The National Institutes of Health (NIH) is coming under fire from a congressional subcommittee for using a "loophole" in the law to pay senior officials as if they were consultants rather than staff employees. These NIH officials are able to draw salaries of up to $225,000 a year, nearly twice what they could otherwise earn, and are not required to file public financial disclosure forms that would otherwise be required.

In an unrelated development, the chair of the House Energy and Commerce Committee, Rep. Billy Tauzin (R-La.), has resigned his post because he plans to retire from Congress when his current term ends next year. The House Steering Committee has tapped Rep. Joe Barton (R-Texas), who now chairs the Energy and Commerce Subcommittee on Energy and Air Quality, to replace him. Tauzin's committee has been investigating various NIH policies and practices, including payments and gifts to top officials.

In a February 4 letter to Tommy Thompson, secretary of the Department of Health and Human Services (HHS), Rep. James Greenwood (R-Penn.), who is chairman of the Energy and Commerce Subcommittee on Oversight and Investigations, expressed concern that NIH's special pay mechanism was being misused. By implication, high-level NIH officials receiving this pay may "lack the legal authority to exercise their inherently government functions and are improperly holding themselves out as NIH institute directors and other high-level titles when by law they are only special-consultant employees," Greenwood wrote.

The provision of law that allows special pay to outside consultants comes under Title 42, Section 209(f) of the Public Health Service Act. According to Greenwood, that provision was created in the 1930s for "limited scientific appointments, not as an alternative compensation scheme." But in 1999, then NIH director Harold Varmus sought ways to allow the agency "to help recruit and retain top officials in key positions," according to an internal NIH memo cited variously.

The Title 42 mechanism was one effort. Varmus also loosened the range of outside consulting opportunities available to staff scientists and directors. The Los Angeles Times reported in December that several high-level NIH scientists and officials have received more than $2.5 million in consulting fees and stock options from drug companies over the past 10 years. Last month, NIH director Elias Zerhouni restructured the agency's system for implementing ethics regulations, suspended approval of all new consulting arrangements, and appointed a task force to examine these consulting deals, which have also become the topic of a Senate hearing.

"I understand that [Varmus] did strike some unusual or extraordinary deals with some of these individuals, and this is a matter that needs to be looked at," said Robert D. Wells, president of the Federation of American Societies for Experimental Biology and director of the Center for Genome Research at Texas A&M University. "NIH salaries are good, but not excellent. Furthermore, NIH jobs are government jobs and have all the pluses and minuses of government positions. So NIH must do what it can to enable top scientists to consult," Wells told The Scientist. "But, of course, it must be done with the appropriate guidelines and rules and regulations."

NIH spokesman John Burklow said the agency needs to be competitive if it is to recruit talented people. "We have to be cautious not to diminish NIH's ability to attract and retain the best scientific leaders in medical research," Burklow told The Scientist. "This has become even more important in the last 2 years, as we've had to face and respond to new public health threats like bioterrorism and SARS [severe acute respiratory syndrome] while continuing our efforts across the entire range of diseases affecting all of us, like cancer, heart disease, and diabetes."

NIH officials have not yet responded to Greenwood's request for documents. The probe is part of an ongoing investigation by House Energy and Commerce Committee into NIH policies and practices. Also under review are issues involving "lecture awards" and cash gifts to NIH officials from universities and research institutions receiving research grants and whether a former director of the National Cancer Institute improperly steered a multimillion contract to a particular university.

NIH has come under increased congressional scrutiny in recent months. In November, NIH's awarding of some 200 sex-related research grants was called into question, forcing the agency to defend its peer review process for the legislators. Last July, the House of Representatives came within only two votes of defunding five peer-reviewed NIH grants, four studying human sexual behavior and one investigating human linkages with a panda reserve in China.

"Any time the integrity of an agency such as the NIH is questioned, it's a very precious commodity that is being attacked," Wells said. "We must be very careful [that NIH] maintains the highest integrity."