Part 7 - Human Resources Administration And Management
Chapter 1 - Excepted Service Examining Plan
- Purpose. This chapter is the Indian Health Service (IHS) Excepted Service Examining Plan for employment under Schedule A authority Title 5, Code of Federal Regulations (CFR) 213.3116(b)(8). This revised and updated plan states excepted service policy and procedures to be followed within the IHS for the employment of persons entitled to Indian preference.
- Title 5, CFR, Chapter 1, Part 213, Excepted Service
- Title 5, CFR, Chapter 1, Part 302, Employment in the Excepted Service
- Title 42, CFR, Chapter 1, Part 136, Section 41, Definitions
- Title 42, CFR, Chapter 1, Part 136, Section 43, Application Procedure for Preference Eligibility
- Department of Health and Human Services (HHS), Personnel Instruction 302-1, Filling Excepted Positions; Streamlining of Rules
- Part 7, Chapter 2, “Merit Promotion Plan,” Indian Health Manual (IHM)
- Part 7, Chapter 3, “Indian Preference,” IHM
- Background. The Wheeler-Howard Act, better known as the “Indian Reorganization Act,” Title 25, United States Code (U.S.C.) 472, was enacted on June 18, 1934, and conferred upon persons of Indian descent preference in employment in the Bureau of Indian Affairs (BIA). Public Law (P.L.) 83-568, dated August 5, 1954, transferred to the Surgeon General of the Public Health Service (PHS) “...all functions, responsibilities, authorities, and duties of the Department of the Interior (DOI)” relating to Indian health. To assist the PHS in carrying out the provisions of law regarding employment preference for persons of Indian descent, the former “Civil Service Commission,” now the United States Office of Personnel Management (USOPM), excepted from the competitive service, through Schedule A authority 213.3116(b)(8), positions directly and primarily related to providing services to Indians when filled by the appointment of Indians.
- Coverage. The IHS Excepted Service Examining Plan covers the process for considering Indian applicants for permanent, temporary, or time-limited appointments under Schedule A authority 213.3116(b)(8). Indian applicants who ordinarily would be considered under the provisions of Part 7, Chapter 2, “Merit Promotion Plan,” IHM, e.g., current permanent HHS employees or employees eligible for transfer or reinstatement who are seeking employment with greater promotion potential, may also apply. Eligible individuals may be appointed (or converted to a new appointment) under Schedule A authority 213.3116(b)(8) without regard to time-in-grade requirements as set forth in 5 CFR Part 300 and HHS Personnel Instruction 302-1. The provisions of the IHS Excepted Service Examining Plan are discussed further in section 7-1.2 below.
- Exclusions. In accordance with 5 CFR Part 302, the following individuals may be appointed to a permanent, temporary, or time-limited position in the excepted service without regard to the provisions of this plan:
- A former Executive Branch employee who served under a non-temporary appointment, who is entitled to Indian preference and Veterans preference, and who meets the qualification standards may be appointed to a permanent, temporary, or time-limited position in the excepted service without regard to the announcement and/or ranking requirements of this plan.
- A former permanent IHS Indian preference candidate who served under Schedule A authority 213.3116(b)(8) may be appointed to a position at the same or lower grade in the same commuting area if there are no candidates on the priority re-employment list.
- A former temporary or time-limited IHS Indian preference candidate who served under Schedule A authority 213.3116(b)(8) may be appointed to a temporary position limited to one year or less at the same or lower grade in the same commuting area if there are no candidates on the priority re-employment list. [Note: This provision would also permit the conversion of a current temporary employee to another temporary appointment.]
- A temporary or time-limited employee may be converted to a new temporary or time-limited appointment at the same grade or at a higher grade level (if the initial announcement included the higher grade level and the employee was eligible for the higher grade level). NOTE: Nothing in (3) or (4) above authorizes exceeding the time limits or the extension or renewal of temporary appointments contained in the United States Office of Personnel Management (OPM) regulations.
In May 2005, the IHS Director consolidated the IHS human resource (HR) functions/offices into the following five regional HR offices: Navajo, Northern Plains, Southeast, Southwest, and Western. The DHR, Office of Management Services, provides oversight and direction to the five offices. (This structure was published in the October 17, 2005, Federal Register.)
- Director, Division of Human Resources. The Director, DHR, makes policy decisions and provides technical assistance to the Regional Human Resources Officers (RHRO) and performs the responsibilities of the RHRO as they pertain to IHS Headquarters (HQ) positions.
- Regional Human Resources Officer. The RHRO:
- implements this plan;
- advises managers concerning the plan;
- informs applicants, upon request, of plan provisions and procedures; and
- provides placement priorities for P.L. 94-437 scholarship recipient(s) and makes appointments without regard to any competitive personnel system, agency personnel limitations, or Indian preference policy. (See Part 5, Chapter 20, IHM, or any succeeding document).
7-1.2 METHODS OF LOCATING APPLICANTS
- Separate Announcements. The issuing DHR Director or the RHRO may issue application acceptance announcements under the provisions of this excepted examining plan and under Part 7, Chapter 2, Section 5, “Merit Promotion Plan,” IHM. If issued under both plans, the announcement must clearly identify any requirement differences. Also, applicants must indicate on their application or résumé if it is submitted under this plan, the MPP, or both plans. (See 5 CFR 302.102 for the method of filling positions and the incumbent’s employment status in the excepted service.) The announcement should state that employees and applicants are considered under merit promotion only, unless they provide an appropriate Standard Form (SF)-50, “Notification of Personnel Action,” and indicate under which plan they are applying. The DHR Director or the RHRO ensures that announcements are posted on the IHS vacancy web site and on appropriate automated staffing systems, such as QuickHire and HHS Careers.
- Vacancy or Open Continuous Announcements. Announcements may be issued under this plan on an individual vacancy or open-continuous basis. Vacancy announcements for recurring positions are continuously posted during the open period and state that all interested and qualified candidates may apply for consideration until the closing date of the announcement.
- Open-Until-Filled Announcements. Announcements may be issued on an “open until filled” basis. The DHR Director or the RHRO establishes objective criteria for determining closing dates (e.g., after receiving applications from a specific number of candidates and first and subsequent cut-off dates for the announcement). The DHR Director or the RHRO must also document the date on which the announcement is closed.
- Priority Re-employment List. Candidates on the priority re-employment list who are rated eligible for the position being filled must be considered before any other applicant.
- The priority re-employment list includes furloughed employees, former employees separated by Reduction-in-Force (RIF), and/or former employees who took more than one year to recover from an on-the-job injury for which they received workers’ compensation. Employees may remain on the re-employment list in the commuting area for 2 years. However, only employees recovering from a work-related injury remain longer on the list for consideration in other areas if it is determined that the vacancies they applied for will not likely be available in their commuting area. For example, if a service unit has closed and there are no longer available positions in the commuting area, affected employees must be given consideration in another area.
- Under the provisions of the priority re-employment list, a part-time employee may be considered for a full-time position only if there are no full-time candidates on the priority re-employment list. Similarly a full-time employee may be considered for a part-time position only if there are no part-time candidates on the priority re-employment list.
- Candidates on the priority re-employment list cannot be passed over to select someone on the regular referral list except when it can be clearly demonstrated that the pass-over is necessary to prevent undue interruption in the Agency’s mission. Any employee who is passed over must be notified in writing of the reasons and must be advised of their right to appeal to the Merit Systems Protection Board (MSPB).
- Re-employment priority (RPL) is extended to candidates who were furloughed, former employees separated by RIF, and/or former employees who took more than one year to recover from an on-the-job injury for which they received workers’ compensations.
- Priority consideration is given to individuals (candidates) who did not receive proper consideration due to an administrative error when they applied for a vacancy. This does not guarantee selection, only consideration.
- Bona-fide consideration is given to recipients of scholarships under P.L. 93-437, the Indian Health Care Improvement Act. This consideration is to assist recipients in fulfilling their service obligation. The scholarship recipients who have completed their course of study are referred for consideration before any other candidates are referred.
- Applicants on the re-employment priority list receive the highest level of consideration and must be considered before candidates who have been awarded priority consideration. Priority consideration, awarded to individuals who did not receive consideration for a vacancy to which they applied, does not guarantee their placement in the RPL.
7-1.3 METHODS OF APPLYING
- Application Due Dates. The DHR Director or the RHRO determines when the application and supporting material must be received on the closing date (e.g., 5:00 p.m.).
- Accepting Application. Applications may be accepted by FAX or e-mail, at the discretion of the DHR Director or the RHRO. The decision whether to accept applications by FAX must be consistently applied to all vacancies announced by the DHR Director or the RHRO and must be noted on all announcements.
- Completed Forms. All applicants must submit the following completed forms to the office listed on the vacancy announcement.
- A current rèsumé or application. (The DHR Director or the RHRO may not require a specific application but may specify in the vacancy announcement specific information that a rèsumé or application requires.)
- A properly completed and signed copy of the Bureau of Indian Affairs (BIA) Form BIA-4432, “Verification of Indian Preference for Employment in the Bureau of Indian Affairs and the Indian Health Service,” for employees claiming Indian preference.
Current employees with acceptable proof (as identified in B above) on file in their Official Personnel Folder are still required to submit a copy of the documentation with their application. Indian preference will not be given unless Form BIA-4432 is attached to the application.
- A USOPM or State employment office notice of rating or certificate of proficiency, if required by the vacancy announcement.
- A certificate of release or discharge from active duty (DD-214), if claiming Veteran's preference and/or a completed claim for 10-point Veterans preference (SF-15), along with the documentary proof it requires.
- A Declaration for Federal Employment, OF 306; and if covered by P.L. 101-630/P.L. 101-647 (Child Care Positions), the form OMB 0917-0028, Addendum to the Declaration for Federal Employment.
- An appropriate license, certification, or registration when required by the qualification standards.
- Education transcripts when positive education is required by the series occupation.
7-1.4 EVALUATION OF CANDIDATES
- Indian Preference. Indian preference eligibility must be established in accordance with Part 7, Chapter 3, Section 3, “Verification of Indian Preference,” IHM, or succeeding documents.
- Citizenship Requirements. An applicant must be a U.S. citizen. It is IHS policy that lack of U.S. citizenship disqualifies an applicant for appointment under Schedule A authority 213.3116(b)(8). The DHR Director has the authority to request from the USOPM exceptions to this requirement only if the current Appropriations Act, immigration law or executive order authorizes the IHS to pay citizens from another country. To meet USOPM requirements for an exception, the IHS must also document that the position is extremely difficult to fill (e.g., it is in a remote location); that the vacancy has been advertised for a long period of time; that qualified candidates have been difficult to recruit and retain; and that no qualified Indian preference and U.S. candidates have applied for the position. (The OPM web site lists all documentation requirements for hiring a non-citizen.) Hiring requests are submitted to the DHR Director, then to HHS, and finally to the USOPM for a final decision.
- Qualifications Standards. The IHS qualification standards for employing Indians are independent from civil service standards. A 1984 U.S. Court of Appeals decision (Preston v. Heckler) required the Secretary, HHS, to establish qualification standards for Indians applying for positions in the excepted service, giving sufficient weight to Indians’ unique experience and background and to their superior knowledge of Indian needs and problems. Positions in the IHS are considered excepted service when they are filled under Schedule A authority 213.3116(b)(8) by Indians entitled to Indian preference.
[Note: Written tests may not be used to determine basic qualifications or in the ranking process unless they are required by the applicable Preston standard. The prohibition against the use of written tests does not preclude the use of proficiency tests such as a test to measure typing speed. For a particular vacancy, the DHR Director or the RHRO must use the same assessment device for all applicants. For example, the DHR Director or the RHRO may not accept self-certification from some applicants and require others to take a proficiency test. However, if the DHR Director or the RHRO is requiring a proficiency test, it may accept the results of a proficiency test administered by another organization such as USOPM or a State employment office.]
- Selective Factors. Selective factors essential to satisfactory job performance cannot be added to an advertised vacancy announcement. At Headquarters, the selecting official and the DHR staff develop selective factors that the DHR Director then approves. At the Area Offices, the selecting official and the Regional Human Resources office staff develop selective factors. The RHRO approves these factors. These approvals are obtained prior to a vacancy being advertised.
(See Part 7, Chapter 2, Section 7, “Merit Promotion Plan,” IHM, for additional information on the proper use of selective factors.)
- Performance Appraisal. Although not used in the ranking process, performance appraisals are used in accordance with HHS/IHS policies or manual issuances in existence at the time the vacancy is announced.
- Cut-Off Dates. Applicants must meet all qualification requirements, including selective factors, by the closing date of the vacancy announcement. If an open-continuous announcement is used, the applicant must meet the requirements by the cut-off date being used for the specific position being filled. All legal and regulatory proof, including any license, registration, or certification, must be documented prior to the employee’s entrance on duty date.
- Suitability. Applicants must be suitable for Federal employment in accordance with 5 CFR 302 and 731, and HHS and IHS implementing instructions and guidance.
- Public Law 101-630 Requirements. Applicants convicted of crimes set forth in P.L. 101-630, "Indian Child Protection and Family Violence Prevention Act" or P.L. 101-647," Crime Control Act," are ineligible for IHS positions involving regular contact with children. The RHRO, in conjunction with Area Office officials, determines which positions in each region are covered by these laws.
7-1.5 RANKING PROCEDURES
- Ranking Applications. Except as stated in 7-1.5D below, applicants identified as basically qualified under the provisions of 7-1.4A above will have their applications ranked in comparison to the same crediting plan developed for ranking of Merit Promotion Plan (MPP) candidates. Basically qualified applicants are all ranked against the crediting plan that was developed before the vacancy was announced. The crediting plan will decide which applicants score higher - those applicants will be referred to the selecting official. Those who score below a minimum level will not be referred. Performance appraisals will not be used in rating or ranking applicants under this plan.
- Qualification Review Board. A human resources representative or a qualifications review board (QRB) will rate and rank an application using the crediting plan established for the specific vacancy. (The QRB may consist of the same individuals who are serving on an ad hoc promotion panel as discussed in the MPP.) The QRB is convened at the option of the selecting official. Through their evaluation, the QRB determines the best qualified candidates who can be referred to the selecting official on the Candidate Referral Roster.
- The composition of the QRB is determined by the DHR Director or the RHRO with the advice and guidance from selecting officials. The QRB normally consists of at least two voting members. Insofar as practicable, board membership should include women, minorities, and non-minorities. As a non-voting member of the board, a representative of the DHR Director or the RHRO provides advice and assistance. The selecting official is not a member of the board. The board members must have a working knowledge of the position being filled. Where feasible, at least one member should be from a different organizational segment than the segment supervised by the selecting official. The DHR Director or the RHRO provides any necessary training on evaluation methods, procedures, and regulatory requirements.
- The final scores, which will fall in the 0 to 4 range, must be converted to a scale of 100, with 70 as the minimum eligible rating. Since only the eligible applicants are ranked, and the highest possible ranking is 4, the actual ranking must be multiplied by 7.5 to put it on a 0 to 30 basis. Then, 70 points for minimum eligibility are added, plus 5 or 10 points for Veterans’ preference, if applicable. Fractional numbers are not rounded off.
- Ten or Fewer Candidates. The ranking process described in 7-1.5 above may be waived whenever there are 10 or fewer qualified applicants for a vacancy under this plan and none of them has Veterans’ preference or entitlement to priority consideration as defined in 5 CFR Part 302.
- Veteran’s Preference. As long as three or more qualified applicants entitled to Veterans’ preference are available for a position of elevator operator, guard, messenger, or custodian, no applicants without Veterans’ preference may be placed on a Candidate Referral Roster.
When a candidate possesses Veterans’ preference and is applying for a position other than those listed above, he or she should be provided with appropriate credit. The rules regarding Veterans’ preference apply.
7-1.6 REFERRAL OF APPLICANTS
- Alphabetical Listing. Except when ranking has been waived as stated above, the DHR Director or the RHRO will list applicants on the Candidate Referral Roster in the manner described in 5 CFR 302 (See Section C below). If the ranking has been waived as described above, applicants under the Excepted Service Examining Plan are listed on the Candidate Referral Roster in alphabetical order by surname.
- Priority Re-employment List. Candidates on the priority re-employment list must be referred before any other applicants. This means that management is only given the priority re-employment list from which a selection must be made except when it can be clearly demonstrated that the pass over is necessary to prevent undue interruption in the IHS mission.
- Numerical Order. (Note: This is only an example. Each office may develop its own process.) Within each entitlement group, eligible candidates will be referred in numerical score order. Tie scores are broken by combining alphabetical order by surname with the date. Following is the ranking from highest to lowest when there is a tie in numerical scores between eligibles in different preference categories:
- Compensable Disability Preference (CPS) - more than 30 percent;
- Compensable Disability Preference (CP) - between 10 percent and 30 percent;
- Disability Preference (XP) 10-point - less than 10 percent;
- Derived Preference (XP) 10-point; and
- Tentative Preference (TP) 5-point.
- Office of Personnel Management Acronyms. The Office of Personnel Management's shorthand terms for awarding varying degrees of Veterans' preference follow, as described in the United States Office of Personnel Management (OPM) Vet Guide at
- CPS = 10-point,30 percent. Ten points are added to the passing score or rating of a Veteran who served at any time and who has a compensable service-connected disability rating of 30 percent or more.
- CP = 10-point. Ten points are added to the passing score or rating of a Veteran who served any time and who has a compensable service-connected disability rating of at least 10 percent but less than 30 percent.
- XP = 10-point. Ten points are added to the passing score or rating of a Veteran who served at any time and has a present service-connected disability or is receiving compensation, disability retirement benefits, or pension from the military or Department of Veterans Affairs, but does not qualify as a CP or CPS; or a Veteran who received a Purple Heart.
- XP = 10-point. Ten points are added to the passing score or rating of spouses, widows, widowers, or mothers of Veterans. This is “derived preference” because it is based on the service of a Veteran who is not able to use the preference. (They must meet specific requirements as found in the USOPM Vet Guide.)
- TP = 5-point. Five points are added to the passing score or rating of a Veteran who has served during a war or other specific periods of time (as found in the USOPM Vet Guide).
- Ranking Non-professional positions. For non-professional positions, Veterans with 30 points or 10 points compensable disability are listed first in order of their augmented scores, and then everyone else is listed in order of their augmented scores. This could result in a list where a veteran with 30 points compensable disability or 10 points compensable disability with a score of 80 is listed ahead of a veteran with a score of 90.
- Ranking Professional Positions at GS-9 and Above. For professional positions at GS-9 and above, applicants are listed in the order of their augmented scores. Veterans are listed before non-veterans with the same score. Normally, the DHR Director or the RHRO will refer a number of the highest rated applicants sufficient to provide for any declinations that might be received. [Note: Applicants on the priority re-employment list must be ranked in the same way and are referred before any applicants can be referred under this part.]
7-1.7 SELECTION OF APPLICANTS
- Three Highest Applicants. When ranking of candidates is required (See Section 7-1.5), the selecting official has the right to select any of the three highest ranked available candidates referred on the Candidate Referral Roster, except a Veteran may not be passed over to reach a non-veteran. (See exceptions provided in 5 CFR, Part 302, Chapter 1, Subpart D, Section 302.401b and HHS Instruction 302-1.)
- Interview Applicants. Interviews are not required, but selecting officials are encouraged to interview all applicants who are referred and within reach on the Candidate Referral Roster. If applicants are located outside the commuting area, telephone interviews are acceptable.
- No Selection. If no selection is made, a Candidate Referral Roster will become void 25 calendar days after its issue date. The human resources officer (or his/her designee) and the selecting official’s supervisor may extend the deadline an additional 25 calendar days. If a selection is made, additional selections may be made within 90 calendar days of the date the roster was issued. The positions to be filled must have the same title, series, grade, and promotion potential; have the same qualification requirements; and be in the same geographic locations as the positions announced. All efforts should be made to avoid the need to extend the roster, keeping in mind the time frames required to fill positions after the closing date of an announcement.
- Reference Checks. Indian Health Service selecting officials must conduct reference checks before making employment selections and document results on the individual selected. (See Supervisor’s Guide for Conducting Reference Checks, or any successor instructions.)
- Performance Appraisal. Since performance appraisals are not considered in the excepted service examining process, selecting officials and the DHR Director or the RHRO are required to make appropriate reference inquiries to permit a fully informed consideration of applicants referred for selection.
- Non-Merit Factors. Selections under this plan will be made without regard to any non-merit factors such as race, color, religion, sex, national origin, mental or physical disability, marital status, age, sexual orientation, reprisal, or membership or non-membership in any employee organization. Non-merit factors do not include Indian preference rights extended under the “Indian Reorganization Act.”
7-1.8 MAINTENANCE OF RECORDS
- File Maintenance. Records will be maintained for 2 years from the effective date of the personnel action (or longer if an EEO complaint, grievance, or litigation is pending) in such a manner that any recruitment action may be reconstructed, regardless of whether or not it resulted in a selection.
- File Contents. At a minimum, the file must contain the following:
- Vacancy Announcement.
- Qualification standards used.
- Annotation of the crediting plan and job analysis used. (A copy of the crediting plan is maintained in the merit promotion/recruitment file and must also be maintained in a separate and secure location and should be retained until revised or replaced. Crediting plans are considered to be examining material, and in most cases, they may not be released because their release could give applicants who see them an unfair advantage over other applicants.)
- Applications (and attachments) for all applicants, with qualifications determinations (qualified or not qualified) and the basis for such determinations documented for each applicant.
- Evaluation forms showing, for each qualified applicant, the results of the ranking against the crediting plan (except when ranking has been waived under the provisions of 7-1.5 and 7-1.6 above) and the ranking of each applicant.
- Names of applicants and their final scores.
- The Candidate Referral Roster including the names and grades of the applicants, (the part of the roster from which the selection was made), the name of the selectee, and the signature of the selecting official. Such rosters must show that the provisions of Indian preference and Veterans’ preference were followed.
- Non-selection letters sent to applicants.
- Confirmation letter of job offer sent to the selectee with an appointment form SF 50.
7-1.9 INFORMATION AVAILABLE TO APPLICANTS
- Notification. Within 45 days of the announcement's closing date, the DHR Director or the RHRO notifies each applicant when or if a selection has been made. However, notification is not required when selection is made from an open-continuous announcement.
- Information. Upon request, the DHR Director or the RHRO will inform applicants of the following:
- Whether the applicant met the minimum qualification requirements.
- Whether he or she was on the referral roster and was considered for the position.
- Who was selected, if a selection was made for the position.
- Review. This plan is made available upon request to all actual and potential applicants.
- Availability. Applicants may review all applicable policies, regulations, and qualification standards.
- Crediting Plans. Crediting plans or rating schedules may not be released because they are considered to be examinations.
- Non-Selection. Applicants entitled to consideration on the priority re-employment list or Veterans' preference list are entitled upon request to the reasons for being passed over in favor of an applicant not on the priority re-employment list or an applicant not entitled to Veterans' preference.
7-1.10 REQUEST FOR REVIEW OF PERSONNEL ACTIONS
- Employees. If an employee has a complaint about how the application of this plan affects him or her and the matter cannot be resolved on an informal basis, the employee may file a grievance under applicable grievance procedures.
- Outside Applicants. In the event an applicant from outside the HHS has a complaint about the application of this plan affecting him or her and the matter cannot be resolved on an informal basis with the staff of the Human Resources Office, the applicant may request a formal review. The decision to conduct the formal review must be made by a higher level official other than the individual involved in the original action. For example, if an RHRO (DHR Director for HQ positions) was not involved in the original action, it would be appropriate for him or her to conduct the review. If the RHRO was involved, it would be appropriate for the DHR Director or his/her designee to conduct the review. The reviewing official may obtain technical assistance from a member of the Regional Human Resources Office who was not involved in the original decision or from another RHRO.
[Note: Applicants who are currently in the Commissioned Corps are generally covered under the provisions of paragraph B because they are attempting to leave the Commissioned Corps and enter into the civil service (via the excepted service), usually for the first time like other outside applicants.]
- Employees and Outside Applicants Claiming Discrimination. Employees and outside applicants who believe that a decision made under this plan improperly involved consideration of race, color, religion, sex, national origin, mental or physical disability, marital status, age, sexual orientation, reprisal, or membership or non-membership in any employee organization may file a complaint of discrimination under 29 CFR Part 1614, and under HHS and IHS implementing instructions.
7-1.11 PROGRAM REVIEW
Each RHRO will periodically evaluate the effectiveness of the procedures set forth in this plan and will encourage suggestions for program improvement from all levels of management and interested applicants. As necessary, modifications to the plan will be made. The DHR Director will conduct any necessary IHS-wide evaluations.
7-1.12 EXCEPTED SERVICE CREDITABLE FOR CAREER TENURE IN THE COMPETITIVE SERVICE
- Career Tenure. Ordinarily, excepted service is not creditable for career tenure when an individual is given a competitive appointment from a competitive examination. However, in a letter dated February 4, 1965, the former Civil Service Commission (CSC), now the USOPM, granted special authority to PHS, whereby, following a competitive appointment, the DHR Director or the RHRO may credit toward career tenure the non-temporary excepted service rendered by an Indian employee under Schedule A authority 213.3116 (b)(8).
This authority is applicable while the employee remains in the IHS. It also applies to Indian employees who transfer to the IHS from positions in the Department of the Interior (DOI) under Schedule A authority 213.3112(a)(7). (Similarly, the DOI has been authorized to apply this rule to employees of the IHS who transfer to positions directly and primarily related to providing services to Indians in that Department.) Indians who are given career-conditional, competitive appointments, and who are considered to have career tenure under this special authority are in Group I for RIF purposes as long as they remain in the IHS. If they leave the IHS, their status is the same as that of any other career-conditional employee with a competitive appointment. The career tenure granted under this special authority only applies for RIF purposes and has no other effect.
When this special rule for crediting excepted service toward career tenure is used, the following reporting instructions should be followed on the SF-50-B, Notification of Personnel Action:
- Conversion to a Competitive Career-Conditional Appointment. When an Indian is appointed from a competitive examination to a position in the IHS, the appointment should be effected as a "Conversion to Career-Conditional Appointment" regardless of how long the employee served under Schedule A authority 213.3116(b)(8) or 213.3112(a)(7). The beginning date of service counting toward career tenure under the normal rule is the date of conversion to the career-conditional appointment. However, if the employee has completed three years of service under a non-temporary excepted appointment, the following statement is to be shown in Item 37, “Remarks”: “This employee is considered to have career status (Group I) while he/she holds a position in the IHS.”
- Change in Tenure-Indian Preference. When an Indian employee completes three years of substantially continuous service under the special rule, which involves service both before and after receiving a career-conditional appointment from a competitive examination, a SF-50 should be issued showing the nature of action as “Change in Tenure-Indian Preference” and the authority as “CSC Letter of February 4, 1965.” The statement shown in (1) above should be included in item 37, “Remarks.” Copies of the SF-50 should not be sent to the payroll office or USOPM, but provided to the employee and placed in the Official Personnel Folder.
- Conversion to Career Tenure Under Normal Rules. When an employee completes three years of substantially continuous creditable service after receiving a career-conditional appointment from a competitive examination, an SF-50 B should be issued in accordance with USOPM’s Operating Manual for processing personnel actions.
- Transfer from the DOI (BIA) to the IHS. When an employee occupying a competitive position in the DOI (BIA) to which the Indian preference law is applicable transfers to a competitive position in the IHS, the transfer should be affected as “Transfer Career-Conditional’’ or “Transfer Career,” as appropriate. When the employee has completed three years of creditable service under the “special rule,” but has not completed the three years of substantially continuous service under the normal rules for career status in the competitive service, the statement shown under (1) above should be included in Item 37, “Remarks.”
7-1.13 CONVERSION TO COMPETITIVE SERVICE UNDER P.L. 100-472
- Conversion. Public Law 100-472 authorized the conversion for IHS and BIA employees appointed under their agencies’ respective Schedule A authorities to career appointments following three years of continuous service. The USOPM has no authority over these conversions, so each agency is permitted to develop its own procedures and requirements. The IHS will use the following procedures and requirements:
- Employees with three years of continuous service under the IHS Schedule A authority 213.3116(b)(8) or the BIA Schedule A authority 213.3112(a)(7) are eligible for conversion to the competitive service.
The service may be under a combination of the two authorities. For example, if an employee begins in the BIA for two years and comes to the IHS without a break in service, he or she would be eligible for conversion after one year in the IHS because the total service under the two authorities would be three years. A break in service is any time, even one work day, when the employee is not under one of the two authorities mentioned above. After any break, the employee must begin a new three-year period.
- If an employee begins under one of the Schedule A authorities for two years and then converts to the competitive service under a competitive examination, that employee does not become a career employee after one year in the competitive service because he or she did not have three years of service under the Schedule A authority. He or she does become a career employee for RIF purposes as described in 7-1.13 of this plan. He or she would have to serve three years in the competitive service to become a career employee for all purposes. If the employee returns to the excepted service before completing three years, he or she would have to serve three additional years under the excepted appointment in order to be converted to the competitive service under P.L. 100-472. This is because he or she had a break. However, he or she would be in tenure Group I for RIF purposes. (See HHS Instruction 302-1 and also Section 7-1.13.)
- The three year requirement for conversion to a career appointment includes all time under the proper Schedule A authorities; but, at the time of conversion, the employee must be on an appointment without time limitation. For example, if an employee began his or her service under two one-year appointments under Schedule A authority 213.31 16(b)(8) and was converted to an appointment under that authority without time limitation, he or she would be eligible for conversion after one year of service under that appointment without time limitation because the total service under the Schedule A appointments was three years. However:
- If another employee had three consecutive one-year appointments, that employee would not be eligible for conversion because he or she was not on an appointment without time limitation at the time of conversion.
- If that employee was given an appointment without time limitation, he or she would be immediately eligible for conversion because he or she would have the three years of service and would be on an appointment without time limitation.
[Note: The following statements regarding conversions are included in SF-50s: “P.L. 100-472 provides that IHS employees appointed into the excepted service under Schedule A 213.3116(b)(8) shall be converted to a career competitive appointment after three years of continuous service and satisfactory performance. The three years of service may begin with temporary or permanent employment.”]
- The number of days between their appointment dates, not the number of days they worked, is used to compute conversion dates for employees on intermittent appointments. For example, if employees on a permanent intermittent appointment began working under the appropriate Schedule A authority on February 1, 2003, they would be eligible for conversion on February 1, 2006, regardless of how many days they actually worked. The USOPM counts only the days they actually worked. However, USOPM regulations do not govern these conversions. If an employee completes three years under the excepted appointment and is converted to the competitive service, the employee may want to go back to the excepted service, for example, to get a higher grade position under the excepted service examining plan. If the employee does this, he or she can come back to the competitive service by reinstatement, but this would be at the discretion of the Agency. The other way for the employee to return to the competitive service would be to serve three new years under the excepted appointment, after which conversion to the competitive service would be mandatory if all requirements were met.
- Employees who leave the competitive service to enter the excepted service should sign a statement indicating that they understand this as well as the other rights which they are giving up, e.g., appeal rights under 5 CFR 432 and 5 CFR 752.
- To be converted, an employee’s most recent performance rating must be fully successful or better. However, if an employee does not have a rating of record, the conversion must be effected.