HHS Instruction: 304-1: Appointment of Experts and Consultants

Effective Date: 08/17/2023

Material Transmitted:

HHS Instruction 304-1, Appointment of Experts and Consultants, dated 08/17/2023.

Material Superseded:

HHS Instruction 304-1, Appointment of Experts and Consultants, dated 04/21/2023.

Background:

This Instruction has been revised to update eligibility for federal benefits due to a OPM regulatory change extending the Federal Employees Dental and Vision Insurance Program (FEDVIP) to certain employees on temporary or intermitted employment.

This policy is effective immediately and must be carried out by HHS Operating and Staff Division HR Centers in accordance with applicable laws, regulations, collective bargaining agreements, and Departmental policy.

/s/

W. Robert Leavitt
Deputy Assistant Secretary for Human Resources
Chief Human Capital Officer

Subject: Appointment of Experts and Consultants

304-1-00   Purpose
304-1-10   Coverage and Exclusions
304-1-20   References
304-1-30   Definitions
304-1-40   Responsibilities
304-1-50   Appointment and Reappointment
304-1-60   Compensation, Leave, and Benefits
304-1-70   Appeal Rights
304-1-80   Personnel Actions
304-1-90   Documentation, Reporting, and Accountability

304-1-00 Purpose

This Instruction establishes policy, responsibility and requirements on the appointment and compensation of individuals hired under Title 5, United States Code (U.S.C.) Section 3109 and 5 Code of Federal Regulations (CFR) Part 304.

When provisions of this policy differ from changes in applicable law or regulation, the changes in law or regulation apply. 

304-1-10 Coverage and Exclusions

  1. Coverage.
    1. This Instruction covers all paid and unpaid appointments under 5 U.S.C. §3109 to provide professional or technical expertise that does not exist or is not readily available within HHS, or to perform services that are not of a continuing nature and/or could not be performed by HHS employees. 
    2. The HHS Secretary may obtain in accordance with 5 U.S.C. §3109, but without regard to the time limitations under 5 U.S.C. §3109, services for not more than 50 experts or consultants who have scientific or professional qualifications in the Agency for Healthcare Research and Quality (AHRQ), 42 U.S.C. §299c-5(f). 
    3. The Assistant Secretary of the Substance Abuse and Mental Health Services Administration (SAMHSA) may obtain in accordance with 5 U.S.C. §3109, but without regard to the time limitations under 5 U.S.C. §3109, services for not more than 20 experts or consultants who have professional qualifications, 42 U.S.C. §290aa(h) .  
    4. The Director of the National Institutes of Health (NIH) may appoint in accordance with 5 U.S.C. §3109, but without regard to the time limitations under 5 U.S.C. §3109, up to 220 NIH experts and consultants with scientific or other professional qualifications, 42 U.S.C. §282d. 
    5. The Director of the National Cancer Institute (NIH NCI) may obtain after consultation with the NCI advisory council and in accordance with 5 U.S.C. §3109, but without regard to the time limitations under 5 U.S.C. §3109, the services of not more than 151 experts or consultants who have scientific or professional qualifications, 42 U.S.C. §285a–2(b)(5). 
  2. Exclusions.  In accordance with 5 CFR Part 304, this Instruction does not apply to: 
    1. Procurement of expert or consultant services by contracts.
    2. Expert or consultant appointments via other employment authorities (e.g., 5 CFR §213.3102(l)), 42 U.S.C. §209(f), etc.); or
    3. Positions or work listed under 5 CFR §304.103(b).
    4. As of the date of this policy, the Food and Drug Administration (FDA) does not have authorization to use 5 U.S.C. 3109 to hire or pay experts or consultants, and the Indian Health Service (IHS) has temporary authorization through its FY2023 annual appropriations to use 5 U.S.C. §3109 to hire or pay experts or consultants.  In accordance with 5 U.S.C. §3109(b), FDA and/or IHS must establish a provision in its annual appropriations, i.e., for FDA, the Department of Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, or for IHS, the Department of Interior, Environment, and Related Agencies Appropriations Act, or other statute before using 5 U.S.C. §3109. 
  3. Bargaining Unit Employees.  The provisions of this Instruction pertaining to conditions of employment of bargaining unit employees are fully negotiable in accordance with 5 U.S.C. Chapter 71, and such actions require notification to labor organizations when impacted employees are bargaining unit employees.  When the provisions of this Instruction differ from the requirements contained in applicable collective bargaining agreement(s), the collective bargaining agreement takes precedence for bargaining unit employees.

304-1-20 References

  1. Permanent authority for HHS (except FDA and IHS) to use 5 U.S.C. §3109:  Departments of Labor, Health and Human Services, and Education and Related Agencies Appropriations Act, 1993, Public Law 102-394, Title V, §503, 106 Stat. 1825 (Oct. 6, 1992).

    SEC. 503.  Appropriations contained in this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts, available for salaries and expenses, shall be available for services as authorized by 5 U.S.C. §3109 but at rates for individuals not to exceed the per diem rate equivalent to the maximum rate payable for senior-level positions under 5 U.S.C. §5376. 1
  2. 42 U.S.C. §282d, Director National Institutes of Health, Services of experts or consultants
  3. 42 U.S.C. §285a–2(b)(5), Special Authorities of Director [National Cancer Institute]
  4. 42 U.S.C. §290aa(h), Substance Abuse and Mental Health Services Administration, Services of Experts
  5. 42 U.S.C. §299c-5(f), Agency for Healthcare Research and Quality, Certain Administrative Authorities, Experts
  6. 5 U.S.C. §3109, Employment of Experts and Consultants; temporary or intermittent
  7. 5 U.S.C. §5533(d)(1), Dual Pay for More than One Position; Exceptions
  8. 5 CFR Part 304, Expert and Consultant Appointments
  9. OPM Fact Sheet:  Expert and Consultant Pay

304-1-30 Definitions

  1. Advisory committee member.  Is appointed as an expert or consultant pursuant to 5 U.S.C. §3109 to serve on a federal advisory committee per Appointment of Consultants to FACA | GSA.  The requirements in this Instruction apply to these appointments. 
  2. Agency.   HHS (5 U.S.C. §105 and 5 CFR §304.102(a)).   
  3. Consultant.  A person who can provide valuable and pertinent advice generally drawn from a high degree of broad administrative, professional, or technical knowledge or experience (5 CFR §304.102(b)).
  4. Expert.  A person who is specially qualified by education and experience to perform difficult and challenging tasks in a particular field beyond the usual range of achievement of competent persons in that field.  An expert is regarded by other persons in the field as an authority or practitioner of unusual competence and skill in a professional, scientific, technical or other activity (5 CFR §304.102(d)).
  5. Intermittent employment.  Employment without a regularly scheduled tour of duty (5 CFR §304.102(f)).
  6. Service year.  The calendar year that begins on the date of the individual's initial appointment in the agency (5 CFR §304.103(c)(2)(i)).
  7. Temporary employment.  Employment not to exceed one (1) year.  An expert or consultant serving under a temporary appointment may have a full-time, part-time, seasonal, or intermittent work schedule (5 CFR §304.102(g)).
  8. Employment without compensation.  Unpaid (not volunteer) service that is provided at the agency’s request to perform duties that are unclassified.  Unpaid employees must agree in advance in writing to waive any claim for compensation for their services (5 CFR §§304.102(h) and 304.104(c)).

304-1-40 Responsibilities

  1.  HHS Assistant Secretary for Administration, Office of Human Resources (ASA/OHR):
    1. Establishes Department-wide human resources policy and guidance consistent with HHS and Office of Personnel Management (OPM) policy, procedures guidance and all applicable federal laws and regulations.
    2. Submits requests to OPM for approval of reappointments that are an exception to the limits outlined in 5 CFR §304.103(c), when necessitated by unforeseen or unusual circumstances.
    3. Submits a Department-wide annual report to OPM, as required by law and regulation.
    4. Periodically reviews Operating Division and Staff Division (OpDiv/StaffDiv) Expert and Consultant appointments to assure conformance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
  2. OpDiv/StaffDiv Human Resources Centers (HR Centers):
    1. Comply with this Instruction, any HHS and OPM policy, procedures guidance and all applicable federal laws and regulations.
    2. Ensure the need for experts and consultants, or continuing need in cases of reappointment, is appropriately justified and documented.
    3. Set and adjust pay in accordance with law, regulation, this Instruction, and OPM’s Fact Sheet: Expert and Consultant Pay; or, when applicable, obtain and maintain an expert/consultant’s written compensation waiver pursuant to 5 CFR §304.104(c).
    4. Ensure HR staff receive training and information to ensure that officials and employees using the authority understand the statutory and regulatory requirements, in accordance with 5 CFR §304.108(a)(1).
    5. Ensure an annual review of, and report on, expert and consultant appointments to ensure compliance with 5 U.S.C. §3109, 5 CFR Part 304, and this Instruction.

304-1-50 Appointment and Reappointment

  1. Individuals appointed under 5 U.S.C. §3109 are specifically exempted from the provisions related to competitive examination (5 CFR Part 332), position classification (5 U.S.C. Chapter 51), and General Schedule pay setting (5 U.S.C. Chapter 53, Subchapter III), in accordance with 5 CFR §304.103(a).
  2. Appointments may be made on:
    1. A temporary basis (i.e., up to one (1) year); or
    2. A strictly intermittent basis without time limit or for a period determined by the employing OpDiv/StaffDiv. 
  3. Individuals appointed on a temporary basis may be reappointed within the agency (i.e., HHS), in accordance with 5 CFR §304.103(c) and this Instruction, unless otherwise authorized by statute:
    1. OpDivs/StaffDivs may reappoint temporary experts or consultants to perform demonstrably different duties without regard to the length of that individual’s previous expert or consultant service with HHS (5 CFR §304.103(c)).
    2. OpDivs/StaffDivs may reappoint temporary experts and consultants to perform substantially the same duties subject to the following limitations (5 CFR §304.103(c)(1-2)):
      1. An individual who works on a full-time work schedule may be appointed under 5 U.S.C. §3109 at HHS for a maximum of two (2) years (i.e., on an initial appointment not to exceed one (1) year and a reappointment not to exceed one (1) additional year).
      2. An individual who works on a part-time or intermittent work schedule may be reappointed under one of the following options. The OpDiv/StaffDiv must determine which option it will use in advance of the reappointment and must base its determination on objective criteria (e.g., nature of duties, pay level, whether or not work is regularly scheduled.)  Note:  Option 1 must be applied to reappointments of individuals appointed without compensation.
        1. Option 1 -- Annual service.  An expert or consultant may be reappointed, with no limit on the number of reappointments, as long as the individual is paid for no more than six (6) months (130 days or 1,040 hours) of work (or works for no more than that amount of time without compensation) in a service year.  An expert or consultant who exceeds this limit in his/her first service year may be reappointed for one (1) additional year.  An expert or consultant who exceeds the limit during any subsequent service year may not be reappointed.    
        2. Option 2 -- Cumulative earnings.  Under Option 2, HHS experts or consultants have a lifetime limit of twice the maximum applicable salary rate, in accordance with 5 U.S.C. §3109(b), the Appropriation Act(s) listed in this Instruction, and 5 CFR §304.103(c)(2)(ii). OpDivs/StaffDivs may reappoint an individual until his/her total earnings from expert or consultant employment within HHS reach the lifetime maximum, as determined by using the applicable maximum salary rate.  At that point, the employment must be terminated.

304-1-60 Compensation, Leave, and Benefits

  1. Experts and consultants are generally covered by the laws that apply to federal employees, including laws related to compensation, leave, overtime, reduction of basic pay by amount of annuity received, reduction of military pay, etc., subject to the provisions described under 5 U.S.C. Chapter 63; 5 CFR §304.106; and this Instruction.  
  2. The rate of basic pay for individuals hired under 5 U.S.C. §3109 is set by the OpDiv/StaffDiv on an hourly or daily basis, not to exceed the pay limits specified in the appropriation or other statute that authorizes the appointment (5 U.S.C. §3109(b); HHS Appropriations Act(s) listed this Instruction;    5 CFR §304.104 and 105). 
  3. The Departments of Labor, Health and Human Services, and Education and Related Agencies Appropriations Act, 1993 (Public Law 102-394, Title V, §503, 106 Stat. 1825 (Oct. 6, 1992)) covers all HHS OpDivs/StaffDivs, with the exception of Food and Drug Administration (FDA) and the Indian Health Service (IHS), and gives permanent authorization to set pay for services authorized by 5 U.S.C. §3109 at rates not to exceed the daily rate equivalent to the maximum rate payable for senior-level positions under 5 U.S.C. §5376.  The maximum rate of pay cannot exceed Level IV of the Executive Schedule which was the maximum rate of basic pay for senior level positions under 5 U.S.C. 5376 when the permanent appropriations cap was enacted in 1993 (OPM Memo, New SL/ST Pay System, dated April 2, 2009, and Pay for Consultants and Scientists Appointed under Title 42, B-323357 (Comp. Gen. July 11, 2012).
  4. The initial rate of basic pay is determined in consideration with the following factors:
    1. The level and difficulty of the work to be performed;
    2. The qualifications of the expert or consultant;
    3. The pay rates of comparable individuals performing similar work in the Federal or non-Federal sectors; and
    4. The availability of qualified candidates (5 CFR §304.104(b)).
  5. An expert or consultant may be employed without compensation, provided the individual agrees in advance in writing to waive any claim for compensation for those services (5 CFR §304.104(c)). 
  6. Because individuals appointed under 5 U.S.C. §3109 are explicitly exempted from the general schedule (5 CFR §304.103(a)(1)), those paid on a daily basis are not entitled to overtime. However, experts and consultants who are nonexempt from the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) may be entitled to overtime pay under FLSA (5 CFR §304.106(c) and 5 CFR Part 551).
  7. Experts and consultants who have a regular scheduled tour of duty qualify for premium pay if they meet the applicable eligibility requirements under 5 U.S.C. §§5541-5550b. 
  8. Experts and consultants are not entitled to receive locality pay adjustments or automatic  adjustments in their rates of basic pay at the time of general pay increases described under 5 U.S.C. 5303 since they are not General Schedule employees.  Such pay adjustments are at the OpDiv/StaffDiv’s discretion, unless specifically authorized in the employee’s official appointing document.  (5 CFR §304.106(a) and OPM Fact Sheet: Expert and Consultant Pay)
  9. OpDivs/StaffDivs have the authority to adjust the pay of experts and consultants after initial appointment, in accordance with its internal guidance on the amount and timing of expert and consultant pay adjustments and subject the pay limitations in this Instruction.  In addition to the factors listed above, job performance, contributions to OpDiv/StaffDiv mission, and the general pay increases given to other OpDiv/StaffDiv employees are considered in determining pay adjustments in accordance with 5 CFR §304.106(a). 
  10. Experts and consultants may be paid on an intermittent basis for more than one (1) expert or consultant appointment; however, they may not be paid for service for the same days/hours (5 CFR §304.106(d)). OpDivs/StaffDivs should inquire at the time of appointment if the individual is currently serving on another expert or consultant appointment and advise the employee of this pay restriction and their responsibility to inform HHS if their employment status changes to avoid financial indebtedness.
  11. Experts and consultants with a regular tour of duty (i.e., not intermittent) are covered by the leave provisions under 5 U.S.C. Chapter 63 (5 CFR §304.106(g) and OPM Fact Sheet: Expert and Consultant Pay).
  12. Experts and consultants whose service is intermittent or are serving under a temporary appointment for one year or less are not covered under the Federal Employees Retirement System and are generally ineligible for health benefits, life insurance, or retirement with limited regulatory exceptions.  If an employee currently covered by federal retirement, life insurance, or health benefits is appointed as an expert or consultant without a break in service or after a separation from service of three days or less, coverage is continued.  To continue life insurance coverage for an intermittent employee, there must be an expectation that the employee will return to the previous position on a full-time basis (See 5 CFR §§ 831.201; 870.302; 890.102).  HR Centers and employees should consult their servicing HR benefits specialist concerning eligibility or the continuation of federal benefits.
  13. See OPM Fact Sheet: Expert and Consultant Pay for additional guidance on calculating rates of pay; locality payments; overtime and other premium pay; and leave benefits.
  14. Experts and consultants are not covered by the HHS Performance Management Appraisal Program (HHS Instruction 430-1, Performance Management Appraisal Program).  They are eligible for awards in accordance with HHS Instruction 451-1, Awards.  Questions on performance and awards should be sent to HCP-HHS@hhs.gov.  

304-1-70 Appeal Rights

In some circumstances, individuals appointed as an expert or consultant under 5 U.S.C. §3109 may have appeal rights to the Merit Systems Protection Board (MSPB).  Excepted service employees who meet the definition of ‘employee’ under 5 U.S.C §7511(a)(1)(B-C) generally have appeal rights to the MSPB for adverse actions. Servicing employee relations staff should be consulted when dealing with unacceptable performance and/or employee misconduct to ensure actions are in compliance with law, regulations, HHS policy, and applicable collective bargaining agreement(s).

304-1-80 Personnel Actions

  1. When processing personnel actions, OPM’s Guide to Processing Personnel Actions (GPPA), Chapter 11, Excepted Service Appointments, is used (Authority Code, H2L; and Legal Authority, Reg. 304.103).
  2. Authority code ‘ZLM’ is also cited with the applicable Appropriations Act or statute that authorizes the appointment under 5 U.S.C. §3109 (see Coverage and References), in accordance with the GPPA:  
    1. ZLM and the Appropriations Act that authorizes the OpDiv/StaffDiv to appoint and pay experts and consultants under 5 U.S.C. §3109; and additionally
    2. (For AHRQ, NIH, and SAMHSA as of the date of this policy) ZLM and the Title 42 statute that authorizes the OpDiv/StaffDiv to appoint a specific number of experts and consultants without regard to 5 U.S.C. §3109 appointment time limits.
  3. Position title is “Expert” or “Consultant.”  Series “0000” and no General Schedule grade are assigned.  (5 CFR §304.103(a)(1))
  4. The ED, EF, or EH pay plan is used for Experts and Consultants covered under this policy in accordance with the OPM’s Data Standards.  
  5. Tenure is assigned in accordance with OPM’s Data Standards. Generally, time-limited, or temporary appointments are Tenure Code 3.
  6. Remark code E21 should be used for individuals who are designated ‘special government employees,’ as defined under 18 U.S.C. §202.  Questions regarding this ethics designation should be directed to an OpDiv/StaffDiv’s servicing ethics office.  A list of servicing Deputy Ethics Counselors and Ethics Coordinators can be found at https://www.hhs.gov/about/agencies/ogc/contact-ogc/agency-deputy-ethics-counselors-and-ethics-coordinators/index.html.

304-1-90 Documentation, Reporting, and Accountability

  1. Documentation.  
    1. To justify an appointment under 5 U.S.C. §3109, OpDivs/StaffDivs should record:
      1. Name of employee;
      2. Resume;
      3. Rate of pay or signed compensation waiver;
      4. Type of appointment (Temporary or Intermittent Expert or Consultant appointment);
      5. If temporary, work schedule (full-time, part-time, seasonal, or intermittent);
      6. Proposed length of appointment;
      7. Description of duties to be performed;
      8. Justification for appointing an expert of consultant and explanation how the individual meets the definition of an “expert” or “consultant;” and
      9. Certification by the expert or consultant’s supervisor or manager that:
        1. The appointment will not be used to appoint the individual to a position requiring Presidential appointment, or to a Senior Executive Service position;
        2. The individual is not/will not perform managerial or supervisory work;
        3. The individual is not being appointed to do work being performed by the OpDiv/StaffDiv’s regular employees;
        4. The appointment will not be used to fill in during staff shortages; and
        5. The appointment is not being made in anticipation of giving that person a career appointment (5 CFR §304.103(b)).
    2. To justify a reappointment, OpDivs/StaffDivs should record: 
      1. Explanation of the continuing need for the appointment and the services of the individual;
      2. Whether the duties are the same or demonstrably different from the current or previous expert/consultant appointment;
      3. Which reappointment option under 5 CFR §304.103(c) the OpDiv/StaffDiv has elected and the reasons for selecting that option; and
      4. The number of days or hours worked in a service year (defined under Definitions), or cumulative earnings from expert/consultant employment.
    3. Records associated with personnel actions, including all documentation sufficient for third party reconstruction purposes, must be retained for a total of three (3) full years after completion of the expert or consultant appointment. Records involved in litigation and grievance processes or subject to a litigation hold may be destroyed only after official notification is received from OPM, the Department of Justice, courts, the Office of the General Counsel, etc. that the matter has been fully litigated, or resolved, and closed.
  2. Annual Reporting.  OpDiv/StaffDiv HR Centers are required to report at the beginning of each calendar year the following information to ASA/OHR at employmentpolicy@hhs.gov for each paid expert and consultant appointed in accordance with the provisions of 5 U.S.C. §3109 and on board during the preceding calendar year (5 U.S.C. §3109 and 5 CFR §304.107):
    1. Employee Name;
    2. Expert or Consultant Appointment;
    3. Temporary or Intermittent employment;
    4. Total pay (excluding travel) for the preceding calendar year; and
    5. Total days worked for the preceding calendar year.

    ASA/OHR will email an annual reminder about this reporting requirement.

  3. Accountability. ASA/OHR may conduct periodic accountability reviews to analyze compliance with this Instruction, HHS and OPM policy and guidance and all applicable federal laws and regulations.

Endnotes

1 Maximum EX-IV pay level.  See Section 304-1-60, Compensation.

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