I

103D CONGRESS

2D SESSION H. R. 3738

To promote equitable pay practices and eliminate discrimination within the

civil service; to provide for more equitable pay practices within the

legislative branch; to require the executive branch to gather and disseminate information regarding, and to promote techniques to eliminate,

discriminatory wage-setting practices and discriminatory wage disparities

which are based on sex, race, or national origin; and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 26, 1994

Mr. ANDREWS of Texas (for himself, Ms. NORTON, Mrs. MORELLA, and Mrs.

SCHROEDER) introduced the following bill; which was referred jointly to

the Committees on Post Office and Civil Service, House Administration,

Ways and Means, and Education and Labor

A BILL

To promote equitable pay practices and eliminate discrimination within the civil service; to provide for more equitable

pay practices within the legislative branch; to require

the executive branch to gather and disseminate information regarding, and to promote techniques to eliminate,

discriminatory wage-setting practices and discriminatory

wage disparities which are based on sex, race, or national

origin; and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Pay Equity Employ3 ment Reform Act of 1994’’.

4 TITLE I—PROVISIONS RELATING

5 TO PAY AND PERSONNEL

6 PRACTICES IN THE EXECU7 TIVE BRANCH

8 SEC. 101. STATEMENT OF PURPOSE.

9 (a) PURPOSE.—The purpose of this title is to deter10 mine—

11 (1) whether the Government’s position-classi12 fication system under chapter 51 of title 5, United

13 States Code, and prevailing-rate system under sub14 chapter IV of chapter 53 of such title 5, are de15 signed and administered in a manner consistent with

16 the general policy (as expressed in title VII of the

17 Civil Rights Act of 1964 and section 6(d) of the

18 Fair Labor Standards Act of 1938) that sex, race,

19 and national origin should not be among the factors

20 considered in determining the rate of basic pay for

21 any employee or position; and

22 (2) whether the Government’s appointment and

23 promotion practices with respect to the respective

24 systems referred to in paragraph (1) are generally

25 consistent with applicable provisions of law prohibit-
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1 ing discrimination on the basis of sex, race, or na2 tional origin.

3 (b) LINKAGE WITH GENERAL SCHEDULE.—For pur4 poses of this title, subchapter III of chapter 53 of title

5 5, United States Code, shall be considered to be part of

6 the position-classification system under chapter 51 of such

7 title 5.

8 SEC. 102. STUDY REQUIREMENTS.

9 (a) METHODOLOGY.—

10 (1) IN GENERAL.—In order to carry out the

11 purpose set forth in section 101(a)(1), the appro12 priate officials (as defined in section 107(4)) shall

13 provide, by contract with the consultant selected

14 under section 103(b), for the performance of a study

15 under which objective, nondiscriminatory job-evalua16 tion techniques shall be applied with respect to a

17 representative sample of occupations, giving particu18 lar attention to occupations in which members of

19 any racial or ethnic group or either sex are dis20 proportionately represented.

21 (2) SPECIFIC COMPARISONS.—In performing

22 the study, comparisons shall be made—

23 (A) within each system and between the

24 respective systems referred to in section

25 101(a)(1); and
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1 (B) on an intraagency and interagency

2 basis.

3 (b) SEPARATE STUDY.—Under the contract, the con4 sultant shall be required to perform a separate study to

5 carry out the purpose set forth in section 101(a)(2).

6 (c) VIEWS TO BE CONSIDERED.—In carrying out its

7 responsibilities under this title, the consultant shall pro8 vide for meetings with, and give thorough consideration

9 to the views and recommendations of—

10 (1) labor organizations representing individuals

11 in Government service generally;

12 (2) employee organizations which—

13 (A) have as a purpose promoting the inter14 ests of women in Government service; and

15 (B) are composed primarily of women

16 holding positions covered by either of the sys17 tems referred to in section 101(a)(1); and

18 (3) employee organizations which—

19 (A) have as a purpose promoting the civil

20 rights of individuals in Government service; and

21 (B) are composed primarily of minority

22 group members holding positions covered by ei23 ther of the systems referred to in section

24 101(a)(1).
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1 SEC. 103. SELECTION OF A CONSULTANT.

2 (a) LIST OF QUALIFIED CONSULTANTS.—The Comp3 troller General of the United States shall prepare and, as

4 soon as possible, submit to the appropriate officials a list

5 of at least 5 consultants which, based on their impartial6 ity, expertise, and experience, the Comptroller General

7 considers appropriate to perform the studies required by

8 this title. Selections under this subsection shall be made

9 in accordance with the laws and regulations governing pro10 curements by agencies generally.

11 (b) FINAL SELECTION.—The selection of a consult12 ant to perform the studies required by this title shall be

13 made by the appropriate officials from among the consult14 ants included on the list under subsection (a).

15 SEC. 104. REPORTING REQUIREMENTS.

16 (a) DEADLINE.—The appropriate officials shall, not

17 later than 12 months after the effective date of this title,

18 submit to the President and each House of Congress—

19 (1) the consultant’s report, as described in sub20 section (b); and

21 (2) such officials’ comments with respect to the

22 report.

23 (b) MATTERS TO BE ADDRESSED IN THE CONSULT24 ANT’S REPORT.—The consultant’s report shall include—

25 (1) a list of the occupations between or among

26 which pay disparities were found to exist, even
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1 though the work performed in those respective occu2 pations involved skills, effort, responsibilities, and

3 qualification requirements which, while not identical,

4 were equivalent when taken in their totality; and

5 (2) the extent to which any pay disparities iden6 tified under paragraph (1)—

7 (A) can be accounted for by the application

8 of objective, nondiscriminatory job-evaluation

9 techniques; or

10 (B) cannot be accounted for by the appli11 cation of objective, nondiscriminatory job-eval12 uation techniques.

13 The report shall also include the consultant’s findings and

14 conclusions with respect to the matter described in section

15 101(a)(2).

16 (c) MATTERS TO BE ADDRESSED IN COMMENTS.—

17 (1) IN GENERAL.—Included as part of the com18 ments referred to in subsection (a)(2) shall be—

19 (A) a statement by the appropriate offi20 cials as to whether any disparity described in

21 subsection (b)(2)(B) may be inconsistent with

22 the general policy referred to in section

23 101(a)(1); and

24 (B) subject to paragraph (3), recommenda25 tions for any corrective action or other meas-
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1 ures which such officials consider appropriate

2 with respect to any disparities identified under

3 subparagraph (A).

4 (2) IMPLEMENTATION OF MEASURES.—The ap5 propriate officials shall identify which, if any, of the

6 recommendations under paragraph (1)(B) may be

7 carried out pursuant to any authority available

8 under existing law, and shall make recommendations

9 for any legislation or other authority needed with re10 spect to any of the other recommendations.

11 (3) LIMITATION.—The appropriate officials

12 may not make any recommendation under this title

13 which would involve a reduction in any grade or rate

14 of basic pay.

15 (d) DISSEMINATION WITHIN LEGISLATIVE

16 BRANCH.—The appropriate officials shall furnish a copy

17 of the consultant’s report, together with such officials’

18 comments, to each appointing authority in the legislative

19 branch of the Government.

20 (e) CONTINUING OVERSIGHT.—The Office of Person21 nel Management shall, not later than 6 months after the

22 requirements of subsection (a) have been met, and at least

23 annually thereafter, submit to the President and each

24 House of Congress (including the Office of Senate Fair

25 Employment Practices and the Office of Fair Employment
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1 Practices of the House of Representatives) a report

2 which—

3 (1) shall describe any progress made in imple4 menting the recommendations described in sub5 section (c)(1)(B);

6 (2) shall include information relating to levels

7 of pay for male and female employees, respectively,

8 within the same occupation in the executive branch;

9 and

10 (3) may include any other information or rec11 ommendations which the Office considers appro12 priate.

13 SEC. 105. RULE OF CONSTRUCTION.

14 Nothing in this title shall be considered to limit any

15 of the rights or remedies provided under the Civil Rights

16 Act of 1964, section 6(d) of the Fair Labor Standards

17 Act of 1938, or any other provision of law relating to dis18 crimination on the basis of race, color, religion, sex, na19 tional origin, handicap, or age.

20 SEC. 106. FUNDING.

21 Sums appropriated to the Office of Personnel Man22 agement for general operating expenses shall be available

23 to carry out this title.

24 SEC. 107. DEFINITIONS.

25 For the purpose of this title—
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1 (1) the term ‘‘occupation’’ means any grouping

2 of positions within an agency, as determined under

3 chapter 51 of title 5, United States Code, or sub4 chapter IV of chapter 53 of such title;

5 (2) the term ‘‘agency’’ means an executive

6 agency, as defined by section 105 of title 5, United

7 States Code (other than the General Accounting Of8 fice);

9 (3) the term ‘‘consultant’’ includes an organiza10 tion which provides consultant services;

11 (4) the term ‘‘appropriate officials’’ means the

12 Director of the Office of Personnel Management, the

13 Director of the Office of Management and Budget,

14 and the Secretary of Labor;

15 (5) the term ‘‘labor organization’’ has the

16 meaning given that term by section 7103(a)(4) of

17 title 5, United States Codes; and

18 (6) the term ‘‘Government’’ means the Govern19 ment of the United States.

20 SEC. 108. EFFECTIVE DATE.

21 This title shall take effect 30 days after the date of

22 the enactment of this Act.
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1 TITLE II—PROVISIONS RELAT2 ING TO PAY AND PERSONNEL

3 PRACTICES IN THE LEGISLA4 TIVE BRANCH

5 SEC. 201. RESPONSIBILITIES OF THE GENERAL ACCOUNT6 ING OFFICE.

7 The General Accounting Office shall—

8 (1) with respect to positions in the legislative

9 branch to which title VII of the Civil Rights Act of

10 1964 and section 6(d) of the Fair Labor Standards

11 Act of 1938 apply, perform studies similar to those

12 required under title I; and

13 (2) develop a comprehensive plan under which

14 the general principles set forth in section 101(a)

15 may be made applicable to positions in the legislative

16 branch other than those described in paragraph (1).

17 SEC. 202. REPORTING REQUIREMENT.

18 The General Accounting Office shall submit a written

19 report to the President and each House of Congress not

20 later than 12 months after the date of the enactment of

21 this Act. Included in such report shall be—

22 (1) the findings and conclusions of its studies

23 under section 201(1), together with any rec24 ommendations which the General Accounting Office

25 considers appropriate; and
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1 (2) the details of its comprehensive plan, as re2 quired under section 201(2).

3 TITLE III—DISCRIMINATORY

4 WAGE-SETTING PRACTICES

5 AND DISCRIMINATORY WAGE

6 DISPARITIES

7 Subtitle A—Technical Assistance

8 SEC. 301. STATEMENT OF PURPOSE.

9 Recognizing that the identification and elimination of

10 discriminatory wage-setting practices and discriminatory

11 wage disparities are in the public interest, the purpose of

12 this subtitle is to help eliminate such practices and dis13 parities by—

14 (1) providing for the development and utiliza15 tion of techniques that will promote the establish16 ment of wage rates based on the work performed

17 and other appropriate factors, rather than the sex,

18 race, or national origin of the employee; and

19 (2) providing for the public dissemination of in20 formation relating to the techniques described in

21 paragraph (1), thereby encouraging and stimulating

22 public and private employers, through the use of

23 such techniques, to correct wage-setting practices

24 and eliminate wage disparities, to the extent that

25 they are based on the sex, race, or national origin
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1 of the employee, rather than the work performed

2 and other appropriate factors.

3 SEC. 302. PROGRAM SPECIFICATIONS.

4 In order to carry out the purpose of this subtitle, the

5 Secretary of Labor shall develop and carry out a continu6 ing program under which, among other things, the Sec7 retary shall—

8 (1) develop and implement a program for the

9 dissemination of information on efforts being made

10 in the private and public sectors to reduce or elimi11 nate wage disparities, to the extent that they are

12 based on the sex, race, or national origin of the em13 ployee, rather than the work performed and other

14 appropriate factors;

15 (2) undertake and promote research into the

16 development of techniques to reduce or eliminate

17 wage disparities, to the extent that they are based

18 on the sex, race, or national origin of the employee,

19 rather than the work performed and other appro20 priate factors; and

21 (3) develop and implement a program for pro22 viding appropriate technical assistance to any public

23 or private entity requesting such assistance to cor24 rect wage-setting practices or to eliminate wage dis25 parities, to the extent that they are based on the
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1 sex, race, or national origin of the employee, rather

2 than the work performed and other appropriate fac3 tors.

4 SEC. 303. DEFINITION.

5 For the purpose of this subtitle, the term ‘‘other ap6 propriate factors’’ includes factors such as—

7 (1) the skill, effort, responsibilities, and quali8 fication requirements for the work involved, taken in

9 their totality;

10 (2) geographic location and working conditions;

11 and

12 (3) seniority, merit, productivity, education, and

13 work experience.

14 Subtitle B—Wage Discrimination

15 Based on Sex, Race, or National

16 Origin

17 SEC. 351. AUTHORIZATION OF APPROPRIATIONS.

18 There is authorized to be appropriated to the Equal

19 Employment Opportunity Commission $100,000,000 for

20 each of the fiscal years 1995, 1996, 1997, 1998, and

21 1999, to be expended—

22 (1) to enforce the provisions of those laws ad23 ministered by the Commission that relate to wage

24 discrimination based on sex, race, or national origin;

25 and
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1 (2) to carry out activities to increase public

2 awareness of the right to be free from such wage

3 discrimination that violates such laws.

4 Subtitle C—Compliance With

5 Executive Order 11246

6 The Secretary of Labor shall develop and implement

7 standard procedures to review compliance with Executive

8 Order 11246 in every contract audited through the con9 tract compliance program of the Department of Labor.

10 Subtitle D—Amendments To

11 Achieve Budget Neutrality

12 SEC. 381. ESTABLISHMENT OF STANDARD PAYMENT RATES

13 FOR HOME HEALTH SERVICES.

14 (a) IN GENERAL.—

15 (1) STANDARD PAYMENT RATES DESCRIBED.—

16 Title XVIII of the Social Security Act is amended by

17 inserting after section 1889 the following new sec18 tion:

19 ‘‘STANDARD PAYMENT RATES FOR HOME HEALTH

20 SERVICES

21 ‘‘SEC. 1890. (a) IN GENERAL.—Notwithstanding sec22 tion 1814(b)(1), section 1833(a)(2)(A), or any other pro23 vision of this title, the amount of payment made under

24 this title for home health services furnished by a home

25 health agency on or after January 1, 1994, shall equal

26 the adjusted standard per visit payment rate determined
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1 under subsection (b) for the category of home health serv2 ices involved (as defined in subsection (d)(1)) for the fiscal

3 year during which the services are furnished.

4 ‘‘(b) DETERMINATION OF ADJUSTED STANDARD PER

5 VISIT PAYMENT RATES.—

6 ‘‘(1) IN GENERAL.—The adjusted standard per

7 visit payment rate for home health services fur8 nished in a fiscal year is equal to—

9 ‘‘(A) the base per visit rate for the cat10 egory of home health services involved for the

11 fiscal year determined under paragraph (2), ad12 justed for area wage differences under para13 graph (3); and

14 ‘‘(B) in the case of home health services in

15 the category of services described in subsection

16 (d)(1)(A) that involve the furnishing of non17 routine medical supplies directly identifiable as

18 services for an individual patient (but not in19 cluding durable medical equipment, prosthetic

20 devices, or orthotics and prosthetics), the

21 amount described in subparagraph (A) in22 creased by the medical supply add-on described

23 in paragraph (4).

24 ‘‘(2) BASE PER VISIT RATE.—
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1 ‘‘(A) INITIAL RATE.—The base per visit

2 rate for a category of home health services fur3 nished by a home health agency in fiscal year

4 1994 shall be an amount equal to 93 percent of

5 the mean of the labor-related and nonlabor

6 costs for that category of services utilized for

7 purposes of computing limits under section

8 1861(v)(1)(L) for cost reporting periods begin9 ning on or after July 1, 1993, and before July

10 1, 1994, increased by the cost reporting period

11 adjustment factor for January 1994 (as speci12 fied in the regulation setting forth such limits).

13 ‘‘(B) SUBSEQUENT YEARS.—The base per

14 visit rate for a category of home health services

15 furnished by a home health agency in a fiscal

16 year beginning on or after October 1, 1994 is

17 the base per visit rate for that category of serv18 ices for the preceding fiscal year increased by

19 the home health market basket percentage in20 crease (as defined in subsection (d)(2)) for such

21 fiscal year.

22 ‘‘(3) ADJUSTING FOR AREA WAGE LEVELS.—

23 The Secretary shall adjust the base per visit rate de24 termined under paragraph (2) for home health serv25 ices furnished by a home health agency for a fiscal
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1 year by utilizing the area wage index applicable dur2 ing the fiscal year under section 1886(d)(3)(E) to

3 hospitals located in the geographic area in which the

4 agency is located (determined without regard to

5 whether such hospitals have been reclassified to a

6 new geographic area pursuant to section

7 1886(d)(8)(B), a decision of the Medicare Geo8 graphic Classification Review Board or the Secretary

9 under section 1886(d)(10)).

10 ‘‘(4) MEDICAL SUPPLY ADD-ON DESCRIBED.—

11 The medical supply add-on described in this para12 graph is equal to—

13 ‘‘(A) for fiscal year 1994, the estimated

14 national average cost of non-routine medical

15 supplies directly identifiable as services for an

16 individual patient (but not including durable

17 medical equipment, prosthetic devices, or

18 orthotics and prosthetics) associated with a

19 home health visit, as estimated by the Secretary

20 based upon the best data available and updated

21 through fiscal year 1994 by the Secretary’s es22 timate of the increase in the medical equipment

23 and supplies component of the supplies and

24 rental consumer price index for all urban con25 sumers (U.S. city average), from the end of the
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1 period from which the data was drawn through

2 fiscal year 1994; and

3 ‘‘(B) for a subsequent fiscal year, the add4 on for the preceding fiscal year increased by the

5 Secretary’s estimate of the percentage increase

6 in the index referred to in subparagraph (A) for

7 the fiscal year involved.

8 ‘‘(c) COST REPORTING REQUIREMENTS.—

9 ‘‘(1) IN GENERAL.— Not later than January 1,

10 1994, the Secretary shall implement a system under

11 which a random sample of home health agencies

12 shall submit cost reports. Cost reports submitted

13 under such system shall be used solely for purposes

14 of comparing the costs of home health agencies with

15 the adjusted standard payment rates established

16 under subsection (b).

17 ‘‘(2) SYSTEM DESCRIBED.—The system devel18 oped under paragraph (1) shall—

19 ‘‘(A) utilize a different random sample of

20 agencies for each 12-month period,

21 ‘‘(B) include in such random sample 5 per22 cent of all home health agencies, and

23 ‘‘(C) to the greatest extent practicable and

24 consistent with the preceding provisions of this

25 paragraph, avoid requiring a home health agen-
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1 cy to submit a cost report pursuant to para2 graph (1) more than once in any 5-year period.

3 ‘‘(3) REPORTS OF ADDITIONAL AGENCIES.—

4 Any home health agency that is not required to sub5 mit a cost report pursuant to paragraph (1) for a

6 cost reporting period may be required by the Sec7 retary to submit a simplified cost report for such pe8 riod, in accordance with regulations issued by the

9 Secretary. The Secretary may use such reports sole10 ly for the purposes described in such paragraph.

11 ‘‘(d) DEFINITIONS.—For purposes of this section:

12 ‘‘(1) The term ‘category of home health serv13 ices’ means any one of the following home health

14 services:

15 ‘‘(A) Skilled nursing services.

16 ‘‘(B) Physical therapy services.

17 ‘‘(C) Occupational therapy services.

18 ‘‘(D) Speech therapy services.

19 ‘‘(E) Medical social services.

20 ‘‘(F) Home health aide services.

21 ‘‘(2) The term ‘home health market basket per22 centage increase’ means, with respect to a fiscal

23 year, the percentage by which the cost of the mix of

24 goods and services comprising home health services

25 will exceed the cost of such mix of goods and serv-
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1 ices for the preceding fiscal year, as estimated by

2 the Secretary before the fiscal year begins.’’.

3 (2) EXCEPTIONS AND ADJUSTMENTS FOR

4 COSTS SIGNIFICANTLY IN EXCESS OF PAYMENTS.—

5 The Secretary of Health and Human Services shall

6 provide by regulation for such exceptions and adjust7 ments to the payment amounts established for home

8 health services under section 1890(a) of the Social

9 Security Act (as added by paragraph (1)) as the

10 Secretary deems appropriate for services for which a

11 home health agency incurs costs that significantly

12 exceed such payment amounts for reasons beyond

13 the agency’s control, subject to any limits the Sec14 retary may establish to ensure that such an excep15 tion or adjustment does not result in the reimburse16 ment of any costs that the Secretary does not find

17 to be reasonable.

18 (b) CONFORMING AMENDMENTS.—

19 (1) AMENDMENTS RELATING TO PART A.—(A)

20 Section 1814(b) of such Act (42 U.S.C. 1395f(b)) is

21 amended in the matter preceding paragraph (1) by

22 striking ‘‘1813 and 1886’’ and inserting ‘‘1813,

23 1886, and 1890’’.

24 (B) Section 1813(a)(5) of such Act, as added

25 by section 604(a)(1), is amended by striking ‘‘the
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1 average of all the per visit costs’’ and all that follows

2 and inserting ‘‘the payment amount determined for

3 such services under section 1890(a).’’.

4 (2) AMENDMENTS RELATING TO PART B.—(A)

5 Section 1832(a)(2)(F) of such Act, as added by sec6 tion 604(a)(2), is amended—

7 (i) by amending clause (i) to read as fol8 lows:

9 ‘‘(i) the payment amount determined

10 for such service under section 1890(a), less

11 the amount a provider may charge as de12 scribed in clause (ii) of section

13 1866(a)(2)(A);’’; and

14 (ii) in the matter following clause (iii), by

15 striking ‘‘the average of all the per visit costs’’

16 and all that follows and inserting ‘‘the payment

17 amount determined for such services under sec18 tion 1890(a).’’.

19 (B) Section 1861(v)(1)(L) of such Act (42

20 U.S.C. 1395x(v)(1)(L)) is amended by adding at the

21 end the following new clause:

22 ‘‘(iv) Clauses (i), (ii), and (iii) shall not apply to any

23 services furnished on or after January 1, 1994.’’.
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1 (c) EFFECTIVE DATE.—The amendments made by

2 this section shall apply to services furnished during cost

3 reporting periods beginning on or after January 1, 1994.

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