108th Congress

Appropriations for the National Institutes of Health,
Fiscal Year 2005

P.L. 108-447 (H.R. 4818/H. Rept. 108-792)

Background

On December 8, 2004, the President signed into law H.R. 4818, the Consolidated Appropriations, FY 2005 (which took the number for and included the FY 2005 Foreign Operations Appropriations bill). This Omnibus Appropriations bill included funding for the nine appropriations bills that had not been enacted: Agriculture, Commerce-Justice, Energy and Water, Foreign Operations, Interior, Labor-Health and Human Services (HHS)-Education, Legislative Branch, Transportation-Treasury, and Veterans Affairs (VA)-Department of Housing and Urban Development (HUD).

The President’s fiscal year (FY) 2005 budget proposal for the National Institutes of Health (NIH), which was released on February 2, 2004, had requested $28.805 billion for NIH, an increase of $764 million or 2.7 percent over the FY 2004 enacted level. The President’s budget authority request for NIH to the Appropriations Subcommittees on Labor, HHS and Education was $28.527 billion. The budget authority request to the Appropriations Subcommittees on VA, HUD and Independent Agencies was $80.5 million for the National Institute of Environmental Health Sciences (NIEHS) Superfund research program. The NIH program level also included $150 million for the Type I Diabetes Initiative appropriated by P.L. 107-360. Of this program total, $47.4 million was included in the budget authority request for the Public Health and Social Services Emergency Fund for research in radiological and nuclear threat countermeasures.

Provisions of the Legislation/Impact on NIH

The net amount, after the 0.8-percent across-the-board cut, included in the Labor, HHS, and Education portion for NIH for FY 2005 is $28.371 billion, or $571 million over FY 2004, a 2.1-percent increase. NIEHS received $79.842 million from the VA-HUD portion of the bill for Superfund activities. Also included in the Treasury, Transportation, and General Government section was a 3.5-percent cost-of-living pay raise for Federal employees. U.S. Department of Health and Human Services totals will be further reduced since the $18-million cut in administrative costs had not been taken into account. The planning and evaluation tap increased from 2.2 percent in FY 2004 to 2.4 percent in FY 2005.

Legislative History

H.R. 5006
On July 8, the House reported out H.R. 5006, the appropriations bill for the Departments of Labor, HHS, and Education, and related agencies for the fiscal year ending September 30, 2005. The bill provided $28,526,871,000 for NIH, $726,823,000 more than in FY 2004, and was identical to the FY 2005 President’s budget request. The bill was passed by the House on September 9, 2004, by a vote of 388 to 13. During floor debate, Representatives Ernest Istook, Jr. (R-OK) and Ralph Regula (R-OH), Chair of the House Appropriations Subcommittee on Labor, HHS and Education, engaged in a colloquy on the open access report language, in which Dr. Elias Zerhouni, Director of NIH, was praised for his action. There were two floor amendments accepted by voice vote:

• An amendment offered by Representative Scott Garrett (R-NJ), which read: “At the end of the bill (before the short title), insert the following: SEC. __. None of the funds made available in this Act may be used to send or otherwise pay for the attendance of more than 50 Federal employees at any single conference occurring outside the United States.”
• A two-part amendment offered by Representative Randy Neugebauer (R-TX) prohibiting funding of two National Institute of Mental Health grants.

Both amendments were struck from the final bill in conference.

S. 2810
On September 15, the Senate Committee on Appropriations reported out a bill making appropriations for the Departments of Labor, HHS, and Education, and related agencies for the fiscal year ending September 30, 2005. The bill would have provided $28.9 billion for NIH, $1.1 billion more than in FY 2004, an increase of approximately 4 percent. Members of the Senate Appropriations Subcommittee on Labor, HHS and Education were polled on September 9 in lieu of holding a Subcommittee markup, and the bill was never brought to the Senate floor for action.

H.R. 4818
When it became clear that individual appropriations bills would not be passed separately before the 108th Congress adjourned, those bills without enacted appropriations were consolidated using H.R. 4818, the FY 2005 Foreign Operations Appropriations as the appropriations vehicle. The Labor-HHS-Education portion became Division F of the bill. On December 6, the House cleared the conference report for the FY 2005 Consolidated Appropriations Act for Presidential signature. It was held up briefly in order to strike a controversial provision that would have granted the chairs of the House and Senate Committees on Appropriations and their staff “access to Internal Revenue Service facilities and any tax returns or return information.” This omnibus appropriations bill includes funding for the nine appropriations bills that had not been enacted: Agriculture, Commerce-Justice, Energy and Water, Foreign Operations, Interior, Labor-HHS-Education, Legislative Branch, Transportation-Treasury, and VA-HUD.

CONTINUING RESOLUTIONS

Those agencies of the Federal Government without enacted FY 2005 appropriations bills, including NIH, operated under a series of Continuing Resolutions (CRs), the first of which provided funding through November 30, 2004, (P.L. 108-309), followed by a second CR signed on November 21 (P.L. 108-416) that provided funding through December 3. A third CR, H.J. Res. 115, was passed on November 24 and provided funding through December 8. CRs provided funding at the current rate and under the same conditions as FY 2004 funding.

MAJOR FEATURES OF H.R. 4818, CONSOLIDATED APPROPRIATIONS, FY 2005

NIH Funding: The Conference Report increases the budget authority for NIH by $800 million over FY 2004 enacted levels, generally consistent with the amounts in the President’s FY 2005 Budget. The most significant changes are the addition of $30 million in funding for extramural facilities construction through the National Center for Research Resources (NCRR) and $15 million for construction of the John E. Porter Neuroscience Research Center II.

The across-the-board cut of 0.8-percent, which applies to all programs, projects, and activities in the bill, is not reflected in the items below.

Provisions Included in the Bill Language

National Cancer Institute (NCI): Language allows NCI to use up to $8 million for repairs and improvements at NCI-Frederick.

National Institute of Allergy and Infectious Diseases (NIAID): Language authorizes funding for extramural facilities construction grants for biodefense.

NIAID: Language transfers $100 million to the Global Fund to Fight HIV/AIDS, Malaria, and Tuberculosis.

NCRR: Language directs that $30 million be used for extramural facilities construction grants.

National Library of Medicine (NLM): Language dedicates $8.2 million in planning and evaluation funding to support specified NLM activities.

Office of the Director (OD): Language permits use of the flexible research authority for up to $10 million in Roadmap funding in the Director’s Discretionary Fund (DDF).

OD: Provides $500,000 for the NIH Foundation

OD: Provides that a uniform percentage of the amounts appropriated to NIH Institutes and Centers (ICs) may be used for the NIH Roadmap. Specifies the total IC Roadmap contribution at the amount requested in the President’s FY 2005 Budget ($177 million) and indicates that NIH can change this by notifying the subcommittees. The accompanying report language also notes that this amount is in addition to the Roadmap funding in the DDF and “to any amounts allocated to activities related to the Roadmap Initiative through the normal research priority-setting process of individual” ICs.

Buildings and Facilities (B&F): Includes “full-scope” language related to the Porter Neuroscience Research Center. Report language indicates that $14.7 million has been included for the Center.

General Departmental Management: This limits funding for the Office of the Assistant Secretary for Legislation and provides that “specific information requests from the chairmen and ranking members of the [Labor, HHS, and Education Appropriations Subcommittees] on scientific research or any other matter, shall be transmitted to the Committees on Appropriations in a prompt professional manner and within the time frame specified in the request.” It also provides that “scientific information requested by the Committees on Appropriations and prepared by government researchers and scientists shall be transmitted to the Committees on Appropriations, uncensored and without delay.”

Public Health and Social Service Emergency Fund: Language provides $47.4 million for research on radiological and nuclear countermeasures. It also provides $100 million for “activities to ensure a year-round influenza vaccine production capacity; the development and implementation of rapidly expandable influenza production technologies; and if determined necessary by the Secretary, the purchase of influenza vaccine.”

General Provisions

Section 204: It maintains the extramural salary cap at Executive Level 1, as provided in FY 2004. (The President’s Budget proposed Executive Level 2.)

Section 207: Sets the planning and evaluation tap at 2.4 percent. (The President’s Budget proposed 2.3 percent; FY 2004 was 2.2 percent.)

Section 217: Contains identical language as enacted in FY 2004 and requested in the President’s Budget authorizing the flexible research authority

Section 225: “The Center for Biodefense and Emerging Infectious Diseases (Building 33) at the National Institutes of Health is hereby named the C.W. Bill Young Center for Biodefense and Emerging Infectious Diseases.”

Section 517: Places new restrictions on reprogramming authorities and lowers the threshold for notification to changes of $500,000 or 10 percent, whichever is less

Section 519: Reduces on a pro rata basis by $18 million “amounts made available under this Act for the administrative and related expenses for departmental management” for the U.S. Departments of Labor, HHS, and Education

Note: The Conference Report does not include language included in the bill passed by the House pertaining to the attendance of HHS employees at foreign conferences (the Garrett Amendment) or regarding National Institute of Mental Health (NIMH) grants (the Neugebauer Amendment). See the Report Language section below.

Note: The Conference Report does not include appropriations language proposed in the President’s Budget regarding multiyear funding.

Provisions in the Report Language

OD:

Roadmap: The text reads in part: “The conferees have deleted a specific dollar limit on such funding, in order to provide NIH with the flexibility to adjust that amount in response to changing cost estimates and scientific needs.”

Research Project Grants’ Policy: “The conferees concur with the concerns expressed in the Senate report about the disappointing precedent contained in the Administration request that would have used average cost assumptions inconsistent with NIH’s own Cost Management Plan. To the extent that resources allow, the conferees believe that NIH should follow its Cost Management Plan principles, which will help NIH continue to maintain the purchasing power of the research in which it invests.”

Public Access: “The conferees are aware of the draft NIH policy on increasing public access to NIH-funded research. Under this policy, NIH would request investigators to voluntarily submit electronically the final, peer reviewed author's copy of their scientific manuscripts; six months after the publisher's date of publication, NIH would make this copy publicly available through PubMed Central. The policy is intended to help ensure the permanent preservation of NIH-funded research and make it more readily accessible to scientists, physicians, and the public. The conferees note that the comment period for the draft policy ended November 16th; NIH is directed to give full and fair consideration to all comments before publishing its final policy. The conferees request NIH to provide the estimated costs of implementing this policy each year in its annual Justification of Estimates to the House and Senate Appropriations Committees. In addition, the conferees direct NIH to work with the publishers of scientific journals to maintain the integrity of the peer review system.”

Representative Early: “The conferees wish to recognize and honor former Congressman Joseph Daniel Early for his contribution to the National Institutes of Health. Mr. Early served in Congress from 1975 to 1993, and served on the House Labor, Health, and Human Services Appropriations Subcommittee. During his time on the subcommittee, he tirelessly advocated on behalf of the NIH, and the importance of medical research. Even before this Subcommittee undertook bold efforts such as the recent doubling of NIH funding, Mr. Early was on the forefront of recognizing the critical role of the Federal Government in supporting medical research, and the significance of the work of the NIH. His efforts have undoubtedly improved the health of many Americans. The conferees strongly urge the NIH to honor Mr. Early’s contribution to the NIH by designating one of the two outdoor courtyards in the Mark O. Hatfield Clinical Research Center as the ‘Joseph D. Early Plaza’ (or ‘Courtyard’). The conferees hope that such a space will include a stone marker, plaque, or sculpture that would prominently pay tribute to Mr. Early’s contributions to the NIH.”

Title II General Provisions

Cancer Hospital Construction Loans: “The conference agreement does not include a general provision proposed by both the House and Senate that rescinded funds appropriated by section 1897(g) of the Social Security Act.” Therefore, the Health Care Infrastructure Improvement Program, section 1016 of the Medicare Modernization Act (MMA), P.L. 108-173, will need to be implemented. This program would provide $190 million over 5 years to NCI-designated cancer centers and the designated cancer center of a State. The loan program would provide funds for projects designed to improve the health care infrastructure of the hospital. The MMA called for funds to be available as of July 1, 2004, but this was held up due to appropriations language that would have rescinded the funds.

Before the first appropriations action, which proposed rescinding the funding, NCI was in the process of drafting a Memorandum of Understanding (MOU) with HRSA, outlining the plan for HRSA to administer the loan program. A program announcement would have followed soon after the MOU was in place.

Title V General Provisions

Foreign Conferences: “The conference agreement does not include a general provision as proposed by the House pertaining to the attendance of HHS employees at foreign conferences. The Senate bill did not contain a similar provision. The conferees are pleased that in the current constrained fiscal environment, the Secretary of HHS has taken steps to monitor and limit travel by HHS agency employees to international conferences. The Secretary should, however, ensure that all necessary U.S. scientists are permitted to attend important international scientific meetings to present their research findings and to learn about research being conducted in other countries.” (Garrett Amendment)

NIMH Grants: “The conference agreement does not include a general provision as proposed by the House regarding NIMH grants. The Senate bill did not contain a similar provision. The conferees reiterate their support of the two-tiered peer review process used by NIH to judge research grant applications and continue to expect NIH to ensure that its funds are allocated to research that is both scientifically meritorious and has high potential public health impact.” (Neugebauer Amendment)

OVERVIEW HEARINGS FOR FY 2005

The Senate Appropriations Subcommittee on Labor, HHS and Education, chaired by Senator Arlen Specter (R-PA), held the NIH overview hearing on April 1, 2004. The Senate hearing offered NIH the opportunity to describe its research successes and acknowledge that worthy research would be possible if the $1.3 billion increase Senator Specter included in the Senate Budget Resolution is agreed to by conferees. There was also a lengthy exchange about human embryonic stem cells and whether the President’s stem cell policy should be reevaluated.

The House Appropriations Subcommittee on Labor, HHS and Education, chaired by Representative Regula, held two overview hearings on April 21 and 22. The topic of the April 21 hearing was “Science Advances, NIH Roadmap, and the FY 2005 Budget.” The topic of the April 22 hearing was NIH management of NIH and the science it supports. A series of theme hearings on specific topics was also held:

• On March 17, Dr. Richard Hodes, Director of the National Institute on Aging, testified on senior programs, along with Josefina G. Carbonell, Assistant Secretary for the Administration on Aging; David Dye, Deputy Assistant Secretary for Employment and Training, Community Service Employment for Older Americans; and David Eisner, CEO, Corporation for National and Community Service, a related agency.
• On March 25, Dr. Reid Lyon of the National Institute of Child Health and Human Development and Dr. Wade Horn of the Administration for Children and Families testified with the Department of Education on research and education services and on early childhood research and plans for the Head Start program.
• On April 28, Dr. Anthony S. Fauci, Director of NIAID, and Dr. Julie Gerberding of the Centers for Disease Control and Prevention testified on global disease threats.
• On April 29, Dr. Thomas Insel, Director of NIMH; Dr. Ting-Kai Li, Director of the National Institute on Alcohol Abuse and Alcoholism; Dr. Nora Volkow, Director of the National Institute on Drug Abuse; Dr. Charles G. Curie, Administrator of the Substance Abuse and Mental Health Services Administration; and Dr. Deborah A. Price, Director of the Office of Safe and Drug-Free Schools, Department of Education, testified on substance abuse and mental health.

COMPARISON OF MAJOR FEATURES OF THE FY 2005 HOUSE AND SENATE APPROPRIATIONS MEASURES