Instruction 590-1: Title 38 Physician and Dentist Pay (PDP)

Material Transmitted:

Department of Health and Human Services (HHS) Instruction 590-1, Title 38 Physician, Dentist, and Podiatrist Pay, dated December 17, 2021.

Material Superseded:

HHS Instruction 590-1:  Title 38 Physician and Dentist Pay (PDP), dated January 1, 2016

Background:

This Instruction has been amended to reflect a change in the name of this program from Physician and Dentist Pay to Physician, Dentist, and Podiatrist Pay.  The acronym remains PDP.

Amended to reflect that Human Resource Directors have delegated authority to approve all Title 38 market pay proposals up to $350,000.  Approval for annual pay in excess of $350,000 is retained by the Assistant Secretary of Administration.

Addition of language that podiatrists are eligible to receive market pay.

Addition of medical specialty Podiatry (General) and Podiatry (Surgery-forefoot, refoot/ankle, advanced refoot/ankle), to pay table 1.  (Podiatrists became eligible for Market Pay effective, May 8, 2019.  The previous authorization before this effective date is revoked).

Addition of language that physicians receiving PDP are eligible to receive hazardous duty pay.  Hazardous duty pay is computed as a percentage of the employee’s GS base pay plus market pay.

Addition of language that physicians must have their pay reviewed at least once every 24 months.

Clarification that Title 38 physicians who receive market pay may be paid certain overseas allowances – foreign area COLA under 5 U.S.C. § 5924; post differential under 5 U.S.C. § 5925; and danger pay allowance under 5 U.S.C. § 5928).  Overseas allowances are computed as a percentage of the employee’s GS base pay plus market pay.

This issuance is effective immediately and must be carried out in accordance with applicable laws, regulations, bargaining agreements, and Departmental policy.

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

/s/

Tia N. Butler
Deputy Assistant Secretary for Human Resources
and Chief Human Capital Officer, Acting

590-1-00 Sections

590-1-10 Purpose
590-1-20 Coverage and Exclusions
590-1-30 References
590-1-40 Definitions
590-1-50 Responsibilities
590-1-60 Policy
590-1-70 Documentation and Accountability
Exhibit A Delegation Authorities
Exhibit B OPDIV Physician, Dentist, and Podiatrist Tier Descriptions
Exhibit C Annual Pay Ranges for Physicians, Dentists, and Podiatrists

590-1-10: Purpose

This Instruction implements the Department of Health and Human Services regulations and procedures for Title 38 Physician, Dentist and Podiatrist Pay (PDP).

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

590-1-20: Coverage and Exclusions

1. Coverage:
   
   The provisions of this Instruction apply to civilian physicians (0602), podiatrists (0668), and dentists (0680) (full-time, part-time, and intermittent) at GS-15 and below who:
   1. Provide direct patient-care services, or services incident to direct patient-care services; and
   2. Have been designated for coverage by appropriate legal authority.

   As used in this document, the term “physician(s)” is used interchangeably to refer to a physician, podiatrist, and/or dentist.

2. Exclusions: This Instruction does not apply to individuals:
   1. Currently serving in the Public Health Service (PHS) Commissioned Corps;
   2. Serving in an internship or residency training program;
   3. Senior Executive Service (SES), Executive Schedule (EX), Senior Level/Scientific (SL/ST), Senior Biomedical Research and Biomedical Product Assessment Service (SBRBPAS), executive level, or other senior-level systems;
   4. Receiving Physicians Comparability Allowance (PCA) under 5 U.S.C. § 5948; or
   5. Employed or paid under a Title 42 authority.
3. 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.

590-1-30: References

1. Public Law (P.L.) 93-638, § 105 (Indian Self-Determination and Education Assistance Act)
2. P.L. 99-221, § 3(a) (Cherokee Leasing Act)
3. P.L. 116-12, (Clarification of Grade and Pay of Podiatrists of Department of Veterans Affairs)
4. 38 U.S.C chapter 74 (Veterans’ Health Administration - Personnel)
5. 5 U.S.C. § 5371 (Health Care Positions)
6. 5 U.S.C. § 5545(d) (Night, standby, irregular, and hazardous duty differential)
7. U.S. Office of Personnel Management Title 38 Delegation Agreement with HHS, effective March 6, 2019-June 30, 2022
8. May 24, 2019 ASA Memo, Modification of HHS Instruction 590-1, Title 38, Physician and Dentist Pay, dated January 1, 2016
9. May 15, 2019 Acting DAS HR Memo, Revised Title 38 Delegation Agreement, clarifying PDP for podiatrists was not effective April 8, 2019.
10. OPM FAQs on Hazardous Duty Pay, see discussion under “Who Can Receive Hazardous Duty Pay,” and “Can Title 38 Employees Receive Hazardous Duty Pay”

590-1-40: Definitions

1. Aggregate Pay. The sum of all payments made to a physician in a calendar year, exclusive of lump sum annual leave, reimbursement of travel, back pay, and severance pay, which may not exceed the amount of annual compensation of the President of the United States specified in section 102 of title 3 of the United States Code (currently set at $400,000).
2. Annual Pay. The sum of the General Schedule (GS) base pay rate and market pay.  Annual pay is basic pay for purposes of computing civil service retirement benefits, lump sum annual leave payments, life insurance, thrift savings plan, work injury compensation claims, severance pay, recruitment, relocation and retention incentives, continuation of pay, and advances in pay.
3. Basic Pay. The rate fixed by applicable law or regulation. Basic pay does not include other types of pay such as: bonuses, allowances, overtime, holiday, and military pay or supplemental payments from the Office of Workers' Compensation Programs (OWCP).
4. Base Pay.  Rate of pay before any applicable locality payment or special rate supplement is added.
5. Compensation Panel. A group of physicians responsible for the evaluation of physicians and for making recommendations to the approving official for annual pay.
6. Management Official. A person who has supervisory authority over staff or program management responsibility.
7. Market Pay. A component of annual pay intended to reflect the recruitment and retention needs for the specialty or assignment of a particular HHS physician.
8. Tier. A level within the annual pay range for an assignment or specialty.  Refer to Exhibit B of this Instruction for tier levels.
9. Total Compensation. The sum of all payments made to a physician including base pay, market pay, recruitment, relocation, and retention incentives, overseas allowances (i.e., foreign area COLA under 5 U.S.C. § 5924; post differential under 5 U.S.C. § 5925; and danger pay allowance under 5 U.S.C. § 5928), performance awards, or other cash awards.

590-1-50: Responsibilities

1. HHS Assistant Secretary for Administration, Office of Human Resources (ASA/OHR):
   1. Develops Department-wide policy and guidance regarding PDP in accordance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
   2. Obtains the concurrence of the Interagency Committee for Health Care Occupations on the HHS PDP Policy when substantial changes are made.
   3. Prepares the annual report of use of PDP as required by OPM.
   4. Maintains an internal review program to monitor use of these provisions.  Provides OPM with program information and access to records upon request.
   5. Periodically reviews Operating Division and Staff Division (OpDiv/StaffDiv) procedures to assure conformance with HHS and OPM policy and guidance, and all applicable federal laws and regulations.
2. OpDiv/StaffDivs:
   1. Comply with this Instruction, any HHS and OPM policy and guidance, and all applicable federal laws and regulations.
   2. Ensure that merit system principles and the requirements of the Title 38 statute, the OPM-HHS delegation agreement, and this Instruction are followed in their use of PDP.
   3. Delegated authority to approve all Title 38 market pay proposals up to $350,000.
3. OpDiv and StaffDiv Human Resources Centers (HR Centers):
   1. Comply with this Instruction, and applicable federal laws and regulations.
   2. Maintain auditable program records for 3rd party review.
4. OpDiv/Ethics Office:
   1. Review requests for approval of outside work activities from physicians for possible conflict of interest with federal work obligations.
5. Approving Officials:
   1. Comply with this Instruction, any HHS and OPM policy and guidance, and all applicable federal laws and regulations.
   2. Review and certify PDP requests comply with the provisions of law, the OPM and HHS delegation agreement, and this Instruction.
   3. Consult when necessary with OpDiv/StaffDiv OHROs and Ethics Office for employees requesting approval of outside work activities.

590-1-60: Policy

1. Discretionary Application.  PDP is available for use to recruit and retain highly qualified physicians.  Payment of PDP is optional in each OpDiv.  (Throughout this Instruction, references to OpDiv Heads imply that authorities may be redelegated).
   1. Within budgetary constraints, HHS policy is to compensate physicians at levels reasonably comparable with those paid to other federal sector physicians in the same local area.
2. Establishment of PDP Amounts.  PDP amounts for physicians will be established on an   individual basis according to GS base pay and market pay.  PDP does not include locality pay under the GS scale.  (See Section Paragraph R of this section, Market Pay, and Exhibit A, which describes approval authorities).
3. Relationship to Basic Pay.  PDP (annual pay) is basic pay for all benefits including retirement.
4. Relationship to Premium Pay under Title 5.  Physicians who receive PDP may not:
   1. Be paid overtime for work in excess of 8 hours per day, 40 hours per week, or 80 hours per pay period;
   2. Earn compensatory time off in lieu of overtime pay or compensatory time off for travel; or
   3. Receive any other form of premium pay under 5 U.S.C. chapter 55, e.g., Sunday, holiday, night pays.
5. Hazardous Duty Pay (HDP).  Physicians at HHS are covered under Chapter 51 (Classification) of Title 5, U.S.C.  As such, physicians receiving PDP are eligible to receive hazardous duty pay.  However, if these employees are later classified under the Title 38 qualification-based grading system, they would not be eligible for HDP.  If approved, HDP is computed based upon the sum of the employee’s GS base pay plus title 38 market pay.
6. Overseas Allowances.  Physicians who receive market pay are also eligible for certain overseas allowances.  They may be paid:  Foreign area COLA under 5 U.S.C. § 5924; post differential under 5 U.S.C. § 5925; and danger pay allowance under 5 U.S.C. § 5928.  Overseas allowance is computed based upon a percentage of the employee’s GS base pay plus market pay.
7. Physicians receiving PDP will be covered by the HHS Performance Management Appraisal Program.
8. Other Discretionary Pay under Title 5.  Physicians who receive PDP may receive other forms of discretionary pay under Title 5, such as awards; and recruitment, relocation, and retention incentives (5 U.S.C. §§ 5753 and 5754).  However, they are not eligible to receive a Physicians’ Comparability Allowance (PCA) under 5 U.S.C. § 5948.  The sum of base pay and any discretionary pay that is paid to a physician under Title 5 authority, (e.g., cash awards, performance awards, recruitment, retention, and relocation incentives) is limited on an annual basis to the rate of pay for Executive Level I (EX-I).
9. Aggregate Compensation Limits.  Total compensation of physicians receiving PDP under Title 38 authority including, basic pay, market pay, and other supplemental pay under Title 5 cannot exceed the amount of annual pay received by the President of the United States as specified in 3 U.S.C. § 102.  In the event that the amount of compensation does exceed this amount, there will be no deferral of compensation and any excess will be forfeited, unless, specifically permitted by law.
10. Effective Dates.  PDP will usually be effective at the beginning of the pay period immediately following approval by the approving official or on a later date specified on HHS Form 691, “Request for Title 38 Physician, Dentist, and Podiatrist Pay”, located on HHS Intranet Form Page.  PDP may not be approved retroactively; however, depending on the circumstances, an administrative error may be corrected retroactively. (PDP will be paid on a biweekly basis).
11. Outside Work.  Because of the work obligation associated with PDP, physicians who wish to perform outside work must submit a prior written request under established Department procedures.  Any activity interfering or conflicting with the employee’s federal work obligation will be disapproved.
12. Part-time Service.  Part-time physicians who have a tour of duty of at least 20 hours per pay period may be offered PDP.  Additionally, physicians who work an intermittent schedule are eligible for PDP.
13. Relationship to Leave under Title 5.  Physicians who receive PDP continue to be covered by the leave provisions of 5 U.S.C. chapter 63.
14. Credit Hours.  Physicians who receive PDP are eligible to accrue credit hours in accordance with 5 U.S.C. chapter 61.
15. Establishment or Changes to Pay.  Management officials proposing PDP must complete HHS Form 691 and provide:
    1. A copy of the candidate’s/employee’s qualifications statement or curriculum vitae (CV),
    2. The position description,
    3. Written market pay justification,
    4. Copy of medical license,
    5. Copy of Board certification (if applicable), and
    6. External Compensation Surveys.
16. Information listed in paragraph O above should be forwarded by the proposing official to the compensation panel for review and recommendation to the approving official for a decision.  The decision of the approving official is final.
17. Once approved, cases will be forwarded with supporting documentation to the servicing HR Center for:
    1. Processing of a Notification of Personnel Action (SF-50); and
    2. Maintenance of records in the employee’s Official Personnel Folder (OPF).  NOTE:  Maintain supporting documentation on the left side of the OPF.
18. Market Pay
    1. Each physician covered by this part is eligible for market pay.  Market pay is intended to reflect the recruitment and retention needs for the specialty or assignment of a particular physician at an HHS facility.  Physicians who receive Market Pay under 38 U.S.C. § 7431 (c) are no longer entitled to receive any locality payments under 5 U.S.C. § 5304 or special rate supplements under 5 U.S.C. § 5305 or 38 U.S.C. § 7455.  Physicians must have their pay reviewed at least once every 24 months.
    2. At least once every two years, the Veterans Affairs (VA) Secretary prescribes nationwide minimum and maximum amounts of annual pay (base pay plus market pay) that will be paid under this paragraph.  These amounts are published in the Federal Register for not less than 60 days prior to the effective date.  The VA Secretary may prescribe different ranges for different specialties or assignments.  In determining pay ranges, at least two or more national surveys of pay for physicians are consulted.  National surveys consulted include data that describe overall physician income by specialization or assignment and benefits in broad geographic scope.
    3. Pay ranges are located at Exhibit C of this Instruction.  If HHS has a physician, podiatrist, or dentist specialty not covered by one of the pay ranges established by the VA, HHS may (1) cover that specialty under an existing VA pay range or (2) establish a new pay range, consistent with the requirements for establishing pay ranges under 38 U.S.C. § 7431.  HHS will notify OPM and the Interagency Committee for Healthcare Occupations if it adds a new specialty to an existing VA pay range or establishes a new pay range and issue a Federal Register Notice as required by 38 U.S.C. § 7431 (e)(1)(c).
       1. When the VA increases the nationwide minimum and/or maximum amounts of annual pay under this paragraph, physicians are not automatically entitled to a corresponding increase in their individual annual pay rates. Only physicians whose existing rate of annual pay falls below the newly prescribed nationwide minimum for their designated pay range will automatically receive an increase in market pay to make their annual pay rate equivalent to the new nationwide minimum. Compensation Panels review the market pay rates for individual physicians on a periodic basis.
       2. In the event that the nationwide minimum and maximum amounts of annual pay are reduced under this paragraph, physicians already on HHS rolls will not experience a reduction in market pay.
    4. There may be up to four tiers of annual pay for each specialty or assignment for which a separate range of pay has been approved.  Each tier reflects different professional responsibilities, professional achievements, or administrative duties.  See Exhibit B of this Instruction for the different tier levels.
    5. The amount of market pay and appropriate tier for a particular physician is recommended to the approving official.
    6. The determination of the amount of market pay of a particular physician shall take into consideration:
       1. The level of experience of the physician in the specialty or assignment;
       2. The need for the specialty or assignment of the physician at the facility;
       3. The health care labor market for the specialty or assignment of the physician, which may cover any geographic area the OpDiv/StaffDiv considers appropriate for the specialty or assignment;
       4. The board certifications, if any, of the physician;
       5. The accomplishments of the physician in the specialty or assignment; and
       6. Consideration of unique circumstances, qualifications or credentials, if any, and the comparison of these circumstances to the equivalent compensation level of non-HHS physicians in the local health care labor market.
    7. Each OpDiv will establish one Compensation Panel that will be responsible for its PDP Program oversight and guidance.  These panels will ensure that there is consistency and appropriateness of pay determinations within the OpDiv and periodically review pay under the PDP Program.  All Compensation Panel recommendations are taken into consideration by the appropriate approving official.  The approving official determines the amount of market pay to be paid a physician after consideration of the range and tier recommended by the panel.  The approving official’s decision is final.
19. Exceptions to the Maximum of the Annual Pay Range
    1. General
       1. Except as provided in paragraphs S.1.b through S.1.d, and S.2, below, the annual pay for a physician may not exceed the maximum amount in the nationwide pay range prescribed by the Secretary of the VA for a specialty or assignment.
       2. It is expected that the maximum amount in the nationwide pay range will meet most pay and staffing needs.  However, the OpDiv Head may grant an exception to the maximum on an individual, specialty or assignment, and/or facility-specific basis if such action is necessary to recruit or retain well-qualified physicians.
       3. It is expected that the maximum amount in the nationwide pay range will meet most pay and staffing needs.  However, the OpDiv Head may grant an exception to the maximum on an individual, specialty or assignment, and/or facility-specific basis if such action is necessary to recruit or retain well-qualified physicians.
       4. Exceptions to the maximum amount of a nationwide pay range are not required for physicians who will exceed the pay range due to a GS base increase under 5.U.S.C. 5303, promotion increase under 5334(b), within-grade increase under 5335, or quality-step increase under 5 U.S.C. 5336.  Physicians are not eligible for within-grade increases or quality step increases if their base pay is at the maximum of the GS rate range.
    2. Criteria for Approval.  Each organization submitting a request for an exception to the maximum in the pay range for an individual, specialty or assignment, and/or facility-specific basis must demonstrate that a higher maximum is necessary to maintain adequate staffing.  Factors to consider include:
       1. Exceptions to the Maximum Annual Pay Ranges
          1. Higher Maximum Rates.  There is substantial evidence or anecdotal information that the maximum rates in the community are higher than the Department’s maximum rate for the specialty or assignment.  However, higher rates in the community may not be the sole basis for making a request for an exception to the maximum of the market pay range;
          2. Other Criteria.  The organization may submit any evidence of staffing problems which seriously hamper or have the potential to seriously hamper its ability to recruit and retain physicians in the specialty or assignment.
       2. Individual Exception to the Maximum of the Annual Pay Range
          1. The individual should have outstanding qualifications in a medical or dental specialty or possess a unique combination of education and experience that meets a special need of the organization that may be project specific or critical to the HHS mission.
          2. A discussion of what factors distinguish the individual when compared with other physicians with like length of service, specialty, or assignment; or a discussion of the rare combination of education and experience which the individual has and how it meets a special need of the organization or the mission of HHS.
    3. Requesting Exceptions.  Requests for exceptions to the maximum of the nationwide pay range will be sent to the OpDiv head with a recommendation from the Compensation Panel.  Requests shall include the following:
       1. The individual or specialty or assignment for which the exception is requested;
       2. The amount of maximum pay requested;
       3. The reasons for the request, including documentation specific to the criteria in paragraph S.2 above; and
       4. Any other pertinent information.

590-1-70: Documentation and Accountability

1. Records, including all documentation sufficient for third party reconstruction purposes, must be retained according to the according to the record disposition schedule.  Generally, records created in a given year must be retained for a total of three (3) full years.
2. Records involved in litigation and grievance processes may be destroyed only after official notification is received from OPM, Department of Justice, courts, or the Office of the General Counsel, etc. that the matter has been fully litigated, or resolved and closed.
3. ASA/OHR may conduct periodic accountability reviews to analyze compliance with this Instruction, HHS and OPM policy and guidance, and applicable federal laws and regulations.

Exhibit A:  Delegation Authorities

Exhibit B:  OPDIV Physician, Dentist, and Podiatrist Tier Descriptions

Exhibit B (con’t):  OPDIV Physician, Dentist, and Podiatrist Tier Descriptions

Exhibit C: Annual Pay Ranges for Physicians, Dentists, and Podiatrist

Authorized by Title 38, U.S.C., §7431
Effective: January 2, 2022

Pay Table 1:  Pay Ranges

Covered clinical specialties and assignment

Endocrinology; Endodontics; General Practice—Dentistry; Geriatrics; Infectious Diseases; Internal Medicine/Primary Care/Family Practice; Palliative Care; Periodontics; Podiatry (general); Podiatry (surgery-forefoot, rearfoot/ankle, advanced rearfoot/ankle); Preventive Medicine; Prosthodontics; Rheumatology; and all other specialties/assignments not requiring specific specialty training.

Pay Table 2: Pay Ranges

Covered clinical specialties

Allergy and Immunology; Hospitalist; Nephrology; Neurology; Pathology; Physical Medicine & Rehabilitation/Spinal Cord Injury; and Psychiatry.

Pay Table 3: Pay Ranges

Covered clinical specialties

Pain management (Interventional and Non-Operating Room Anesthesiology); Cardiology (noninvasive); Emergency Medicine; Gynecology; Hematology-Oncology; Nuclear Medicine; Ophthalmology; Oral Surgery; and Pulmonary.

Exhibit C (con’t):  Annual Pay Ranges for Physicians, Dentists, and Podiatrists

Authorized by Title 38, U.S.C., §7431
Effective: January 2, 2022

Pay Table 4: Pay Ranges

Covered clinical specialties

Anesthesiology; Cardiology (invasive/non-interventional); Cardio-Thoracic Surgery; Critical Care; Dermatology; Dermatology (MOHS); Gastroenterology; General Surgery; Interventional Cardiology; Interventional Radiology; Neurosurgery; Orthopedic Surgery; Otolaryngology; Plastic Surgery; Radiology (diagnostic); Radiation Oncology; Urology; and Vascular Surgery.

Pay Table 5:  Pay Ranges

Covered assignments

Chief of Staff and Deputy Chief of Staff.  Depending upon the level of responsibilities, an assignment as chief of staff may be compensated at all three tiers as warranted.  All assignments with a level of responsibilities amounting to deputy chief of staff, however, are compensated at the tier 3 pay range only.

Pay Table 6:  Pay Ranges

Covered executive assignments

Executive Director; Principal Deputy; Deputy and Assistant Under Secretary for Health; Chief Officer; Chief Consultant; Network Director; Medical Center Director; Chief Medical Officer; National Program Manager; and other Central Office physician, podiatrist or dentist.