NIH abusing salary exceptions, lawmaker contends

Exception rule used to justify higher pay

By Rick Weiss, Washington Post, 2/18/2004

WASHINGTON -- A hiring practice that has allowed the National Institutes of Health to pay doctors and scientists higher salaries than the agency can pay under the standard government payroll system has come under fire from the chairman of a House oversight panel.

In a letter sent this month to Health and Human Services Secretary Tommy Thompson, Representative James Greenwood, Republican of Pennsylvania and chairman of the House Energy and Commerce subcommittee on oversight and investigations, expressed "concerns" that the pay system is being misused by the NIH and demanded legal justification for the practice.

The NIH has not crafted its formal response, but a similar inquiry three years ago resulted in scores of NIH employees having to take pay cuts. Some were even told they had to return a portion of their salaries -- an issue that is in litigation.

Greenwood's probe is the latest in a series of recent congressional inquiries into practices at the agency -- a trend that several NIH insiders said is beginning to grate on employees and affect morale. In the past several months, various lawmakers have taken the agency to task for alleged financial wrongdoing by a former director of the National Cancer Institute; funding research into sexually transmitted diseases; and perceived shortcomings in NIH's financial disclosure rules for employees.

Last July, in what NIH watchers said was an especially worrisome degree of congressional meddling, the House was just two votes short of passing an amendment that would have defunded, for political reasons, five peer-reviewed studies valued at more than $1.5 million.

At issue this time is a provision in federal law that allows HHS agencies to hire outside the General Schedule pay scale. Under the provision, "special consultants may be employed to assist and advise in the operations" of federal agencies and "may be appointed without regard to the civil-service laws."

While employees hired under the pay scale top out at about $127,000 in the Washington area, there is no statutory limitation on pay for those hired under Title 42's 209(f) provision. That has led to its use as a means of hiring high-level researchers -- especially scientist-physicians, who otherwise might not entertain the idea of giving up high-paying academic or private-sector jobs to go into public service.

The NIH employs 1,396 people, including 21 of 27 institute and center directors and one acting director, under the provision, according to officials at the 18,000-employee agency. The vast majority of those -- 1,022 -- are permanent or long-term employees.

That's too many, according to Greenwood, who contends that the provision was designed to facilitate the hiring of consultants and other temporary employees. High-level NIH employees hired under it "are improperly holding themselves out as NIH Institute Directors or other high-level titles when by law they are only special consultant employees" with very limited authority and responsibilities, he wrote to Thompson.

The Department of Health and Human Services' office of general counsel does not share Greenwood's view. In response to a letter from Greenwood two months ago, that office said that although it could find no historical evidence or written legal opinions specifically justifying the current practice, the office nonetheless believes Title 42 is an appropriate channel for hiring institute directors and other high-level employees.

Unswayed by that reasoning, Greenwood took the issue to Thompson earlier this month, asking the secretary for substantial amounts of documentation regarding NIH use of Title 42 in recent years. Thompson's office promptly forwarded that request to NIH director Elias Zerhouni.

"I'm a huge supporter of the NIH," Greenwood said in an interview last week. "But clearly [Title 42] is being used in a totally haphazard way. I don't like a system where anyone who thinks he ought to make more money can just get someone to sign off on a form."

Greenwood said he was open to finding other means of generating above-scale salaries at NIH if necessary, but for limited numbers of employees and with greater oversight.

NIH spokesman John Burklow said the agency will "work with the department and Congress to resolve these issues as expeditiously as possible."

But Burklow strongly defended the current practice, saying it was not only legal but also absolutely necessary to the NIH's mission.

"We have to be cautious not to diminish NIH's ability to attract and retain the best scientific leaders in medical research," he said. "This has become even more important in the last two years as we've had to face and respond to new public health threats like bioterrorism and SARS while continuing our efforts across the entire range of diseases affecting us all, like cancer, heart disease, and diabetes." It's not as though there is a large cadre of NIH employees pulling down huge salaries, Burklow added. About one-third of all NIH employees employed under the Title 42 provision make less than a GS-14 Step 1 salary, which is about $83,000 a year, he said. The mean salary for the group is about $118,500.

Institute directors and other top scientists and administrators earn considerably more, he acknowledged. The agency can grant salaries of up to $200,000 under Title 42 without having to go to the HHS secretary for approval, and NIH's highest-paid employee earns $235,000.

Burklow said he could not immediately identify who that employee is, but he volunteered that the director, Zerhouni, earns $174,500 -- hundreds of thousands of dollars less than he was making at the Johns Hopkins School of Medicine, where he served as executive vice dean and chairman of the department of radiology before coming to the NIH in 2002.