H.R. 3738 (103rd): Pay Equity Employment Reform Act of 1994

103rd Congress, 1993–1994. Text as of Jan 26, 1994 (Introduced).

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HR 3738 IH

103d CONGRESS

2d Session

H. R. 3738

To promote equitable pay practices and eliminate discrimination within the civil service; to provide for more equitable pay practices within the legislative branch; to require the executive branch to gather and disseminate information regarding, and to promote techniques to eliminate, discriminatory wage-setting practices and discriminatory wage disparities which are based on sex, race, or national origin; and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 26, 1994

Mr. ANDREWS of Texas (for himself, Ms. NORTON, Mrs. MORELLA, and Mrs. SCHROEDER) introduced the following bill; which was referred jointly to the Committees on Post Office and Civil Service, House Administration, Ways and Means, and Education and Labor


A BILL

To promote equitable pay practices and eliminate discrimination within the civil service; to provide for more equitable pay practices within the legislative branch; to require the executive branch to gather and disseminate information regarding, and to promote techniques to eliminate, discriminatory wage-setting practices and discriminatory wage disparities which are based on sex, race, or national origin; and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ‘Pay Equity Employment Reform Act of 1994’.

TITLE I--PROVISIONS RELATING TO PAY AND PERSONNEL PRACTICES IN THE EXECUTIVE BRANCH

SEC. 101. STATEMENT OF PURPOSE.

    (a) PURPOSE- The purpose of this title is to determine--

      (1) whether the Government’s position-classification system under chapter 51 of title 5, United States Code, and prevailing-rate system under subchapter IV of chapter 53 of such title 5, are designed and administered in a manner consistent with the general policy (as expressed in title VII of the Civil Rights Act of 1964 and section 6(d) of the Fair Labor Standards Act of 1938) that sex, race, and national origin should not be among the factors considered in determining the rate of basic pay for any employee or position; and

      (2) whether the Government’s appointment and promotion practices with respect to the respective systems referred to in paragraph (1) are generally consistent with applicable provisions of law prohibiting discrimination on the basis of sex, race, or national origin.

    (b) LINKAGE WITH GENERAL SCHEDULE- For purposes of this title, subchapter III of chapter 53 of title 5, United States Code, shall be considered to be part of the position-classification system under chapter 51 of such title 5.

SEC. 102. STUDY REQUIREMENTS.

    (a) METHODOLOGY-

      (1) IN GENERAL- In order to carry out the purpose set forth in section 101(a)(1), the appropriate officials (as defined in section 107(4)) shall provide, by contract with the consultant selected under section 103(b), for the performance of a study under which objective, nondiscriminatory job-evaluation techniques shall be applied with respect to a representative sample of occupations, giving particular attention to occupations in which members of any racial or ethnic group or either sex are disproportionately represented.

      (2) SPECIFIC COMPARISONS- In performing the study, comparisons shall be made--

        (A) within each system and between the respective systems referred to in section 101(a)(1); and

        (B) on an intraagency and interagency basis.

    (b) SEPARATE STUDY- Under the contract, the consultant shall be required to perform a separate study to carry out the purpose set forth in section 101(a)(2).

    (c) VIEWS TO BE CONSIDERED- In carrying out its responsibilities under this title, the consultant shall provide for meetings with, and give thorough consideration to the views and recommendations of--

      (1) labor organizations representing individuals in Government service generally;

      (2) employee organizations which--

        (A) have as a purpose promoting the interests of women in Government service; and

        (B) are composed primarily of women holding positions covered by either of the systems referred to in section 101(a)(1); and

      (3) employee organizations which--

        (A) have as a purpose promoting the civil rights of individuals in Government service; and

        (B) are composed primarily of minority group members holding positions covered by either of the systems referred to in section 101(a)(1).

SEC. 103. SELECTION OF A CONSULTANT.

    (a) LIST OF QUALIFIED CONSULTANTS- The Comptroller General of the United States shall prepare and, as soon as possible, submit to the appropriate officials a list of at least 5 consultants which, based on their impartiality, expertise, and experience, the Comptroller General considers appropriate to perform the studies required by this title. Selections under this subsection shall be made in accordance with the laws and regulations governing procurements by agencies generally.

    (b) FINAL SELECTION- The selection of a consultant to perform the studies required by this title shall be made by the appropriate officials from among the consultants included on the list under subsection (a).

SEC. 104. REPORTING REQUIREMENTS.

    (a) DEADLINE- The appropriate officials shall, not later than 12 months after the effective date of this title, submit to the President and each House of Congress--

      (1) the consultant’s report, as described in subsection (b); and

      (2) such officials’ comments with respect to the report.

    (b) MATTERS TO BE ADDRESSED IN THE CONSULTANT’S REPORT- The consultant’s report shall include--

      (1) a list of the occupations between or among which pay disparities were found to exist, even though the work performed in those respective occupations involved skills, effort, responsibilities, and qualification requirements which, while not identical, were equivalent when taken in their totality; and

      (2) the extent to which any pay disparities identified under paragraph (1)--

        (A) can be accounted for by the application of objective, nondiscriminatory job-evaluation techniques; or

        (B) cannot be accounted for by the application of objective, nondiscriminatory job-evaluation techniques.

    The report shall also include the consultant’s findings and conclusions with respect to the matter described in section 101(a)(2).

    (c) MATTERS TO BE ADDRESSED IN COMMENTS-

      (1) IN GENERAL- Included as part of the comments referred to in subsection (a)(2) shall be--

        (A) a statement by the appropriate officials as to whether any disparity described in subsection (b)(2)(B) may be inconsistent with the general policy referred to in section 101(a)(1); and

        (B) subject to paragraph (3), recommendations for any corrective action or other measures which such officials consider appropriate with respect to any disparities identified under subparagraph (A).

      (2) IMPLEMENTATION OF MEASURES- The appropriate officials shall identify which, if any, of the recommendations under paragraph (1)(B) may be carried out pursuant to any authority available under existing law, and shall make recommendations for any legislation or other authority needed with respect to any of the other recommendations.

      (3) LIMITATION- The appropriate officials may not make any recommendation under this title which would involve a reduction in any grade or rate of basic pay.

    (d) DISSEMINATION WITHIN LEGISLATIVE BRANCH- The appropriate officials shall furnish a copy of the consultant’s report, together with such officials’ comments, to each appointing authority in the legislative branch of the Government.

    (e) CONTINUING OVERSIGHT- The Office of Personnel Management shall, not later than 6 months after the requirements of subsection (a) have been met, and at least annually thereafter, submit to the President and each House of Congress (including the Office of Senate Fair Employment Practices and the Office of Fair Employment Practices of the House of Representatives) a report which--

      (1) shall describe any progress made in implementing the recommendations described in subsection (c)(1)(B);

      (2) shall include information relating to levels of pay for male and female employees, respectively, within the same occupation in the executive branch; and

      (3) may include any other information or recommendations which the Office considers appropriate.

SEC. 105. RULE OF CONSTRUCTION.

    Nothing in this title shall be considered to limit any of the rights or remedies provided under the Civil Rights Act of 1964, section 6(d) of the Fair Labor Standards Act of 1938, or any other provision of law relating to discrimination on the basis of race, color, religion, sex, national origin, handicap, or age.

SEC. 106. FUNDING.

    Sums appropriated to the Office of Personnel Management for general operating expenses shall be available to carry out this title.

SEC. 107. DEFINITIONS.

    For the purpose of this title--

      (1) the term ‘occupation’ means any grouping of positions within an agency, as determined under chapter 51 of title 5, United States Code, or subchapter IV of chapter 53 of such title;

      (2) the term ‘agency’ means an executive agency, as defined by section 105 of title 5, United States Code (other than the General Accounting Office);

      (3) the term ‘consultant’ includes an organization which provides consultant services;

      (4) the term ‘appropriate officials’ means the Director of the Office of Personnel Management, the Director of the Office of Management and Budget, and the Secretary of Labor;

      (5) the term ‘labor organization’ has the meaning given that term by section 7103(a)(4) of title 5, United States Codes; and

      (6) the term ‘Government’ means the Government of the United States.

SEC. 108. EFFECTIVE DATE.

    This title shall take effect 30 days after the date of the enactment of this Act.

TITLE II--PROVISIONS RELATING TO PAY AND PERSONNEL PRACTICES IN THE LEGISLATIVE BRANCH

SEC. 201. RESPONSIBILITIES OF THE GENERAL ACCOUNTING OFFICE.

    The General Accounting Office shall--

      (1) with respect to positions in the legislative branch to which title VII of the Civil Rights Act of 1964 and section 6(d) of the Fair Labor Standards Act of 1938 apply, perform studies similar to those required under title I; and

      (2) develop a comprehensive plan under which the general principles set forth in section 101(a) may be made applicable to positions in the legislative branch other than those described in paragraph (1).

SEC. 202. REPORTING REQUIREMENT.

    The General Accounting Office shall submit a written report to the President and each House of Congress not later than 12 months after the date of the enactment of this Act. Included in such report shall be--

      (1) the findings and conclusions of its studies under section 201(1), together with any recommendations which the General Accounting Office considers appropriate; and

      (2) the details of its comprehensive plan, as required under section 201(2).

TITLE III--DISCRIMINATORY WAGE-SETTING PRACTICES AND DISCRIMINATORY WAGE DISPARITIES

Subtitle A--Technical Assistance

SEC. 301. STATEMENT OF PURPOSE.

    Recognizing that the identification and elimination of discriminatory wage-setting practices and discriminatory wage disparities are in the public interest, the purpose of this subtitle is to help eliminate such practices and disparities by--

      (1) providing for the development and utilization of techniques that will promote the establishment of wage rates based on the work performed and other appropriate factors, rather than the sex, race, or national origin of the employee; and

      (2) providing for the public dissemination of information relating to the techniques described in paragraph (1), thereby encouraging and stimulating public and private employers, through the use of such techniques, to correct wage-setting practices and eliminate wage disparities, to the extent that they are based on the sex, race, or national origin of the employee, rather than the work performed and other appropriate factors.

SEC. 302. PROGRAM SPECIFICATIONS.

    In order to carry out the purpose of this subtitle, the Secretary of Labor shall develop and carry out a continuing program under which, among other things, the Secretary shall--

      (1) develop and implement a program for the dissemination of information on efforts being made in the private and public sectors to reduce or eliminate wage disparities, to the extent that they are based on the sex, race, or national origin of the employee, rather than the work performed and other appropriate factors;

      (2) undertake and promote research into the development of techniques to reduce or eliminate wage disparities, to the extent that they are based on the sex, race, or national origin of the employee, rather than the work performed and other appropriate factors; and

      (3) develop and implement a program for providing appropriate technical assistance to any public or private entity requesting such assistance to correct wage-setting practices or to eliminate wage disparities, to the extent that they are based on the sex, race, or national origin of the employee, rather than the work performed and other appropriate factors.

SEC. 303. DEFINITION.

    For the purpose of this subtitle, the term ‘other appropriate factors’ includes factors such as--

      (1) the skill, effort, responsibilities, and qualification requirements for the work involved, taken in their totality;

      (2) geographic location and working conditions; and

      (3) seniority, merit, productivity, education, and work experience.

Subtitle B--Wage Discrimination Based on Sex, Race, or National Origin

SEC. 351. AUTHORIZATION OF APPROPRIATIONS.

    There is authorized to be appropriated to the Equal Employment Opportunity Commission $100,000,000 for each of the fiscal years 1995, 1996, 1997, 1998, and 1999, to be expended--

      (1) to enforce the provisions of those laws administered by the Commission that relate to wage discrimination based on sex, race, or national origin; and

      (2) to carry out activities to increase public awareness of the right to be free from such wage discrimination that violates such laws.

Subtitle C--Compliance With Executive Order 11246

    The Secretary of Labor shall develop and implement standard procedures to review compliance with Executive Order 11246 in every contract audited through the contract compliance program of the Department of Labor.

Subtitle D--Amendments To Achieve Budget Neutrality

SEC. 381. ESTABLISHMENT OF STANDARD PAYMENT RATES FOR HOME HEALTH SERVICES.

    (a) IN GENERAL-

      (1) STANDARD PAYMENT RATES DESCRIBED- Title XVIII of the Social Security Act is amended by inserting after section 1889 the following new section:

‘STANDARD PAYMENT RATES FOR HOME HEALTH SERVICES

    ‘SEC. 1890. (a) IN GENERAL- Notwithstanding section 1814(b)(1), section 1833(a)(2)(A), or any other provision of this title, the amount of payment made under this title for home health services furnished by a home health agency on or after January 1, 1994, shall equal the adjusted standard per visit payment rate determined under subsection (b) for the category of home health services involved (as defined in subsection (d)(1)) for the fiscal year during which the services are furnished.

    ‘(b) DETERMINATION OF ADJUSTED STANDARD PER VISIT PAYMENT RATES-

      ‘(1) IN GENERAL- The adjusted standard per visit payment rate for home health services furnished in a fiscal year is equal to--

        ‘(A) the base per visit rate for the category of home health services involved for the fiscal year determined under paragraph (2), adjusted for area wage differences under paragraph (3); and

        ‘(B) in the case of home health services in the category of services described in subsection (d)(1)(A) that involve the furnishing of non-routine medical supplies directly identifiable as services for an individual patient (but not including durable medical equipment, prosthetic devices, or orthotics and prosthetics), the amount described in subparagraph (A) increased by the medical supply add-on described in paragraph (4).

      ‘(2) BASE PER VISIT RATE-

        ‘(A) INITIAL RATE- The base per visit rate for a category of home health services furnished by a home health agency in fiscal year 1994 shall be an amount equal to 93 percent of the mean of the labor-related and nonlabor costs for that category of services utilized for purposes of computing limits under section 1861(v)(1)(L) for cost reporting periods beginning on or after July 1, 1993, and before July 1, 1994, increased by the cost reporting period adjustment factor for January 1994 (as specified in the regulation setting forth such limits).

        ‘(B) SUBSEQUENT YEARS- The base per visit rate for a category of home health services furnished by a home health agency in a fiscal year beginning on or after October 1, 1994 is the base per visit rate for that category of services for the preceding fiscal year increased by the home health market basket percentage increase (as defined in subsection (d)(2)) for such fiscal year.

      ‘(3) ADJUSTING FOR AREA WAGE LEVELS- The Secretary shall adjust the base per visit rate determined under paragraph (2) for home health services furnished by a home health agency for a fiscal year by utilizing the area wage index applicable during the fiscal year under section 1886(d)(3)(E) to hospitals located in the geographic area in which the agency is located (determined without regard to whether such hospitals have been reclassified to a new geographic area pursuant to section 1886(d)(8)(B), a decision of the Medicare Geographic Classification Review Board or the Secretary under section 1886(d)(10)).

      ‘(4) MEDICAL SUPPLY ADD-ON DESCRIBED- The medical supply add-on described in this paragraph is equal to--

        ‘(A) for fiscal year 1994, the estimated national average cost of non-routine medical supplies directly identifiable as services for an individual patient (but not including durable medical equipment, prosthetic devices, or orthotics and prosthetics) associated with a home health visit, as estimated by the Secretary based upon the best data available and updated through fiscal year 1994 by the Secretary’s estimate of the increase in the medical equipment and supplies component of the supplies and rental consumer price index for all urban consumers (U.S. city average), from the end of the period from which the data was drawn through fiscal year 1994; and

        ‘(B) for a subsequent fiscal year, the add-on for the preceding fiscal year increased by the Secretary’s estimate of the percentage increase in the index referred to in subparagraph (A) for the fiscal year involved.

    ‘(c) COST REPORTING REQUIREMENTS-

      ‘(1) IN GENERAL- Not later than January 1, 1994, the Secretary shall implement a system under which a random sample of home health agencies shall submit cost reports. Cost reports submitted under such system shall be used solely for purposes of comparing the costs of home health agencies with the adjusted standard payment rates established under subsection (b).

      ‘(2) SYSTEM DESCRIBED- The system developed under paragraph (1) shall--

        ‘(A) utilize a different random sample of agencies for each 12-month period,

        ‘(B) include in such random sample 5 percent of all home health agencies, and

        ‘(C) to the greatest extent practicable and consistent with the preceding provisions of this paragraph, avoid requiring a home health agency to submit a cost report pursuant to paragraph (1) more than once in any 5-year period.

      ‘(3) REPORTS OF ADDITIONAL AGENCIES- Any home health agency that is not required to submit a cost report pursuant to paragraph (1) for a cost reporting period may be required by the Secretary to submit a simplified cost report for such period, in accordance with regulations issued by the Secretary. The Secretary may use such reports solely for the purposes described in such paragraph.

    ‘(d) DEFINITIONS- For purposes of this section:

      ‘(1) The term ‘category of home health services’ means any one of the following home health services:

        ‘(A) Skilled nursing services.

        ‘(B) Physical therapy services.

        ‘(C) Occupational therapy services.

        ‘(D) Speech therapy services.

        ‘(E) Medical social services.

        ‘(F) Home health aide services.

      ‘(2) The term ‘home health market basket percentage increase’ means, with respect to a fiscal year, the percentage by which the cost of the mix of goods and services comprising home health services will exceed the cost of such mix of goods and services for the preceding fiscal year, as estimated by the Secretary before the fiscal year begins.’.

      (2) EXCEPTIONS AND ADJUSTMENTS FOR COSTS SIGNIFICANTLY IN EXCESS OF PAYMENTS- The Secretary of Health and Human Services shall provide by regulation for such exceptions and adjustments to the payment amounts established for home health services under section 1890(a) of the Social Security Act (as added by paragraph (1)) as the Secretary deems appropriate for services for which a home health agency incurs costs that significantly exceed such payment amounts for reasons beyond the agency’s control, subject to any limits the Secretary may establish to ensure that such an exception or adjustment does not result in the reimbursement of any costs that the Secretary does not find to be reasonable.

    (b) CONFORMING AMENDMENTS-

      (1) AMENDMENTS RELATING TO PART A- (A) Section 1814(b) of such Act (42 U.S.C. 1395f(b)) is amended in the matter preceding paragraph (1) by striking ‘1813 and 1886’ and inserting ‘1813, 1886, and 1890’.

      (B) Section 1813(a)(5) of such Act, as added by section 604(a)(1), is amended by striking ‘the average of all the per visit costs’ and all that follows and inserting ‘the payment amount determined for such services under section 1890(a).’.

      (2) AMENDMENTS RELATING TO PART B- (A) Section 1832(a)(2)(F) of such Act, as added by section 604(a)(2), is amended--

        (i) by amending clause (i) to read as follows:

          ‘(i) the payment amount determined for such service under section 1890(a), less the amount a provider may charge as described in clause (ii) of section 1866(a)(2)(A);’; and

        (ii) in the matter following clause (iii), by striking ‘the average of all the per visit costs’ and all that follows and inserting ‘the payment amount determined for such services under section 1890(a).’.

      (B) Section 1861(v)(1)(L) of such Act (42 U.S.C. 1395x(v)(1)(L)) is amended by adding at the end the following new clause:

    ‘(iv) Clauses (i), (ii), and (iii) shall not apply to any services furnished on or after January 1, 1994.’.

    (c) EFFECTIVE DATE- The amendments made by this section shall apply to services furnished during cost reporting periods beginning on or after January 1, 1994.