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Top federal doctors lack whistle-blower shield

WASHINGTON -- Thousands of federal doctors and medical researchers who receive some of the highest salaries in government don't have the same protections for blowing the whistle on wrongdoing as other civil servants, a judge has ruled.

Administrative Judge Raphael Ben-Ami of the US Merit Systems Protection Board ruled recently that Dr. Jonathan Fishbein, a National Institutes of Health specialist, could not seek the board's protection from firing under the Whistleblower Protection Act.

Fishbein was hired by NIH in 2003 to help improve AIDS research practices. He alleges he is being fired because he uncovered concerns about sloppy research practices that might endanger patient safety.

NIH said that he is being fired for poor performance and that the allegations come from a "disgruntled" employee who failed to make his two-year probation period.

Fishbein is a "Title 42" employee and is paid $178,000 a year, slightly more than President Bush's Cabinet members are paid.

Title 42 of the federal code allows the government to pay research and medical experts as special consultants and give them salaries higher than the civil servant maximums. The law is designed to help the government compete against high-paying private industries.

NIH employs more than 3,959 Title 42 employees, and the Centers for Disease Control and Prevention employs another 200 to 300, according to the Department of Health and Human Services.

Ben-Ami ruled Nov. 9 that Fishbein was not covered by the Whistleblower Protection Act because he is a Title 42 employee and has "no appeal rights" during his probationary period.

"Title 42 appointments of special consultants are made without regard to the civil service laws"; therefore, they aren't permitted to appeal to the Merit Systems Protection Board under the whistle-blower law, he ruled. "The board lacks authority to consider the appellants' claims of discrimination or retaliation."

Fishbein's lawyers are appealing to the full board.

The whistle-blower law was passed more than a decade ago to strengthen federal workers' protections when they raise allegations of federal wrongdoing, giving them outlets like the board and the US Office of Special Counsel to seek legal protection.

The National Whistleblower Center, a Washington-based group that represents whistle-blowers like Fishbein, is urging Congress to fix what it called a "dangerous loophole" that exempts Title 42 workers from protections.

"This is a major setback for drug safety," said Kris Kolesnik, the center's executive director. "Many of these employees, such as Dr. Fishbein, hold sensitive health and safety posts. Without protections, these employees will not blow the whistle."

Fishbein was among several NIH employees who raised concerns in 2002 about a study in Africa involving the AIDS drug nevirapine.

Documents showed that the way the research was conducted violated federal patient-safety rules and suffered from record keeping and patient monitoring problems. But the study's general conclusion that the drug could be used safely in single doses to protect babies from HIV was upheld.

Attorney Steve Kohn, who represents Fishbein, said federal agencies like NIH have markedly increased their recruitment and hiring of employees under Title 42 in recent years, leaving an entire class of federal workers without whistle-blower protections.

"It's a game of cat and mouse in which the real losers are the American people," Kohn said.

In February a House Commerce subcommittee chairman raised concerns that NIH was inappropriately using Title 42 hires to pad administrators' salaries to as high as $225,000 a year.

The law should be reserved for "limited scientific hires, not an alternative compensation scheme that permits high-level NIH officials to continue exercising broad-based, inherently governmental functions while being paid significantly higher salaries than if they had remained in the federal civil service system," wrote Representative James C. Greenwood, Republican of Pennsylvania, who recently retired.

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