January 15, 2021
HHS Issues Final Rule to Increase Professional Development Opportunities for Career Civil Servants, Harmonize HR Practices
Today, the Department of Health and Human Services (HHS) released a rule* complimenting an action Congress took in regards to the National Institutes of Health (NIH) in the 21st Century Cures Act, by enacting five year terms for certain policy level Directors or their equivalents across all operating divisions. Examples of included positions are HRSA Office Directors, CDC Center Directors, and FDA Center Directors. This action furthers the Department’s commitment to good governance, thoughtful and serious management, diversity, public accountability, and workforce development. It also allows harmonization of human resource practices for HHS leaders in similar positions.
“Most Americans have performance reviews every year, Congress faces election every two years, and presidents every four; requesting reviews of agency leaders twice a decade is common sense management, reinforces our commitment to diversity and workforce development, and builds on recent congressionally mandated term limits at NIH,” said HHS Chief of Staff Brian Harrison.
As is the case with the Senate, terms will expire on staggered dates beginning in December 2021. When a term expires, the Center Director can be re-appointed to the same position and if not, the employee must be appointed somewhere else within the agency. This is the same process Congress applied to the NIH.
In order to fulfill its public-oriented mission, the Department needs to attract and retain highly capable officials committed to public service. This final rule will increase and accelerate opportunities for career officials to rise within the ranks of their agencies, and will allow the Department and the American people to benefit from a more expansive diversity of backgrounds and experiences of senior HHS leaders. Just as Congress did decades ago with the Senior Executive Service (SES) corps, this final rule will also help HHS better attract the leaders of tomorrow - while still retaining existing talent.
Why is HHS taking this action?
The Department was inspired by the action that Congress took at NIH in the 21st Century Cures Act and believes in harmonizing the practices at the various operating divisions across HHS. This action also will maximize opportunities for many career officials who otherwise would not have the same opportunity for career advancement and professional development.
Does this rule single out a specific division?
This policy is applied uniformly among all operating divisions. NIH already has such a policy in place for its 27 institute and center directors, and HHS is merely applying that same policy across the other divisions. We want all divisions to be able to experience the benefits of a diversified workforce. This will benefit operating divisions and enhance their abilities to execute on their public health missions.
Congress did not impose these limits on all of the HHS operating divisions, so why do it?
All HHS operating divisions ought to be able to benefit from the same workforce development practice that Congress has put in place at NIH.
Does this impact NIH?
NIH already enjoys the benefit of 5 year terms.
Does this take control away from division heads?
No, this changes nothing about who makes personnel decisions. Division heads will have the opportunity to keep the incumbent in roles they have the authority to fill.
Where did the idea for this rule originate?
This is the latest in a series of many good governance actions that HHS leadership has been committed to enacting to enhance the Department’s ability to serve the American public.
Why is HHS making this change now at the end of the Administration?
The Department has constantly been doing self-assessments and looking for areas to improve its management practices. The next Administration will be able to benefit from this rule.
Could enactment of this policy violate civil service laws and/or give Department leadership undue influence over agency leadership and activities?
No. This rule will not result in any person being fired or seeing a reduction in salary. While leadership always has the authority to transfer employees, HHS believes that requiring an evaluation every 5 years, as congress did with NIH, will increase diversity and workforce development which will in turn enhance the strengths of each agency.
How might this affect the Department’s COVID-19 response?
This initiative is not a part of the Department’s response to COVID-19. However, by improving the diversity and quality of our workforce over time, the Department will be better suited for future emergencies. Additionally, the COVID response has highlighted the need for better collaboration and harmonization across HHS divisions. This rule would ensure personnel practices will be treated uniformly across HHS.
Did this type of policy have positive effects at NIH?
The Department believes, as did Congress, that it will. The first NIH terms expire in December 2021.
Will employees be fired at the end of the 5 years?
No employee will be fired as a result of this rule. The rule explicitly states that if not re-appointed to the same position, the employee must be appointed somewhere else within the agency.
How many positions will this impact?
This action will impact 66 positions at the Department.
Will this cause a loss of institutional experience?
Institutional experience and knowledge will be enhanced as a result of this rule. Much like SES rotations, the movement of center directors will allow the entire agency to benefit from their knowledge and experience.
Why go through the exercise if the agencies can just reappoint the same people?
Term limits increase the opportunity for career advancement for many well-deserving civil servants, and as SES practices have recognized for decades, the workforce benefits from diversity and movement among its top leaders.
How did HHS decide which positions were included in the first, second, and third groupings?
HHS assigned positions to groupings based on seniority. Those serving longest have their terms come up first.
When do terms end?
The first terms end December 2021.
What is the Department’s authority to do this?
5 U.S.C. 301. The agency has the authority to make internal management decisions.
Why does this rule not apply to political appointees?
Unlike career civil servants, political appointees are already routinely evaluated and may be fired or reassigned at will.
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