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

Issue Date: June 5, 2020

Material Transmitted:

HHS Instruction 304-1, Appointment of Experts and Consultants, dated June 5, 2020.

Material Superseded:

HHS Instruction 304-1, Appointment of Experts and Consultants, dated April 25, 2008. HHS Form 410, Experts and Consultants, dated December 1977.

Background:

This Instruction has been revised to clarify the requirements of appointments made under 5
U.S.C. §3109 consistent with law, regulations, and the Office of Personnel Management (OPM) guidance covering these appointments.

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

/s/

J. Blair Duncan
Deputy Assistant Secretary for Human Resources
Chief Human Capital Officer

Subject: Appointment of Experts and Consultants

304-1-00 Purpose
304-1-10 References
304-1-20 Coverage and Exclusions
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, Annual Reporting, and Accountability

304-1-00 Purpose

This Instruction sets forth 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 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.
  2. Fiscal Year (FY) 2020 authority for IHS to use 5 U.S.C. 3109: Department of Interior, Environment, and Related Agencies Appropriations Act, 2020, Public Law 116-94 div. D (Dec. 20, 2019).

    Administrative Provisions – Indian Health Service. Appropriations provided in this Act  to the Indian Health Service shall be available for services as authorized by 5 U.S.C. 3109 at rates not to exceed the per diem rate equivalent to the maximum rate payable for senior-level positions under 5 U.S.C. §5376.
  3. 42 U.S.C. §290aa(h), Substance Abuse and Mental Health Services Administration, Services of Experts
  4. 42 U.S.C. §299c-5(f), Agency for Healthcare Research and Quality, Certain Administrative Authorities, Experts
  5. 5 U.S.C. §3109 (Employment of Experts and Consultants; temporary or intermittent)
  6. 5 U.S.C. §5533(d)(1) (Dual Pay for More than One Position; Exceptions)
  7. 5 CFR Part 304 (Expert and Consultant Appointments)
  8. OPM Fact Sheet: Expert and Consultant Pay

304-1-20 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 acquire services via 42 U.S.C. §299c-5(f) for not more than 50 experts or consultants who have scientific or professional qualifications in the Agency for Healthcare Research and Quality (AHRQ) in accordance with 5 U.S.C. §3109 but without regard to the time limitations under 5 U.S.C. §3109. All other provisions of 5 U.S.C. §3109, 5 CFR Part 304, and this Instruction apply.
    3. The Assistant Secretary of the Substance Abuse and Mental Health Services Administration (SAMHSA) may acquire services via 42 U.S.C. §290aa(h) for not more than 20 experts or consultants who have professional qualifications in accordance with 5 U.S.C. §3109 but without regard to the time limitations under 5 U.S.C. §3109. All other provisions of 5 U.S.C. §3109, 5 CFR Part 304, and this Instruction apply.
  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., 42 U.S.C. §209(f); 5 CFR §213.3102(l)), etc.); or
    3. Positions or work listed under 5 CFR §304.103(b).
    4. The Food and Drug Administration (FDA) is not authorized to use 5 U.S.C. §3109 through its FY2020 appropriations, i.e., the Department of Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2020. FDA must identify authorization via future appropriations or other statute before using 5 U.S.C. §3109, in accordance with 5 U.S.C. §3109(b).

304-1-30 Definitions

  1. Agency. HHS (5 U.S.C. §105 and 5 CFR §304.102(a)).
  2. 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(c)).
  3. 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)).
  4. Intermittent employment. Employment without a regularly scheduled tour of duty. (5 CFR §304.102(f)).
  5. 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)).
  6. 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)).
  7. 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 (HHS OHR):
    1. Develops 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.
  2. Operating Divisions/Staff Divisions (OpDivs/StaffDivs):
    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 human resources staff receives 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 a temporary basis (i.e., up to one (1) year); or on a strictly intermittent basis without time limit or for any period determined by the 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:
    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 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 annual rate payable under the annualized basic pay limitations under 5 U.S.C. §5376, 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 applicable to federal employees, including laws related to compensation, leave, overtime, reduction of basic pay, 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 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. §5376.1
  3. The Department of Interior, Environment, and Related Agencies Appropriations Act, 2020 (Public Law 116-94 div. D (Dec. 20, 2019)) authorizes IHS for FY2020 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. §5376.2 (Note: Following  the close of FY2020, IHS must identify an appropriation or other statute prior to using 5 U.S.C. §3109, in accordance with 5 U.S.C. §3109(b).)
  4. 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 under References in this Instruction; 5 CFR §304.104 and 105).
  5. 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)).
  6. 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)).
  7. 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.
  8. OpDivs/StaffDivs have the authority to adjust the pay of experts and consultant 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 (5 CFR §304.106(a)).
  9. Experts and consultants are not entitled to receive locality pay adjustments since they are not General Schedule employees (5 CFR §304.106(a) and OPM Fact Sheet: Expert and Consultant Pay). Such automatic pay adjustments are at the OpDiv/StaffDiv’s discretion and must be specifically authorized in the official appointing document (5 CFR §304.106).
  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 ineligible for life insurance and health benefits. However, 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 (5 CFR §§ 831.201; 870.302; 890.102).
  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.

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 Authority, Reg. 304.103).
  2. Authority code ‘ZLM’ is also cited as the applicable appropriations or statute that authorizes the appointment (see References, A-D.), in accordance with the GPPA.
  3. The temporary or intermittent 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 in accordance with the OPM’s Guide to Data Standards.
  5. 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 the servicing ethics official or legal counsel.
  6. Tenure is assigned following guidance in OPM’s Guide to Data Standards. Generally, time- limited or temporary appointments are Tenure Code 3.

304-1-90 Documentation, Annual Reporting, and Accountability

  1. Documentation.
    1. To justify an appointment under 5 U.S.C. 3109, OpDivs/StaffDivs should record:
      1. Name of individual;
      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, 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 according to the applicable record disposition schedule. Generally, all records created in a given year must be retained for a total of three (3) full years. Records involved in litigation and grievance processes 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. In accordance with 5 U.S.C. §3109 and 5 CFR §304.107, OpDiv/StaffDiv Human Resources Offices are required to report annually the following information by January 31 to HHS OHR at employmentpolicy@hhs.gov for each paid individual hired under 5 U.S.C. §3109 and on board during the preceding calendar year:
    1. Employee Name;
    2. Expert or Consultant Appointment;
    3. Temporary or Intermittent;
    4. Total pay (excluding travel) for the preceding calendar year; and\
    5. Total Days Worked for the preceding calendar year.
  3. Accountability. HHS OHR will conduct periodic accountability reviews to analyze compliance with this Instruction, HHS and OPM policy and guidance and all applicable federal laws and regulations.
  • 1. $181,500 maximum payable rate due to HHS not having a certified ST/SL performance appraisal system, as of the date of this Instruction.
  • 2. $181,500 maximum payable rate for FY2020.
Content created by Office of Human Resources (OHR)
Content last reviewed on June 15, 2020