorities, including hiring authorities, are 

contained in subpart I of part III of Title 5. For example, personnel flexibilities relating to 

the Internal Revenue Service are contained in chapter 95 of Title 5.
 

Page 8 GAO-12-692 Human Capital

Title 42 are eligible for performance bonuses, incentives, and other 

nonsalary payments made available to federal employees compensated 

under Title 5.

Title 42 employees most frequently work within one of three operating 

divisions:

• NIH is the nation’s medical research agency and is comprised of the 

Office of the Director and 27 institutes and centers, including the 

National Cancer Institute; National Institute on Aging; National Heart, 

Lung, and Blood Institute; and the National Center for Complementary 

and Alternative Medicine. Each institute and center has its own 

specific research agenda, often focused on a particular disease or 

body system. As the central office at NIH, the Office of the Director 

establishes NIH-specific policy and oversees the institutes and 

centers to ensure they operate in accordance with said policy. While 

most of its budget goes to extramural research personnel at more 

than 3,000 universities and research institutions, NIH also has 

intramural research laboratories on the NIH main campus in 

Bethesda, Maryland. The main campus is also home to the NIH 

Clinical Center, which is the largest hospital in the world totally 

dedicated to clinical research.

• FDA is responsible for, among other things, protecting the public 

health by assuring the safety, efficacy, and security of human and 

veterinary drugs, biological products, medical devices, the nation’s 

food supply, cosmetics, and products that emit radiation. FDA is also 

responsible for regulating tobacco products.

• CDC conducts activities such as identifying and defining preventable 

health problems and maintaining active surveillance of diseases; 

serving as the PHS lead agency in developing and implementing 

operational programs relating to environmental health problems; and 

operational research aimed at developing and testing effective 

disease prevention, control, and health promotion programs.

EPA uses section 209(g) as the basis for hiring some scientists within 

ORD, the scientific research arm of EPA. ORD’s work at EPA laboratory 

and research centers provide the science and technology to identify 

environmental hazards, assess risks to public health and ecosystems, 

and determine how best to control or prevent pollution. According to EPA 

documents and officials, EPA uses Title 42 to secure the services of 

experienced and talented scientists for renewable appointments where, 

because of the nature of the work and expertise needed, regular hiring 
 

Page 9 GAO-12-692 Human Capital

authorities are impractical. EPA has not made appointments using section 

209(f).

During 2010, HHS had 6,697 employees who were appointed under 

sections 209(f) or (g).14 All but 27 of these employees served at NIH, 

FDA, or CDC, while the remaining employees served in the Office of the 

Secretary or within other operating divisions, as shown in figure 2.15

Figure 2: Most Title 42, Sections 209(f) and (g) Employees Served at NIH, FDA, or 

CDC, 2010

The number of employees appointed under sections 209(f) and (g) 

increased overall at HHS by 25 percent from 2006 through 2010, as 

shown in table 1. Since 2006, the number of Title 42 employees grew by 

15 percent at NIH, by 54 percent at FDA, and by 81 percent at CDC, 

 

14All years are in calendar years unless otherwise stated.

15Title 42 employees in the Office of the Secretary served in offices within the PHS and 

Title 42 employees in other operating divisions served in operating divisions within the 

PHS. 

HHS Has Increased Its 

Use of Title 42, but 

More Reliable Data 

Could Improve HHS’s 

Oversight
 

Page 10 GAO-12-692 Human Capital

while declining by 48 percent at the Office of the Secretary and all other 

operating divisions.

Table 1: HHS Operating Divisions Have Increased Their Use of Sections 209(f) and 

(g) Appointments, 2006 through 2010

Operating division 2006 2007 2008 2009 2010

Percent

changea

NIH 4,238 4,389 4,569 4,721 4,879 15%

FDA 559 564 595 816 862 54

CDC 512 603 708 796 929 81

Other 52 45 44 38 27 (48)

Total 5,361 5,601 5,916 6,371 6,697 25%

Source: GAO analysis of HHS data.

a

Figures in parentheses indicate a decrease. 

The increased use of Title 42 authority came during a period when HHS 

made recruiting and retaining mission-critical elements of its workforce a 

priority. HHS’s 2007-2012 Strategic Plan included strategic objectives: (1) 

recruiting, developing, and retaining a competent health care workforce, 

and (2) strengthening the pool of qualified health and behavioral science 

researchers. HHS officials generally attributed the increases in Title 42 

employees to the agency’s response to urgent public health matters and 

effects of the economic downturn on the private sector and academia, 

which, according to officials, made the agency more attractive to 

prospective or on-board employees. Specifically, according to HHS:

• The 15 percent increase from 2006 through 2010 at NIH can be 

attributed, in part, to the effects of the economic downturn on the 

biomedical research labor market. Officials told us that as extramural 

research funding available in the private sector and academia is 

shrinking, NIH is able to use Title 42 to more successfully recruit and 

retain biomedical investigators and clinical specialists.

• The spike in Title 42 appointments at FDA in 2008 and 2009 is a 

result of the Food and Drug Administration Amendments Act of 2007 

and the Food Protection Plan, FDA’s strategy for protecting the 
 

Page 11 GAO-12-692 Human Capital

nation’s food supply.16 Additionally, in 2008 FDA launched its first 

class of Commissioner’s Fellows (hired under section 209 (g) for up to 

a two year period) beginning with 50 fellows, another class of 50 in 

2009, and a third class of 45 in 2010.17

• At CDC, increased use of Title 42 was attributed to the urgency of 

certain programs such as the overseas Global AIDS Program and 

those under the Office of Public Health Preparedness and Response. 

For these programs, officials told us they needed employees with 

specialized scientific skills or training and experience and would not 

have been able to obtain them without Title 42.

As discussed later, we were unable to determine which section 

authority—sections 209(f) or (g)—was used more often because HHS 

section authority data was not reliable for this purpose.

As shown in table 2, NIH relies on Title 42 authority for a greater 

percentage of its total workforce than does FDA and CDC. In 2010, 25 

percent of all NIH employees were Title 42 employees, while 10 percent 

of CDC employees and 6 percent of FDA employees were Title 42. NIH 

relied on Title 42 authority for a substantial portion—44 percent—of its 

total research and clinical practitioner workforce.18

 

16The Food and Drug Administration Amendments Act of 2007, among other things, 

increased FDA’s oversight responsibilities for food, drug, and medical device safety. Pub. 

L. No. 110-85, 121 Stat. 823 (Sept. 27, 2007).

17FDA offers the Commissioner’s Fellowship Program for health professionals and 

scientists to receive training and experience at the FDA. Fellows are to explore a specific 

aspect of FDA regulatory science including biology, physics, and epidemiology.

18To determine the number of researchers and clinical practitioners, we counted the 

number of operating division employees categorized as providing research, development, 

or clinical practice services in the Office of Personnel Management’s Central Personnel 

Data File. Researchers are categorized as those who provide systematic, critical, 

intensive investigation directed toward the development of new or fuller scientific 

knowledge of the subject studied. Clinical practitioners are those who provide direct 

clinical and related medical services to patients/clients including examination, testing, 

diagnosis, treatment, therapy, casework, counseling, disability evaluation, and related 

patient care services. We also included those categorized as in development. Those 

individuals provide systematic application of scientific knowledge directed toward the 

creation of new or substantially improved equipment, devices, systems, mathematical 

models, and others.
 

Page 12 GAO-12-692 Human Capital

Table 2: NIH Relied on Title 42 for a Greater Percentage of Its Total Workforce and Research and Clinical Practitioners than 

FDA and CDC, 2010

Agency

Title 42

employees

Total operating 

division workforce

Title 42 percentage of 

total operating 

division workforce

Total researchers and 

clinical practitioners 

Title 42 percentage of 

researchers and clinical 

practitioners

NIH 4,879 19,292 25% 11,040 44%

FDA 862 14,617 6 10,025 9 

CDC 929 9,707 10 5,817 16

Source: GAO analysis of HHS and CPDF data.

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. Base salary ranges for Title 42 employees varied by 

operating division and occupation. In 2010, almost 60 percent of Title 42 

employees at NIH served in one of five general occupations: staff 

scientist, research fellow, senior investigator, clinical research nurse, and 

clinical fellow. Table 3 describes some of the general responsibilities and 

duties, educational characteristics, and salary data for these occupations 

at NIH.

Title 42 Employees Serve 

in Various Functions
 

Page 13 GAO-12-692 Human Capital

Table 3: Most Common Title 42 Occupations at NIH and Characteristics

Occupation (number of Title 42 

employees in 2010) Characteristics Salarya

Staff Scientist (1,103) • Supports the long-term research of a 

senior investigator and independently 

designs experiments, but does not have 

responsibilities for initiating new 

research programs

• Usually has a doctoral degree

• Base salary range: $82,000-200,000

• Average base salary: $118,000

• Median base salary: $114,000 

Research Fellow (666) • Scientists obtaining experience in 

biomedical research while providing a 

service relevant to the NIH’s program 

needs

• Has a doctoral degree

• Base salary range: $45,000-112,000

• Average base salary: $70,000

• Median base salary: $69,000

Senior Investigator (521) • Has been granted tenure.b Some senior 

investigators are assigned 

organizational responsibilities in the 

institute or center, that is, section or 

branch chief

• Has a doctoral degree

• Base salary range: $117,000-350,000

• Average base salary: $192,000

• Median base salary: $195,000

Clinical Research Nurse (347) c • Specializes in the care of research 

participants and is responsible for 

assuring participant safety, formulating 

patient care plans, integrity of protocol 

implementation, accuracy of data 

collection, and recording

• Nursing degree or diploma from a 

professional nursing program

• Base salary range: $62,000-96,000

• Average and median base salary: 

$78,000

Clinical Fellow (249) • Participates in protocol-based clinical 

research (i.e., research with people 

serving as volunteer participants) as 

well as laboratory research

• Has a doctoral-level health degree with 

interest in biomedical research relevant 

to NIH program needs

• Base salary range: $57,000-137,000

• Average base salary: $84,000

• Median base salary: $82,000

Source: GAO analysis of HHS data and documents.

a

Salary figures as of 2010. All figures are rounded to the nearest thousand dollars. 

b

Tenure at NIH differs from tenure at an academic institution. Tenure at NIH is defined as the longterm commitment of salary, personnel, and research resources needed to conduct an independent 

research program within the scope of the institutes’ missions, and subject to regular review. Tenure 

may be conferred on Title 42 employees despite the nonpermanent nature of the position. 

c

As part of the sunsetting of the Clinical Research Support pilot, NIH is currently phasing out Title 42 

appointments for nurses. 

At FDA and CDC, the most common occupation of Title 42 employees is 

a fellow. In 2010, 340 (39 percent) of FDA’s Title 42 employees were staff 

fellows. These positions are for promising research and regulatory review 

scientists. In general, staff fellows at FDA conduct or support research, 
 

Page 14 GAO-12-692 Human Capital

provide technical direction and supervision to other researchers, publish 

scientific articles, and review contract and grant proposals designed to 

support their research projects. Staff fellows must have a doctoral degree 

in bio-medical, behavioral, or related science and, according to FDA 

policy, total compensation may not exceed certain pay limits ($155,500 in 

2010) unless the Director of Human Resources and Management and 

Services grants an exception. FDA staff fellows’ base salary range in 

2010 is approximately $42,000 to $224,000, with an average base salary 

of about $96,000 and a median salary of about $92,000. Three of 340 

staff fellows at FDA earned more than $155,500 in 2010.

Of CDC’s Title 42 employees in 2010, 687 (74 percent) were senior 

service fellows or associate service fellows appointed to study areas such 

as basic and applied research in medical, physical, biological, 

mathematical, social, biometric, epidemiological, behavioral, computer 

sciences, and other fields directly related to the mission of CDC. Senior 

service fellows must have a doctoral degree and associate service fellows 

must have a master’s degree. Senior service fellows had a base salary 

range in 2010 of approximately $49,000 to $155,500, with an average 

base salary of about $103,000 and a median salary of about $100,000. 

Associate service fellows had a base salary range of approximately 

$44,000 to $93,000, with an average base salary of about $69,000 and a 

median salary of about $71,000.

The average base salary for all HHS Title 42 employees in 2010 was 

about $116,000 and the median salary was about $101,000. More than 

one-fifth of all Title 42 employees at HHS, however, earned a base salary 

above Executive Level IV ($155,500 in 2010). Congress regularly refers 

to executive salary levels in order to express minimum or maximum levels 

of pay authorized for positions in the federal government. For example, 

Congress has imposed a cap of Executive Level IV on salary (i.e., basic 

pay) rates where pay is fixed by administrative action under 5 U.S.C. § 

5373. In a related effort to this audit, we are issuing a legal opinion on 

whether there are any statutory caps on pay for consultants and fellows 

appointed under 42 U.S.C. §§ 209(f) or (g), including whether the cap 

under section 5373 applies. Table 4 shows the number of Title 42 

employees whose base salary is within or above the various Executive 

Salary Levels in 2010.

Some Title 42 Employees 

Are Paid Above Executive 

Salary Levels
 

Page 15 GAO-12-692 Human Capital

Table 4: HHS Title 42 Employees with Base Salaries within or Exceeding Federal 

Executive Salary Levels, 2010

Executive level

Number of Title 42 

employeesa

At or above Executive Level I ($199,700) 629

Within Executive Levels I and II ($179,700-199,699) 319

Within Executive Levels II and III ($165,300-179,699) 295

Within Executive Levels III and IV ($155,500-165,299) 218

Total 1,461

Source: GAO analysis of HHS data.

a

The remaining 5,236 Title 42 employees had salaries below Executive Level IV ($155,500) 

HHS has converted a number of employees from positions under the 

General Schedule or other pay systems to positions under Title 42. Of the 

1,183 new Title 42 appointees in 2010, 45 of them—or about 4 percent—

were current HHS employees that were converted to Title 42 positions. 

Thirty of these conversions occurred at NIH. We also found that 

employees converted to Title 42 from other pay systems generally earned 

higher compensation than in their previous position. Employees 

converted in 2010 earned, on average, $34,000 more in base salary than 

earned in their previous position. However, many did not receive the 

same amount of nonsalary payments (including retention incentives) 

received while employed under the General Schedule or other pay 

system. Therefore, the average increase in total compensation (base 

salary and incentive or other nonsalary payments) was about $14,000 in 

2010.

Under HHS policy, Title 42 employees are eligible to receive performance 

bonuses; recruitment, retention, and relocation incentives; and other 

nonsalary payments that are available to other HHS employees.19 In 

2010, HHS issued nonsalary payments to 6,336 of its 6,697 Title 42 

employees.20

 

19According to HHS, these nonsalary payments are not made under the Title 5 authorities 

providing for such payments, but rather are made under the compensation authority of 42 

U.S.C. § 209(f) and (g).

Seventy-one percent of Title 42 employees earned ratingsbased individual cash awards. Less than 1 percent (60) of Title 42 

20The dollar value of these nonsalary payments were not available on an individual basis 

in the data provided by HHS, and as a result we could not determine the range or average 

amount of the various types of nonsalary payments.
 

Page 16 GAO-12-692 Human Capital

employees received nonsalary payments in the form of recruitment, 

retention, or relocation incentives.21

According to senior officials at HHS’s human resource office and NIH, 

Title 42 authority provides two primary benefits—appointment agility and 

compensation flexibility. 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. For example, according 

to HHS officials, the agency used Title 42 authority to quickly hire experts 

needed to develop a vaccine in response to the H1N1 flu pandemic of 

2009. Appointment agility is also important because many research 

projects, particularly those at NIH, are not meant to be long-term and Title 

42 appointments can align with project time frames better than hiring fulltime permanent staff under regular hiring authorities. In some cases, the 

temporary appointment of a researcher with highly-specialized skills to 

assist with a limited-scope, limited-duration study may be more 

appropriate than a permanent position.

According to officials, compensation flexibility helps HHS compete with 

the private sector and academia to hire and retain highly qualified 

employees with rare and critical skill sets, such as neuroscientists, 

applied researchers in dietary intakes, and engineers that can operate 

particle accelerators. HHS human resource officials stated the salaries 

HHS can offer to its top researchers are often not commensurate with 

private sector salaries. However, they said the higher compensation limits 

under Title 42 combined with other benefits—such as name recognition 

and access to advanced research equipment and technology not often 

available in the private sector or academia—can help offset 

compensation disparities and make HHS attractive to researchers, 

doctors, and scientists.

Because HHS does not consistently electronically record the authority 

under which many of its Title 42 employees were appointed, the number 

of employees hired under either section 209(f) or (g) could not be 

determined. When an employee is hired under Title 42 authority, HHS 

 

21Six of our case studies were Title 42 employees receiving an incentive payment, and in 

all six cases there was a documented basis supporting the need for the incentive.

HHS Does Not Have 

Reliable Data on the Use of 

Its Title 42 Authority
 

Page 17 GAO-12-692 Human Capital

human resource officials create a personnel record in its central 

personnel transaction system, the Enterprise Human Resources and 

Payroll (EHRP) system. A required field in the personnel record exists to 

select a code from a drop-down menu designating the general authority

under which the individual was hired, such as Title 42 or Title 5 authority. 

The personnel record also contains an open-ended text field to manually 

enter a specific section authority such as sections 209(f) or (g), applicable 

to Title 42 authority. Our analysis of HHS data found thousands of cases 

where the section authority applicable to Title 42 was not recorded in 

EHRP. We also found that when the section authority field was used, 

there were more than 400 different types of entries made in the EHRP 

records.

According to HHS officials, there are some data elements in the EHRP 

system—including the section authority under Title 42—that are 

unreliable. The majority of the unreliable data elements are those from 

nonrequired data entry fields. Whereas required fields must be completed 

before a personnel action is saved in the system, Title 42 section 

authority is a free-form, open-ended field and there is no system control in 

place to ensure the field is recorded or recorded accurately prior to saving 

the personnel action. Our case reviews found the section authority for 

appointment—such as sections 209(f) or 209(g)—was always 

documented on hard copy personnel action forms, but in many cases was 

not recorded in personnel records in the EHRP system.

We have previously reported that effective workforce planning and 

management require that human capital staff and other managers base 

their workforce analyses and decisions on complete and accurate 

personnel data.22 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.23

 

22GAO, Foreign Assistance: Strategic Workforce Planning Can Help USAID Address 

Current and Future Challenges, 

For 

example, the lack of section authority data in EHRP has made it difficult 

for HHS to provide accurate headcounts of employees hired under 

sections 209(f) or (g) and resulted in HHS overstating the number and 

GAO-03-946 (Washington, D.C.: Aug. 22, 2003).

23We conducted a variety of data tests and interviews with agency officials to correct and 

refine HHS Title 42 data and were able to develop a data set that was reliable for the 

purposes of this report.
 

Page 18 GAO-12-692 Human Capital

operating division of its employees hired under these sections to 

oversight bodies, including Congress, and in response to this audit. We 

identified more than 600 instances where HHS erroneously included 

employees in its data submission to us that were not appointed under 

sections 209(f) or (g). 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. §§ 247b-8 

and 210(g). One result of including these cases in error was HHS 

reported it had made appointments under 209(f) or (g) at the Centers for 

Medicare and Medicaid Services, which would be prohibited by law.24

HHS officials acknowledged there were potentially many cases included 

that were not employees hired under sections 209(f) or (g) as it was 

sometimes difficult to discern from available data whether employees 

were hired under sections 209(f) or (g), rather than other authorities under 

Title 42. According to human resource officials, when attempting to report 

on the agency’s Title 42 employees, they chose to include questionable 

cases rather than risk an undercount.

Our 

analysis found these appointments were made under different authorities.

HHS did not consistently adhere to certain sections of its policy for hiring 

and converting employees under section 209(f). We conducted 28 case 

file reviews of appointments made under existing section 209(f) policy to 

determine the extent to which HHS practices were consistent with its 

 

24HHS may only use sections 209(f) and (g) for appointments within PHS. According to 

HHS, the Centers for Medicare and Medicaid Services is not an operating division within 

the PHS. 

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
 

Page 19 GAO-12-692 Human Capital

policy.25

 

25HHS Personnel Instruction 42-1 (August 2004). 

While not generalizable across the population of Title 42 

employees, the case file reviews indicate that HHS appointment practices 

are consistent with some aspects of its section 209(f) policy. For example, 

all appointees met education requirements for the type of scientific 

position being filled. While not an explicit requirement of the policy, HHS 

consistently documented the basis for compensation and any recruitment 

or retention incentives provided to section 209(f) employees. In some 

cases, however, HHS did not consistently adhere to its requirements, as 

shown in table 5.
 

Page 20 GAO-12-692 Human Capital

Table 5: HHS Compliance with Certain Sections of Its Policy for Hiring and Converting Employees Under Section 209(f) for 

Cases Reviewed

Appointment requirement Observations

Appointments under section 209(f) may only be used to fill 

scientific positions.

In 5 of 28 cases, it was unclear or questionable whether the 

individuals were performing scientific duties or needed scientific 

expertise to perform their responsibilities. 

Appointments can only be made after other available personnel 

systems—including Title 5, the Senior Biomedical Research 

Service, and PHS Commissioned Corps—have failed to yield 

candidates that possess critical scientific expertise. These 

recruitment and retention efforts shall be documented prior to 

making an appointment under section 209(f).

In 23 of 28 cases no documentation was provided to show other 

non-Title 42 recruitment and retention efforts under available 

personnel systems and hiring authorities failed to yield the 

candidates with needed scientific expertise.

Conversions from other pay systems are only to be used in 

exceptional circumstances as outlined in this policy. A scientist 

may only be converted to [209(f)] from another pay system if he or 

she is appropriately peer-reviewed according to operating division 

procedures and determined to meet all of the following criteria:

• Evidence of recognition as a national or international expert in 

the field.

• Evidence of original scientific or scholarly contributions of 

major significance in the field.

• Evidence of leadership in the field equivalent to a full-tenured 

professor in academia.

• Special knowledge and skills of benefit to the agency.

HHS conversions met all of the requirements in two of six cases 

we reviewed of individuals converted to Title 42 209(f). In two 

other cases, conversions met some but not all of the criteria and 

in the remaining two cases, documentation was not available to 

support the basis for conversion.

In order to determine qualifications, supervisors must prepare a 

narrative statement fully describing the scientific duties and 

responsibilities and the education and experience to perform 

those duties.

HHS consistently prepared narrative statements describing the 

position’s duties and responsibilities and the education and 

experience needed to perform those duties.

All appointees must meet positive education requirements for the 

type of scientific position being filled, which must include, at a 

minimum, a bachelor’s degree in a scientific discipline directly 

related to the position.a In addition, appointees must have 

professional experience and stature that is commensurate with 

the duties of the position being filled.

Individuals hired under section 209(f) met or exceeded 

educational requirements and had professional experience related 

to the duties to be performed.

Source: GAO analysis of HHS documents.

a

For some Title 42 occupations, a doctoral degree or nursing degree may also be required. 

In accordance with HHS 2004 Title 42 policy, special consultants may 

only be appointed under section 209(f) to fill scientific positions; however, 

the policy included no formal criteria and did not define “scientific.” We 

reviewed the statement of duties for 28 section 209(f) cases and found in 

5 cases that it was unclear the position was scientific. For example, 

special consultants hired under section 209(f) included an individual 

providing pastoral care services, quality assurance specialists, health 

scientist administrators, and data management and technology 

administration. In one case, a protocol manager’s duties and 
 

Page 21 GAO-12-692 Human Capital

responsibilities appeared to require scientific expertise in providing 

medical protocol services. It is possible that these and most other 

positions noted are scientific in nature or require knowledge of particular 

scientific disciplines, but it was not clear from the statement of duties and 

other supporting documentation provided by HHS on what basis these 

positions were considered scientific.

Additionally, the section 209(f) policy states appointments can only be 

made after other available personnel systems, including Title 5 and PHS 

Commissioned Corps, have failed to yield candidates that possess critical 

scientific expertise. These recruitment and retention efforts, according to 

the policy, are to be documented prior to making an appointment under

section 209(f). In only 5 of the 28 section 209(f) case files we reviewed 

was there documentation showing HHS considered other personnel 

systems before using Title 42. In one case, the memorandum requesting 

approval to hire a 209(f) candidate included a template with each of the 

section 209(f) policy requirements and how each requirement was met. In 

explaining other recruitment efforts, the template showed (1) how the 

position was a top-level scientific position and therefore not appropriate 

for Title 5 or other authorities, (2) due consideration was given to the PHS 

Commissioned Corps, and (3) recruitment incentives would be insufficient 

in light of past efforts to recruit individuals with the requisite scientific 

experience.

The section 209(f) policy also includes guidance for converting 

employees from other pay systems into special consultant positions under 

Title 42. The policy states conversions are only to be used in exceptional 

circumstances and employees may only be converted to the Title 42 

program if they meet all conversion criteria, such as providing leadership 

in a field equivalent to a full-tenured professor in academia and 

recognition as a national or international expert in the field. In our case 

reviews of six conversions to section 209(f), two cases met each of the 

requirements for converting employees. In one case where each of the 

requirements was documented, NIH officials developed a memorandum 

explaining the need to convert a radiologist because radiologists in the 

particular specialty are rare, several with similar skill sets recently left 

NIH, and the individual will be maintaining equipment critical for multiple 

clinical trial protocols.

For other case files we reviewed, documentation provided by HHS did not 

support the basis for conversion. In two cases, the stated purpose of 

conversion to Title 42 was to retain a clinical research nurse and a 

medical technologist. While the justifications showed how both cases 
 

Page 22 GAO-12-692 Human Capital

provided special knowledge and skills of benefit to the agency, the 

documents did not provide evidence of recognized national or 

international expertise in their field, leadership equivalent to a full-tenured 

professor, or original scientific or scholarly contributions, as required. In 

the other two cases, we could not determine if conversion requirements 

were met because HHS could not provide documentation needed.

In August 2010, HHS’s Office of Human Resources reviewed the 

agency’s use of section 209(f) authority and found two issues similar to 

those in our review. The review found that HHS section 209(f) policy did 

not define “scientific,” and in the absence of a definition, it appeared the 

operating divisions adopted an interpretation that was most 

accommodating to the appointment. The review also found most 

appointment documentation lacked any information about prior 

recruitment and retention efforts. Recommendations from the audit report 

became the basis for a new 209(f) policy, which was issued in February 

2012.26

• Defines “scientific position” to include positions in which the 

incumbent is directly involved in or manages scientific research or 

activities, and administrative positions that require the incumbent to 

have scientific credentials.

 Significant changes to the 209(f) policy include:

• Requires that the same recruitment plan be used for both Title 5 and 

Title 42 to demonstrate that other available personnel systems failed 

to yield qualified candidates. Further, the policy also explains the 

process and documentation requirements necessary to demonstrate 

that other available personnel systems, including Title 5, the Senior 

Biomedical Research Service, and PHS Commissioned Corps, have 

failed to yield qualified candidates.

• Identifies specific positions and/or categories of positions at NIH that 

may be filled through section 209(f) without “exhausting” other 

recruitment mechanisms or authorities.

HHS has no agencywide implementing policy for appointing and 

compensating employees hired as fellows under section 209(g), including 

details about what documents are needed to support the basis for 

appointments and compensation. We have previously reported that 

 

26HHS Human Resources Manual, Instruction 42-1: Appointment of 42 U.S.C. § 209(f) 

Special Consultants (Feb. 15, 2012).

Section 209(g): Appointing 

and Compensating Fellows
 

Page 23 GAO-12-692 Human Capital

agencies should have clearly defined, well-documented, transparent, and 

consistently applied criteria for appointing and compensating personnel.27

The lack of an HHS-wide policy poses the risk that compensation 

decisions for section 209(g) fellows at HHS may not be made consistently 

across operating divisions. Although some guidance exists at the 

operating division level for setting compensation targets, in 11 of the 20 

case studies we conducted of section 209(g) fellows, we found either no 

or insufficient documentation to support the basis for compensation. 

Without an agencywide policy, an agency cannot be assured that it is 

allocating its resources most appropriately. According to senior human 

resource officials at HHS, an agencywide policy is needed and the 

agency is developing a policy for appointment and compensating fellows 

under 209(g). 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.

In lieu of guidance from HHS, the individual operating divisions 

established their own policies and guidance for appointing and 

compensating fellows under 209(g), each with different levels of detail, 

compensation limits, and documentation requirements. NIH has 

instructions for appointing fellows as well as guidance for the use of 

recruitment and retention incentives. FDA’s Service Fellowship Plan 

provides appointment and compensation setting procedures for section 

209(g) fellows and caps total compensation at Executive Level IV, with 

some exceptions above that cap available for consideration. CDC’s policy 

for its 209(g) Fellowship Program provides provisions for all fellows and

general compensation guidance. Top pay for a fellow is set at the 

equivalent of the Grade 15, Step 10 pay level.

 

27GAO, A Model of Strategic Human Capital Management, GAO-02-373SP (Washington, 

D.C.: Mar. 15, 2002).
 

Page 24 GAO-12-692 Human Capital

Congress provided EPA with the authority to use 42 U.S.C. § 209 to 

employ up to 30 persons at any one time through fiscal year 2015. EPA 

has appointed 17 fellows in ORD from 2006 to 2011 under section 209(g). 

Of the 17 fellows appointed under Title 42, 12 were hired from outside 

EPA, while the remaining 5 converted from other positions within EPA.28

Of the 17 appointments, 14 were selected through advertised 

competition. To date, all 17 fellows remain with EPA and appointments for 

the three fellows hired in 2006 have been renewed for another 5-year 

term.29

 

28Of those hired from outside of EPA, 11 were from private industry or academia, and one 

from another federal agency.

See figure 3 for the cumulative onboard Title 42 staff, by new hire 

or conversion.

29EPA policy provides that at the conclusion of their term, fellows with Title 5 permanent 

competitive status based on prior employment retain reinstatement eligibility but have no 

guarantee of return to a Title 5 position. Fellows who do not have Title 5 competitive 

status based on prior employment obtain no reinstatement eligibility due to service in a 

Title 42 position. In this case, if the employee is interested in a Title 5 position following 

the Title 42 appointment, they are subject to the normal application and competitive 

selection process.

EPA Employs a

Limited Number of 

Title 42 Fellows, 

Primarily in 

Leadership Roles
 

Page 25 GAO-12-692 Human Capital

Figure 3: Cumulative Number of EPA Title 42 Staff, 2006 through 2011

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. The agency has no plans to use authority 

under section 209(f) at this time, but may consider it in the future. Officials 

told us EPA would need to develop guidance for implementing section 

209(f) before using the authority.30

According to agency documents, Title 42 fellows at EPA lead scientific 

research initiatives, are considered experts in the related scientific 

discipline, and some manage or direct a division or office. For example:

 

30In response to a National Academy of Sciences National Research Council report in 

2000, EPA modeled its Title 42 program after the NIH program. NIH had already 

implemented its program and many structural aspects of the program are similar.
 

Page 26 GAO-12-692 Human Capital

• One Title 42 fellow manages and provides oversight for research in an 

integrated systems toxicology research program, was previously an 

Associate Dean at a university where the individual led similar 

research efforts, and leads an ORD division with more than 80 staff.

• Another leads a research program by developing biological measures 

to assess the impact of environmental exposure on human health and 

serves as Director for the Environmental Public Health Division.

• The lead scientist for bioinformatics within the National Center for 

Computational Toxicology (NCCT) is a Title 42 fellow, responsible for 

conducting data analysis and developing solutions for data 

management, and serving as senior advisor to the center’s director.

According to EPA officials, Title 42 provides two important tools EPA 

needs to achieve its mission. 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. 

Prior to using Title 42, EPA had difficulty recruiting and retaining scientists 

in certain highly specialized disciplines under regular hiring authorities. 

We reported in 2001 that EPA faced significant challenges in recruiting 

and maintaining a workforce with mission-critical skills in key technical 

areas such as environmental protection, environmental engineering, 

toxicology, and ecology.31 EPA officials told us Title 42 has helped the 

agency recruit individuals in cases where, because of the specialization of 

expertise needed, authority to set pay over the limits of other hiring 

authorities was needed to be competitive in the labor market. As such,

the minimum base salary for Title 42 employees at EPA is equal to the 

highest base pay level for employees paid under the General Schedule, 

and the maximum base salary is $250,000.32

EPA officials also stated Title 42 provides the appointment flexibility 

needed to align experts with specific skills to changing scientific priorities. 

One specific program where EPA cited the importance of using Title 42 in 

that way was in the development of the NCCT. There are four Title 42 

fellows at NCCT, including its director. The fellows assist in the 

development of NCCT initiatives, such as the Computational Toxicology 

 

31GAO, Human Capital: Implementing an Effective Workforce Strategy Would Help EPA to 

Achieve its Strategic Goals, GAO-01-812 (Washington, D.C.: July 31, 2001).

32Grade 15, Step 10 of the General Schedule at EPA’s research facilities where Title 42 

employees work include $152,364 at Research Triangle Park in North Carolina and 

$153,542 in Cincinnati, Ohio. 
 

Page 27 GAO-12-692 Human Capital

Research Program, a program that is developing alternatives to traditional 

animal testing. A 2010 review by the National Academy of Sciences 

National Research Council reported “the use of Title 42 appointments to 

develop NCCT is an excellent example of how such appointments can be 

used to build new capacity and advance the state of science.”33

Annual salaries range from approximately $153,000 to $216,000, with an 

average salary of about $176,000 and a median salary of about 

$171,000. As shown in table 6, 15 of the 17 EPA fellows had salaries 

exceeding Executive Level IV.

 EPA 

officials stated it is not the agency’s intention to hire a fellow long-term 

under Title 42, but rather employ the individual as long as a priority 

remains high. For the three fellows hired in 2006, EPA renewed the terms 

for another 5-year appointment.

Table 6: Number of EPA Title 42 Fellows with Salaries in Federal Executive Salary 

Levels, 2010

Executive level Number of fellows

At or above Executive Level I ($199,700) 3 

Within Executive Levels I and II ($179,700-199,699) 3 

Within Executive Levels II and III ($165,300-179,699) 4 

Within Executive Levels III and IV ($155,500-165,299) 5 

Below Executive Level IV ($155,500) 2 

Source: GAO analysis of EPA data.

Of the 12 new hires from outside EPA, 8 earned more in annual pay than 

earned in the position previously held, 3 earned less than in their previous 

position, and 1 appointee’s salary did not change. Salary changes from 

previous positions ranged from a decrease of $85,000 to an increase of 

$40,000, not including recruiting incentives. Eight of the 12 new hires 

received recruitment incentives ranging from $10,000 to $50,000. EPA 

documents indicate that the recruitment incentives were offered to 

compete with private industry and to aid in career transition. All five 

employees converted from other positions within EPA received a salary 

increase, ranging from $6,000 to $15,000. None of the converted 

employees received incentive payments.

 

33National Research Council of the National Academy of Sciences, The Use of Title 42 

Authority at the U.S. Environmental Protection Agency: A Letter Report (April 2010).
 

Page 28 GAO-12-692 Human Capital

Converted employees generally assumed additional responsibilities as a 

Title 42 employee. Our case studies included four of the five EPA 

employees who converted to Title 42. Of the four appointees who came 

from within EPA, one was promoted from the lead oil research program 

scientist to the director of the land remediation and pollution division, one 

moved from being an associate director to a division director within the 

same national center, one was promoted from a branch chief to a division 

director, and one remained a director.

In December 2010, EPA began a pilot of using market salary data to 

estimate salaries of what Title 42 candidates could earn in positions 

outside of government given their education, experience, professional 

standing, and other factors. EPA used the market salary data to inform 

salary negotiations for the five fellows appointed since the implementation 

of the pilot. According to EPA officials, the market salary pilot concludes 

in December 2012 and its effect will be analyzed at that time.

In appointing Title 42 fellows, EPA generally followed appointment 

guidance described in its Title 42 Operations Manual. The manual 

provides guidance for managers, supervisors, and human resources 

specialists implementing Title 42. In all 10 case files we reviewed, 

documents provided by EPA show Title 42 practices were generally 

consistent with its guidance and requirements. Table 7 shows some 

selected Title 42 appointment requirements and observations from our 

case reviews.

EPA Appointment and 

Compensation 

Practices Were 

Generally Consistent 

with Its Guidance, but 

EPA Could Improve 

Resolution of 

Potential Conflicts of 

Interest
 

Page 29 GAO-12-692 Human Capital

Table 7: EPA Appointment and Compensation Practices Were Generally Consistent with Guidance

Appointment guidance Observations

Fellows appointed under Title 42 will be assigned duties in major or 

significant areas of scientific inquiry in support of environmental 

protection.

In all 10 cases, EPA assigned the Title 42 employee to 

leadership positions within ORD’s scientific research areas. 

For all Title 42 positions, a doctoral-level degree from an 

accredited institution of higher learning is required.a

 

In all 10 cases, Title 42 employees had doctoral-level degrees 

from accredited institutions of higher learning. Appointees have 

doctorates in areas such as human genetics, soil microbiology, 

chemistry, environmental science, biophysical ecology, synthetic 

organic chemistry, biology, medicine, and anatomy.

Each Title 42 appointee will have a written position description 

which describes principal duties.

In all 10 cases, there was a written position description 

describing the background and need for the position, major 

duties and responsibilities, and supervisory controls.

Title 42 positions may be recruited through advertised competition, 

direct-hire without advertised competition, or the conversion of a 

current EPA employee hired under a regular hiring authority with or 

without advertised competition. 

In 8 of the 10 cases we reviewed, Title 42 positions were 

advertised. In one case, an employee was hired without 

advertisement, but was identified through a previous 

announcement for a different position. One case was a converted 

employee hired without advertised competition.

Title 42 appointees must have conducted outstanding research in a 

field of environmental science or engineering that is related to the 

mission of the ORD.

In all 10 cases, EPA provided documentation showing the Title 

42 employee was actively engaged in peer reviewed original 

research.

Prior to entry on duty, appointees must provide a job offer 

acceptance letter, completed background investigation form, 

completed public financial disclosure report (SF-278), written 

acknowledgement of ethics agreement, and proof of appropriate 

employment visa, if applicable.

All new Title 42 employees to the agency provided the required 

documentation. EPA did not conduct new background 

investigations for converted fellows who had a background 

investigation upon original employment with the agency.

The Assistant Administrator of the Office of Research and 

Development (AA-ORD) or designee will approve or disapprove 

recommendations for appointment.

The ORD Assistant Administrator’s approval was documented in 

all cases. 

Title 42 appointments will be made initially for a period ranging 

from 1 year and 1 day to 5 years. Such an appointment may be 

extended for varying periods, not in excess of 5 years for each 

period, and requires approval by the AA-ORD or designee upon a 

written request by the Title 42 appointee’s immediate supervisor. 

EPA appointed all Title 42 employees for a period of 5 years.

Source: GAO analysis of EPA documents.

a

In response to the National Academy of Sciences National Research Council report, EPA has 

implemented a two-year pilot to waive the requirement that all Title 42 employees have a doctorallevel degree. The report noted “[t]hat requirement may exclude many highly qualified scientist and 

engineers who do not have such degrees.” The report continued, “EPA should be flexible, taking such 

situations into account and making exceptions as appropriate.” 
 

Page 30 GAO-12-692 Human Capital

We conducted 10 case file reviews of EPA Title 42 employees and in 2 

cases we discovered issues related to EPA’s procedures for mitigating 

potential financial conflicts of interest.34 EPA’s Title 42 employees are 

subject to the same laws and regulations that govern the ethical conduct 

of other federal employees. For example, covered Title 42 employees are 

required to submit a public financial disclosure report (SF-278) as part of 

the appointment process and annually thereafter. Title 42 employees are 

also covered under the criminal conflict of interest law, 18 U.S.C. § 208. 

Section 208 prohibits a federal employee from participating personally 

and substantially in a particular matter in which he or she has a personal 

financial interest.35 The statute is intended to prevent an employee from 

allowing personal interests to affect his or her official actions and to 

protect governmental processes from actual or apparent conflicts of 

interest. The application of the statute can be waived so that an employee 

need not divest his or her financial interest or recuse themselves from the 

particular matter, where the nature and size of the financial interest and 

the nature of the matter in which the employee would participate are 

unlikely to affect an employee’s official actions.36

EPA’s Title 42 guidance includes pre-employment ethics clearance 

procedures for identifying and mitigating potential conflicts of interest prior 

to appointment. As part of the procedures, an ethics official in EPA’s 

Office of General Counsel (OGC/Ethics) works with the candidate to 

ensure that all required information is reported on the disclosure form and 

to develop an ethics agreement, as necessary, to mitigate or resolve any 

identified potential conflicts. A job offer may only be extended after 

OGC/Ethics signs the public financial disclosure report.37

 

34We did not conduct a similar review of ethics compliance at HHS because, unlike EPA, 

HHS has not included ethics procedures in its guidance specific to appointing and 

compensating Title 42 employees.

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 

35Section 208 also prohibits an employee from participating in a particular matter in which 

certain persons or organizations, with which he or she is affiliated, have a financial 

interest.

365 C.F.R. § 2640.101.

37The signature of the agency ethics official indicates the filer is in compliance with 

applicable laws and regulations.

EPA Could Improve 

Procedures for Resolving 

Potential Conflicts of 

Interest
 

Page 31 GAO-12-692 Human Capital

agreed. In two cases we reviewed, employees had potential conflict of 

interest situations arise after appointment resulting, in part, from the 

agency’s failure to ensure Title 42 employees followed agreed upon 

ethics requirements.

• In one case, EPA general counsel determined stock owned by the 

candidate could be a potential conflict of interest and directed the 

candidate to either recuse himself from certain duties or divest himself 

of the stock as a condition of employment. The candidate agreed to 

divest of the stock and was subsequently hired. A year later, during 

the routine review of the employee’s annual financial disclosure form, 

EPA discovered that the employee still owned the stock. The 

employee was ordered to divest of the stock and this time immediately 

complied. EPA also reviewed the projects for which the employee was 

involved while still owning the stock and determined that the 

employee had not participated in any particular matter which would 

have constituted a conflict of interest. According to EPA, there was 

confusion concerning who, if anyone, was tasked to ensure the 

divestiture occurred.

• In another case, based on the review of the candidate’s public 

financial disclosure form, EPA and the candidate entered into an 

ethics agreement, which documented ethical constraints that would 

apply to the candidate and to caution the candidate about certain 

assets held. The agreement listed entities in which the individual held 

stock and advised that, as required by 18 U.S.C. § 208, the individual 

should not participate in any particular matter that affected any of the 

listed entities unless the individual first obtained a written waiver from 

EPA/OGC or the value of the asset was low enough to qualify under a 

regulatory de minimis exemption.38

 

38Waivers of conflicts of interest are authorized under 18 USC § 208(b)(1) where an 

agency determines, in an individual case, that a disqualifying financial interest in a 

particular matter is not so substantial as to be deemed likely to affect the integrity of the 

employee’s service to the government. 5 C.F.R. § 2640.301. Under the regulatory de 

minimis exemption provision of 18 U.S.C. 208(b)(2), if an individual owns less than the 

designated amounts, the individual may participate in the matter. Descriptions of the 

various exemption thresholds for interests in securities are found at 5 C.F.R. § 2640.202.

Despite these efforts, a year later, 

while responding to the employee’s request for additional time to file 

the annual public financial disclosure form, EPA discovered that the 

employee was participating in a matter while holding stock in a 

company (a listed entity in the ethics agreement) that EPA/OGC 

initially believed could be affected by this matter. Concluding that the 
 

Page 32 GAO-12-692 Human Capital

employee’s participation was a conflict of interest, EPA/OGC directed 

the employee, who had been working on the matter for approximately 

3 days, to immediately stop working on the matter. The employee 

immediately complied and sold the stock holding in question in order 

to resume working on the matter. OGC/Ethics made no inquiry into 

the specific activities the employee engaged in during those 3 days. 

Almost 2 years later, OGC/Ethics officials now conclude that this 

company was not sufficiently affected by the matter to present a 

violation of 18 U.S.C. § 208 in light of facts that subsequently 

emerged.

EPA officials acknowledge that beyond these two cases, its efforts to 

identify and mitigate potential conflicts of interest after appointment can 

be improved and have taken steps to improve ethics oversight. For 

example, in order to increase overall awareness of ethics responsibilities, 

EPA reported it provided additional training to a senior ethics official and 

now copies Deputy Ethics Officials – officials responsible for assisting 

employees in being compliant with ethics requirements – when cautionary 

memoranda are issued. EPA also told us it has plans to develop 

mandatory training sessions for ethics officials in its field laboratories and 

centers and implement a process where employees hired under the Title 

42 and other authorities send EPA OGC confirmation of such actions as 

stock divestitures or signed recusals. As details and implementation 

timelines for these plans were not available at the time of our review, it is 

not clear that these plans fully consider and address ethics issues that 

arise after appointment and ensure previously agreed upon ethics 

requirements are followed, as was the issue in the two cases above.

HHS and EPA have used Title 42 to recruit and retain highly skilled, indemand personnel to government service. Although HHS relies on Title 

42 to fill some of its most critical scientific and medical research positions, 

the lack of complete data and guidance may limit the agency’s ability to 

strategically manage the use of the authority. HHS erroneously reported 

appointments made under sections 209(f) and (g) that would have been 

prohibited by law, indicating the agency’s data management practices 

may preclude effective oversight of the program and workforce planning. 

Effective oversight is particularly important in light of HHS’s increasing 

use of Title 42 and the number of employees earning salaries higher than 

most federal employees. 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. Recent changes to 209(f) policy 

issued by HHS should help the agency more consistently follow 

Conclusions
 

Page 33 GAO-12-692 Human Capital

requirements. As appointments have been made under 209(g) without 

documentation showing the basis for compensation, relying on 209(g) 

guidance issued only at the operating division level may not be sufficient 

to ensure appointments and compensation under this authority are 

appropriate and consistent. HHS has acknowledged the need for 

agencywide 209(g) guidance, but has not determined if it will include 

requiring documentation showing the basis for compensation. 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. EPA 

acknowledged it could improve its postappointment ethics oversight and 

reported it has plans to ensure that Title 42 employees send OGC 

confirmation of stock divestitures and other ethics requirements. 

However, at the time of our review, EPA had not provided us with 

implementation plans or timeframes. Although its plans appear to be 

prudent steps for addressing the specific issues that arose in the cases 

we reported, it will be important for EPA to implement them as soon as 

possible to mitigate the risk of future potential conflict of interest issues.

To help ensure HHS has the data and guidance necessary to effectively 

oversee and manage its Title 42 authority, we recommend that the 

Secretary of HHS take the following three actions:

• 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.

• 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:

− the basis for which the position is considered scientific,

− recruitment and retention efforts made under other hiring 

authorities before using Title 42,

− a conversion’s recognition as a national or international expert in 

the field,

− a conversion’s original scientific or scholarly contributions of major 

significance in the field,

− a conversion’s leadership in the field equivalent to a full-tenured 

professor in academia, and

Recommendations for 

Executive Action
 

Page 34 GAO-12-692 Human Capital

− a conversion’s special knowledge and skills of benefit to the 

agency.

• 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.

To help improve enforcement of ethics requirements, we recommend the 

Administrator of the EPA direct the Designated Agency Ethics Official:

• 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. 

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.

We provided the Secretary of Health and Human Services and the 

Administrator of the EPA an opportunity to comment on a draft of this 

report. The HHS Assistant Secretary for Legislation and EPA’s Acting 

Assistant Administrator for Research and Development provided written 

responses and technical comments, which we incorporated as 

appropriate. The agencies’ comments appear in appendix II and III. 

In a June 7, 2012, letter responding to a draft of this report, HHS agreed 

with each of the three recommendations. HHS’s ongoing and proposed 

actions noted in the response address our concerns and are likely to 

improve the agency’s management and oversight of its Title 42 authority.

HHS agreed with our first recommendation to ensure section authority is 

consistently entered in appropriate automated personnel systems. 

Specifically, HHS stated that as it moves forward with the implementation 

of a new enterprise human resources system, it will explore the possibility 

of using a drop-down field to enter Title 42 section authority. HHS stated 

that its Office of Human Resources will continue to work with the 

Operating Divisions and Staff Divisions to ensure that Title 42 personnel 

actions are processed in a consistent and accurate manner.

HHS also agreed with our two recommendations addressing Title 42 

policies. HHS stated that, in part due to our findings, it updated its section 

209(f) policy to address our concern that HHS document how policy 

requirements were fulfilled when hiring or converting section 209(f) 

Agency Comments 

and Our Evaluation
 

Page 35 GAO-12-692 Human Capital

employees. In addition, HHS agreed with our recommendation to develop 

agencywide policy for appointing and compensating employees hired 

under section 209(g) authority. HHS stated that the section 209(g) policy 

will be implemented in the near future.

In a June 6, 2012, letter responding to our draft, EPA disagreed with the 

recommendation directed to EPA and our discussion of the second ethics 

case. Specifically, EPA requested that we update our discussion to note 

that the individual had not yet visited a site related to work on the matter. 

EPA stated that since the individual had not yet visited the site, EPA is 

not aware of any evidence that the employee personally and substantially 

participated in the matter.

We do not believe a change in the discussion of this ethics matter is 

warranted. GAO made no independent conclusions as to whether the 

individual’s participation during the brief period of time we note 

constituted personal and substantial participation in the matter and 

whether this was a conflict of interest in violation of 18 U.S.C. § 208. 

Rather, our discussion of this case, including whether the individual’s 

participation was a conflict of interest, was based exclusively on and 

attributed to conclusions made by EPA/OGC, both at the time of the event 

and in subsequent interviews conducted for this engagement.

Specifically, documentary evidence at the time of our review supports the 

fact that EPA’s concern was the individual’s participation in the matter in 

general, and that EPA’s concern was not influenced by the fact that the 

individual was not yet on site. As we reported, EPA/OGC directed the 

individual to stop working on the matter when it found he owned stock in a 

company that could be affected by the matter he was working on (the 

individual immediately stopped working on the matter and sold the stock 

in order to resume working on this matter.)

EPA disagreed with our statement that it is not clear that EPA plans to 

develop an approach to address ethics issues that arise after 

appointment and ensure previously agreed upon ethics requirements are 

followed. In its comments, EPA noted that on February 17, 2012, it sent 

us a letter documenting the steps it has taken and plans to take to 

address postappointment ethics issues and ensure previously agreed 

upon ethics requirements are followed. Specifically in its February letter, 

EPA reported it recently implemented a process in which they now copy 

Deputy Ethics Officials when cautionary memoranda are issued to OGE 

278 filers. EPA also reports it has plans to implement a process for public 

filers, including employees hired under the Title 42 special hiring 
 

Page 36 GAO-12-692 Human Capital

authority, to ensure that they send OGC confirmation of stock 

divestitures, for example, or signed recusals.

We agree that providing cautionary memoranda to the officials 

responsible for assisting the employee in remaining compliant with ethics 

requirements is a step that could improve EPA’s postappointment ethics 

oversight and added this example to the report accordingly. However, 

because EPA did not provide a firm date or timelines for implementing its 

reported plan to ensure employees send OGC confirmation of stock 

divestitures or signed recusals, we did not revise the finding.

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. EPA asked that we remove the 

recommendation or revise it to acknowledge the plans mentioned above 

and that EPA continues working towards implementation.

We acknowledge EPA is considering a plan to require proof of 

compliance with ethics agreements and, because we believe this is a 

prudent and needed step for improved ethics oversight, have revised the 

recommendation to reflect EPA’s plans. As the two ethics issues we 

reported occurred over two years ago and EPA has acknowledged 

improvements in its postappointment ethics oversight are needed, such 

plans should be implemented as soon as possible. We maintain that the 

recommendation is still necessary to ensure EPA develops detailed plans 

and begins moving toward implementation as soon as possible to mitigate 

the risk of additional potential conflict of interest issues.

As agreed with your offices, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies of this report to the 

appropriate congressional committees. We are also sending copies to the 

Secretary of Health and Human Services and the Administrator of the 

Environmental Protection Agency. In addition, the report is available at no 

charge on the GAO website at http://www.gao.gov. 

If you or your staff have any questions about this report, please contact 

me at (202) 512-2757 or goldenoffr@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on 
 

Page 37 GAO-12-692 Human Capital

the last page of this report. GAO staff who made key contributions to this

report are listed in appendix IV. 

Robert N. Goldenkoff

Director, Strategic Issues
Appendix I: Objectives, Scope, and 

Methodology

Page 38 GAO-12-692 Human Capital

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. We 

determined 2006 was the most appropriate beginning year for our 

analysis because, according to HHS human resource officials, personnel 

data prior to 2006 was likely not sufficiently reliable for our analysis. Also, 

EPA began using Title 42 in 2006. HHS data presented in this report is 

2006 through the end of 2010, the last year of complete data available; 

and at EPA, 2006 through the end of 2011.

We conducted a variety of data tests and interviews with agency officials 

to correct and refine HHS Title 42 data and were able to develop a data 

set that was sufficiently reliable for our purposes. We could not, however, 

report on the number of HHS Title 42 employees hired under a particular 

section authority—sections 209(f) or (g)—because section authority is not 

consistently recorded by HHS. For EPA, we performed data testing and 

interviewed agency officials to identify any data gaps or inconsistencies 

with compensation data provided and compared EPA data to information 

found in official agency documents. We determined that EPA’s data were

sufficiently reliable for the purposes of our report.

To assess the extent to which HHS and EPA have followed applicable 

policy, guidance, and internal controls, we reviewed the policies and 

guidance at HHS and EPA in order to understand the conditions under 

which Title 42 appointees are to be recruited, appointed, compensated, 

and managed. We determined case file reviews would be the most 

appropriate approach to obtain the information needed to (1) compare 

practices with policy and guidance, and (2) provide illustrations and 

context for data analysis results. We conducted a total of 63 case file 

Appendix I: Objectives, Scope, and 

Methodology 
Appendix I: Objectives, Scope, and 

Methodology

Page 39 GAO-12-692 Human Capital

reviews out of 1,502 HHS cases within selected strata in two phases. In 

the first phase, we conducted 23 case file reviews to address data 

reliability concerns. The number of case file reviews in this phase was 

proportional to the frequency with which we identified and observed cases 

with data characteristics that deviated from our understanding of the 

purpose and use of sections 209(f) and (g). In the second phase, we 

conducted 40 case file reviews based on a random selection of cases that 

had characteristics related to various areas of HHS Title 42 policy and 

guidance.

For the HHS case file selection, cases were grouped into strata based on 

certain characteristics—such as hired under section 209(f), hired under 

section 209(g), newly hired in 2010, converted in 2010, or with aspects of 

data inconsistent with our understanding of Title 42’s purpose—and 

randomly selected from within those strata. 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. We 

developed a data collection instrument for both HHS and EPA file reviews 

to capture information that was uniform and comparable.

At the conclusion of each phase of our case file reviews, we analyzed the 

results and recorded our observations and listed the next steps—such as 

interviews with agency officials and further data analysis—needed to 

obtain further context for our observations. The results from the case file 

reviews and subsequent activities enabled us to understand the results of 

our data analyses and provided the basis for findings. We determined the 

number of case file reviews was sufficient to identify incidences where 

practices were or were not consistent with policies and guidance, but our 

findings are not generalizable to the entire population of sections 209(f) 

and (g) employees at HHS or EPA.

We conducted this performance audit from May 2011 through July 2012 

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.
Appendix II: Comments from the Department 

of Health and Human Services

Page 40 GAO-12-692 Human Capital

Appendix II: Comments from the Department 

of Health and Human Services
Appendix II: Comments from the Department 

of Health and Human Services

Page 41 GAO-12-692 Human Capital
Appendix II: Comments from the Department 

of Health and Human Services 

Page 42 GAO-12-692 Human Capital
Appendix II: Comments from the Department 

of Health and Human Services

Page 43 GAO-12-692 Human Capital
Appendix III: Comments from the 

Environmental Protection Agency

Page 44 GAO-12-692 Human Capital

Appendix III: Comments from the 

Environmental Protection Agency
Appendix III: Comments from the 

Environmental Protection Agency

Page 45 GAO-12-692 Human Capital
Appendix III: Comments from the 

Environmental Protection Agency

Page 46 GAO-12-692 Human Capital
Appendix IV: GAO Contact and Staff 

Acknowledgments

Page 47 GAO-12-692 Human Capital

Robert N. Goldenkoff, (202) 512-2757 or goldenkoffr@gao.gov

In addition to the individual named above, Trina Lewis, Assistant Director; 

Shea Bader; Carl Barden; Laurel Beedon; Andrew Ching; Sara Daleski; 

Jeffrey DeMarco; Karin Fangman; Ellen Grady; James Lager; Cynthia

Saunders; Jeff Schmerling; and Gregory Wilmoth made major 

contributions to this report.

Appendix IV: GAO Contact and Staff 

Acknowledgments 

GAO Contact

Staff 

Acknowledgments

(450920)
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