110th Congress

FY 2009 Labor, Health and Human Services, Education, and Related Agencies Appropriations

Background

FY 2009 PRESIDENT’S BUDGET

On February 4, 2008, the fiscal year (FY) 2009 President’s budget request was rolled out, including an FY 2009 Discretionary Budget Authority request for the National Institutes of Health (NIH) of $29.230 million, equal to the FY 2008 appropriation.  The total NIH budget authority with the Type I Diabetes Initiative for FY 2009 is $29.380 million, which is the same as the FY 2008 budget.  It would have provided a total program level in FY 2009 of $29.465 million, the same as the FY 2008 enacted level.  The FY 2009 request would have maintained the AIDS research program at the FY 2008 level of $2.913 million.  In addition, NIH would be required to transfer $300 million to the Global Fund to Fight HIV/AIDS, Tuberculosis and Malaria.  The three strategic priorities identified in the NIH budget were Support New Investigators, NIH Director’s Bridge Award, and the NIH Common Fund.  The budget, as proposed would support more than 9,700 new research project grants (RPGs), continue the NIH Director’s Bridge Award, support the Pathway to Independence Awards, and provide a modest 1-percent stipend increase for predoctoral and postdoctoral Ruth L. Kirschstein National Research Service Award awardees.  This budget would have eliminated inflationary increases for RPGs, and the average cost of competing RPGs would have remained at the FY 2008 level.  No funds would have been provided for the National Children’s Health Study.

FY 2008 SUPPLEMENTAL

On June 30, 2008, the President signed into law H.R. 2642, the Supplemental Appropriations Act, 2008 as P.L. 110-252, which included among many items, $150 million for NIH.  At one point, this bill, which came from the Senate, included $400 million for NIH, but the amount was reduced as the bill passed through the House.  The law provides direction for the expenditure of this 1-year funding, as follows:  “For an additional amount for ‘Office of the Director,’ $150,000,000, which shall be transferred to the Institutes and Centers of the National Institutes of Health and to the Common Fund established under section 402A(c)(1) of the Public Health Service Act in proportion to the appropriations otherwise made to such Institutes, Centers, and Common Fund for Fiscal Year 2008:  Provided, That these funds shall be used to support additional scientific research and shall be merged with and be available for the same purposes and for the same time period as the appropriation or fund to which transferred:  Provided further, That this transfer authority is in addition to any other transfer authority available to the National Institutes of Health:  Provided further, That none of these funds may be transferred to ‘National Institutes of Health-Buildings and Facilities,’ the Center for Scientific Review, the Center for Information Technology, the Clinical Center, the Global Fund for HIV/AIDS, Tuberculosis and Malaria, or the Office of the Director (except for the transfer to the Common Fund).”

Provisions of the Legislation/Impact on NIH

On September 30, 2008, the President signed into law H.R. 2638 as P.L.110-329, the Consolidated Security, Disaster Assistance and Continuing Appropriations Act, the FY 2009 stopgap continuing resolution to fund most of the Government until March 6, 2009.  For NIH, this continuing resolution provides funding at the same rate and under the same terms and conditions as those provided by P.L. 110-161, the Consolidated Appropriations Act, 2008, not including the $150 million from the FY 2008 supplemental.  H.R. 2638 was passed by the House by a vote of 370 to 58 on September 24 and was passed by the Senate by a vote of 78 to 12 on September 25.  This Act provides funding to NIH at the annualized rate of $29,012,308,869.  (This figure is $150 million less than the FY 2008 operating amount of $29,162,308,869, as it does not include the additional amount provided to NIH in the FY 2008 supplemental.)  This continuing resolution also includes emergency spending for disaster relief; funding for automakers to retool to produce advanced technology, energy-efficient vehicles; and three regular FY 2009 appropriations bills, Defense, Military Construction-VA, and Homeland Security.

STIMULUS

Just before the House and Senate adjourned for the November elections, including the Presidential election, there was an attempt to pass an economic stimulus package.  In the Senate, the bill, which would have provided an increase of $1.2 billion to NIH, fell on a cloture motion to proceed.  A House stimulus package passed but was not taken up by the Senate.  (The House measure did not include any additional funding for NIH.)  The Speaker of the House, Nancy Pelosi (D-CA), has indicated that after the elections, the House may convene to consider a new stimulus package.

FY 2009 APPROPRIATIONS ACTION

Neither the House nor Senate completed action on the FY 2009 Labor, Health and Human Services (HHS), Education, and Related Agencies appropriations bill due to several factors, the most significant of which was the tension between the chairs of the appropriations committees and the White House on the “acceptable levels” that would not generate a veto by the President.  The President made it clear that any appropriations bills that exceeded the level specified in the FY 2009 President’s budget request would be vetoed, with no room for negotiation.

Nevertheless, both the House and Senate appropriations subcommittees marked up bills.  The full House Committee on Appropriations met to mark up the bill, but because Republican Members attempting to force a vote on offshore drilling vacated the Labor, HHS, Education, and Related Agencies bill and substituted the Interior, Environment, and Related Agencies appropriations bill in its place, Representative Obey adjourned the meeting.  Neither bill was reported out of the Committee in the 110th Congress, and no further action occurred.  

House Action

The Labor, HHS, Education, and Related Agencies appropriations bill reported out of the House subcommittee would have provided an appropriation for NIH of $30,379,524,000, a $1.150-billion increase, or 3.9 percent over FY 2008.  (The FY 2009 discretionary budget authority request for NIH was $29.230 million, equal to the FY 2008 appropriation before the $150 million add-on from the supplemental.)  In addition, the bill would have provided legislative language to continue the National Children’s Study in the amount of $192.300 million; provided increased funding for NIH’s infrastructure in the amount of $6.615 million; provided a 1-percent increase for research training stipends and a 2-percent increase for new and competing grants; fully funded the $300 million for the Global Fund to Fight AIDS, Tuberculosis and Malaria; bill language to provide $544.146 million for the Common Fund; and would have made permanent the mandatory public access policy.  There was also strong conflict-of-interest report language regarding extramural investigators, which “instructs the Director of NIH to develop a policy for extramural grantees, including both institution administrators and scientists.”

Senate Action

The Senate Committee on Appropriations reported out the FY 2009 Labor, HHS, Education and Related Agencies appropriations bill, which would have included an overall NIH funding increase of $1,025,000,000, for a total of $30,254,524,000.  That amount would have allowed NIH funding to keep pace with the biomedical inflation rate (3.5 percent) for the first time in 6 years.  It would have also increased the estimated number of new competing RPGs to 10,471, the highest number to date at NIH.  The Committee-reported level included $192.300 million, an increase of $81.400 million over the FY 2008 appropriation of $110.900 million, for the National Children’s Study; it also would have fully funded the budget request of $300 million for transfer to the Global Fund to Fight AIDS, Tuberculosis and Malaria and provided $568.119 million for the Common Fund.  The FY 2008 level was $495.608 million, and the budget request was $533.877 million.  Conflict of interest was also mentioned in the Senate report language.  The concern was similar to that expressed by the House, in that the focus was NIH funding awarded extramurally to non-Federal employees and institutions.  The Committee said, “Troubling allegations that some NIH-funded investigators have flaunted their universities’ conflict-of-interest rules have recently come to light, and it seems clear that the NIH currently has no ability to monitor or prevent such abuses.  Moreover, up to this point the NIH leadership has not demonstrated much interest in dealing with the issue.  That must change.  The Committee believes that the Director has no higher priority in the coming year than to address this situation and fix it.”  The Senate bill included language from previous years stating, “The Committee directs that specific information requests from the chairman and ranking member of the Subcommittee on Labor, Health and Human Services, and Education, and Related Agencies, on scientific research or any other matter, shall be transmitted to the Committee on Appropriations in a prompt professional manner and within the timeframe specified in the request.  The Committee further directs that scientific information requested by the Committees on Appropriations and prepared by Government researchers and scientists be transmitted to the Committee on Appropriations, uncensored and without delay.”

During the Senate markup, the following language from Senator Charles E. Grassley (R-IA) was included in the bill:  “Sec. 224. Within 6 months of passage of this Act, the Secretary of the Department of Health and Human Services shall issue an Advanced Notice of Proposed Rulemaking to solicit public comment in advance of modifying regulations at 42 CFR Part 50 Subpart F for the purpose of strengthening Federal oversight and identifying enhancements of policies, including requirements for financial disclosure to institutions, governing financial conflicts of interest among extramural investigators receiving grant support from the National Institutes of Health.”  There was no further action on the Senate bill.

Status and Outlook

When the 111th Congress convenes in 2009, it will need to complete action for FY 2009 funding.  The continuing resolution extends through March 6, 2009, but will require an extension or other action.  Presumably the November 2008 elections will have a significant impact on the final action taken.  The Senate Majority Leader, Harry Reid (D-NV), announced before adjournment that Senators should expect to return to the Senate the week of November 17 for additional Senate business.  The House has signaled that it also may be in session.

October 2008