108th Congress

Appropriations for the National Institutes of Health, Fiscal Year 2003

P.L. 108-7 (H.R. 5320 [no House Report was filed], S. 2766/S. Rept. 107-216, H.R. 246 [no House Report was filed], and H. Rept. 108-10)

Background

On February 20, the President signed into law H.J. Res. 2, the Consolidated Appropriations Resolution, 2003, as P.L. 108-7. This legislation provides funding for fiscal year (FY) 2003 for the 11 appropriations bills that had not yet been enacted. The bill provides $27.2 billion for the National Institutes of Health (NIH), a $3.8 billion increase over FY 2002, and completes the doubling of the NIH budget over 5 years.

A number of continuing resolutions were enacted to keep Federal agencies, including NIH, operating until final appropriations legislation was signed.

(1) Continuing Resolution (through 10/4/02) P.L. 107-229 9/30/02
(2) Continuing Resolution (through 10/11/02) P.L. 107-235 10/4/02
(3) Continuing Resolution (through 10/18/02) P.L. 107-240 10/11/02
(4) Continuing Resolution (through 11/22/02) P.L. 107-244 10/18/02
(5) Continuing Resolution (through 1/11/03) P.L. 107-294 11/23/02
(6) Continuing Resolution (through 1/31/03) P.L. 108-2 1/10/03
(7) Continuing Resolution (through 2/7/03) P.L. 108-4 1/31/03
(8) Continuing Resolution (through 2/20/03) P.L. 108-5 2/7/03

Provisions of the Legislation/Impact on NIH

The bill continues provisions from previous years, including the extramural salary cap, transfer authority for the Director of NIH, AIDS transfer authorities, the Secretary's transfer authority, antilobbying with Federal funding, notices on press releases, and the human embryo research prohibition. It also includes new language that permits NIH to award more than 10 Morris K. Udall Centers (the current language limited the number of these centers to 10) and provides for a 4.1 percent pay raise for Federal employees. The bill also includes earmarks for NIH for the National Center for Research Resources' (NCRR) extramural construction, General Clinical Research Centers, and the Institutional Development Award (IDeA) program.

Legislative History

On July 18, 2002, the Senate Appropriations Subcommittee on Labor, Health and Human Services (HHS) and Education reported out S. 2776, appropriations for the U.S. Departments of Labor, Health and Human Services, and Education for the fiscal year ending September 30, 2003. The bill included a total of $27,192,926,000 for NIH. This represented an increase of $3,737,083,000 over the FY 2002 level and $25,000,000 over the President's budget request, or a 15.9 percent increase. This appropriation would have completed the 5-year effort to double the funding for NIH. However, the bill was not brought to the Senate floor for a vote before the 107th Congress adjourned.

The House Appropriations Subcommittee on Labor, HHS and Education never reported a bill. In September 2002, Representative C.W. "Bill" Young (R-FL) introduced H.R. 5320, a bill for the U.S. Departments of Labor, HHS, and Education, which was the President's Budget as sent to Congress in February 2002. It was aimed at providing a vehicle for negotiation on a House bill, but that did not occur. Differences between the House leadership, the Appropriations committees, and the Administration stalled any appropriations action in the House. As a result, only 2 of the 13 regular FY 2003 appropriations bills were enacted in the 107th Congress, and the bill that would have funded NIH, the Labor, HHS, and Education Appropriations bill, remained in limbo. NIH was provided with funding for FY 2003 through a series of continuing resolutions, which extended funding into the 108th Congress.

At the beginning of the 108th Congress, H.J. Res. 2 was introduced in the House. It was to be the legislative vehicle to hold the 11 appropriations bills not yet enacted. The version of H.J. Res. 2 passed by the House contained no funding levels for the Labor, HHS, and Education agencies. Instead, H.R. 246 was introduced by Representative Ralph Regula (R-OH), Chair, House Appropriations Subcommittee on Labor, HHS and Education, as a placeholder for later conference discussion; it included $26.481 billion for NIH. H.R. 246 served as the House bill for Labor, HHS, and Education for purposes of conference with the Senate on H.J. Res. 2, which incorporated the Senate-reported bill S. 2766. H.J. Res. 2 passed the House on January 8, 2003, and the Senate on January 23.

On February 13, 2003, both the House and Senate approved H.J. Res. 2, the Consolidated Appropriations Resolution, 2003. The House vote was 338 to 83; the Senate vote was 76 to 20. The President signed the measure on February 20.

P.L. 108-7

The public law contains 15 divisions; Division G contains the Labor, HHS and Education appropriation. Other divisions affecting NIH are noted by their division designation.

BILL LANGUAGE

Division G—Labor, HHS and Education, 2003:
National Institutes of Health and Department of Health and Human Services

National Institute of Allergy and Infectious Diseases (NIAID): "$100,000,000 may be made available to International Assistance Programs, ‘Global Fund to Fight HIV/AIDS, Malaria, and Tuberculosis,' to remain available until expended: Provided further, that up to $375,000,000 shall be for extramural facilities construction grants to enhance the Nation's capability to do research on biological and other agents."

NCRR: Prohibits use of funds to pay recipients of the general research support grants program any amount for indirect expenses in connection with such grants; provides $120,000,000 for extramural facilities construction grants

National Library of Medicine (NLM): Permits NLM to enter into personal services contracts for the provision of services in facilities owned, operated, or constructed under the jurisdiction of NIH; provides $8,200,000 from evaluation funds provided for the National Information Center on Health Services Research and Health Care Technology and related health services

Office of the Director (OD):

• Vehicles: Funding provided for the replacement of 29 passenger motor vehicles
• Transfer Authority: Continuation of the Director's 1 percent transfer authority, such that no such appropriation shall be decreased by more than 1 percent by any such transfers
• Third-Party Payments: Continuation of NIH authority to collect third-party payments for the cost of clinical services incurred at NIH research facilities and such payments to be credited to the NIH Management Fund to remain available for 1 fiscal year after the fiscal year in which they are deposited
• Foundation: Provides that up to $500,000 shall be available

Buildings and Facilities (B&F): "Full scope of the project may be employed for the development and construction of the first and second phases of the John Edward Porter Neuroscience Research Center, subject to ‘availability of funds.'"

GENERAL PROVISIONS

Salary Cap: Retains Executive Level I Salary Cap as in FY 2002

Evaluation Set-Aside: Allows for a 2.1 percent evaluation tap. The conferees identified a total of $680 million for evaluation, $330 million more than the President's FY 2003 request. NIH is the source of $489.2 million of these funds, an increased assessment of nearly $221 million from the President's budget level.

Secretary's Transfer: "The Secretary may transfer not more than 1 percent between appropriations, and no such appropriation can be increased by more than 3 percent by any such transfer. With House and Senate approval, an appropriation can increase by an additional 2 percent."

AIDS Transfer Authority: The Directors of NIH and the Office of AIDS Research retain the authority to transfer up to 3 percent between Institutes and Centers (ICs) for AIDS research.

Parkinson's Disease Research Centers: Overrides the Public Health Service Act limit on the number of Parkinson's disease research centers that may be supported by NIH

Antilobbying: Continues the prohibition on the use of Federal funds for any activities designed to support or defeat legislation pending before Congress or any State legislature. Funds cannot be used for the salary or expenses of any grant or contract recipient related to any activity designed to influence legislation.

Press Releases: Continues the requirement of the acknowledgment of Federal money by recipients of Federal research grants in any press

Human Embryo Research Prohibition: Retains identical human embryo language from the FY 2002 Labor, HHS, and Education Appropriations bill

OTHER DIVISIONS

Division J—Treasury and General Government Appropriations, 2003:

Pay Raise: Provides for a 4.1 percent increase in the adjustment in the rates of basic pay for the statutory pay systems that takes effect in FY 2003 and shall be effective as of the first day of the first applicable pay period beginning on or after January 1, 2003. Funds to carry out this requirement will be paid from each applicable department for salaries and expenses for FY 2003.

Prohibition of Hiring Noncitizens: Maintains the existing prohibition that bars the Federal Government, with certain specified exceptions, from employing non-U.S. citizens whose posts of duty would be in the continental United States

Prohibition of Contributing to Commissions, Councils, Committees, or Similar Groups: Prohibits interagency financing of commissions, councils, committees, or similar groups without prior statutory approval. Before FY 1999, there was an exception provided for the National Bioethics Advisory Commission.

Adjustment in Salaries for Prevailing Rate Employees: Ensures that increases to the Federal Wage System Pay Schedules in FY 2003 do not occur at a faster pace or higher rate than increases to the General Schedule. Because the methods used to determine the yearly increase for Federal Wage Grade and General Schedule employees are based on different factors, this provision ensures equity between the two pay systems.

Schedule C Appointees and White House Details: Prohibits agencies from hiring anyone under a Schedule C appointment mechanism without certifying that the Schedule C position was not created solely or primarily to detail the employee to the White House

Communication With Congress: Prohibits Federal employees from forbidding other Federal employees from testifying before or communicating with Congress. It also bars Federal employees from taking disciplinary or personnel action against other Federal employees who testify before or communicate with Congress.

Federal Government Antilobbying Provision: Maintains the prohibition on the use of appropriated funds for the purpose of providing information to support or defeat legislation pending before Congress

Breastfeeding in Government Buildings: Permits women to breastfeed at any location in a Federal building or on Federal property

Prohibition of Federal Agency Monitoring of Personal Information on the Use of the Internet: Prohibits the use of funds to monitor personal information relating to the use of Federal Internet sites in order to collect, review, or create any aggregate list that includes personally identifiable information relating to access to or use of any Internet site of a Federal agency

Contracting-Out Methodology: Bars Federal agencies from using numerical goals, targets, or quotas when determining how many Federal positions should be cost-compared with the private sector in an effort to determine who can do the job more cheaply and should, therefore, get the job. This provision was created in response to an Office of Management and Budget (OMB) directive requiring agencies to conduct cost comparisons, based on OMB Circular A-76, of their "commercial inventory" and cost-compare 5 percent of their positions by 2002, 10 percent in 2003, and 10 to 15 percent in 2004.

Division K—Veterans Affairs and Housing and Urban Development, and Independent Agencies, 2003:

National Institute of Environmental Health Sciences (NIEHS): Provides $84.074 million to support Superfund activities. Of the appropriated amount, $48,936,000 is for research and $27,138,000 is for worker training activities. The conferees have also provided $8,000,000, split equally between research and worker training, for NIEHS activities related to the terrorist attacks of September 11, 2001, which had been appropriated in a Supplemental Appropriations Act but not requested by the Administration as a contingent emergency.

Prosthetic Research: "For necessary expenses in carrying out programs of medical and prosthetic research and development as authorized by 38 USC Chapter 73, to remain available until September 30, 2004, $405,000,000, plus reimbursements: provided, that of the funds available under this heading, $5,000,000 shall be transferred to medical care for research oversight activities."

Offsets (Title VI): "The conference agreement includes a 0.65 percent across-the-board rescission to discretionary budgetary resources provided in divisions A through K of this Act, as well as to any previously enacted FY 2003 advance appropriation. This rescission does not apply to the Head Start program; the Veterans' Medical Care program; the Women, Infants, and Children nutrition program; or the space shuttle program. Specific exemptions for these programs are also included in the respective sections of this joint resolution."

REPORT LANGUAGE

Report Language Accompanying Division G

NIH Provisions

• NIH was provided with $27.2 billion, an increase of $3.8 billion over FY 2002.
• Six points in the explanatory statement of the Managers:
• Any reports required by the Senate Report can be submitted up to 90 days beyond the due date.
• Departments are directed to submit written requests for reprogramming (for funds in excess of 10 percent or $500,000, whichever is less), and a reprogramming request is required if agency actions would also affect its future year requirements or if its actions initiate a new program.
• NIH received an exception, consistent with Senate language, which provides a $1.0 million threshold for reprogramming requests.
• Committees are to be notified prior to the reorganization of offices, programs, or activities.
• Each Department is to institute a tracking system for Congressional Appropriations Committee Reports (CACRs).
• Effect statements are to be submitted within 60 days of enactment.
• National Cancer Institute: Urged to consider creating multi-institutional, multidisciplinary lung cancer consortia
• National Heart, Lung, and Blood Institute: Encouraged, in collaboration with the National Institute of Neurological Disorders and Stroke (NINDS) to develop a diagnostic test for transmissible spongiform encephalopathies (TSE) that would be suitable for screening the blood supply; urged to stimulate a broad range of clinical and basic research on lymphangioleiomyomatosis (LAM)
• National Institute of Diabetes and Digestive and Kidney Diseases: Encouraged to launch new training initiatives in nephrology
• NINDS: Encouraged to support research on neutralizing antibodies as therapies for multiple sclerosis (MS) and to conduct a scientific workshop on neutralizing antibodies in MS therapy
• NIAID: Bill language permits the transfer of $100,000,000 to International Assistance Programs, Global Fund to Fight HIV/AIDS, Malaria, and Tuberculosis; bill language allocates up to $375,000,000 for extramural facilities construction grants for research on biological and other agents
• National Institute of Child Health and Human Development: Urged to support research using approved stem cell lines that investigates adult and embryonic stem cells in vitro and in nonhuman primates; encouraged to support a prosthetic outcomes research consensus conference to develop a research protocol
• National Eye Institute: Directed to be prepared to report on advances in research on ocular albinism
• NIEHS: Urged to establish a group of breast cancer and environmental research advisers to make recommendations to the Director that includes representatives from the breast cancer community; encouraged to consider establishing centers to conduct multidisciplinary and multi-institutional research on environmental factors that may be related to breast cancer
• National Institute of Arthritis and Musculoskeletal and Skin Diseases: Urged to enhance research to identify the causes of vitiligo and develop pediatric treatment options for this disease
• National Institute on Drug Abuse: Encouraged to continue support for Office of National Drug Control Policy Counterdrug Technology Assessment Center research centers
• National Institute of Mental Health: Urged to conduct studies on the effects of disasters to understand the degree of mental trauma suffered and how post-traumatic stress affects different populations
• NCRR: Earmarks of $312,000,000 for the General Clinical Research Centers and $210,000,000 for the IDeA program, of which $127,000,000 is for the Centers of Biomedical Research Excellence program and $83,000,000 is designated for the Biomedical Research Infrastructure Networks program
• National Center for Complementary and Alternative Medicine: Includes sufficient funds to increase support for the chiropractic research center
• NLM: In addition to the appropriation, a $8,200,000 evaluation set-aside to NLM to carry out the National Information Center on Health Services Research and Health Care Technology
• OD: $20,000,000 for the Director's Discretionary Fund for allocation to the ICs to begin "roadmap" activities; reflects the funding and grant transfers that will be made to the National Institute of Biomedical Imaging and Bioengineering from other ICs; encourages NIH to increase the research training stipend awards by 10 percent; disapproves a budget request to use NIH funding to support Department of Defense free electron laser research and radiation exposure research; requests the Director of NIH to provide a report by June 30, 2003, to the Committees on Appropriations with details of the new NLM facility, timetables, and costs; requests that the NIH Interagency Autism Coordinating Committee convene a panel to assess the field of autism research, identify the roadblocks, make recommendations, and provide a report to Congress on the state of autism research; the National Institute on Aging (NIA) and NINDS are encouraged to support research on frontotemporal dementias, including Pick's disease; conferees encourage NICHD, NINDS, the National Institute on Deafness and Other Communication Disorders (NIDCD), and the National Institute of General Medical Sciences (NIGMS) to work in collaboration to maximize the outcomes from investments made in Rett syndrome research; the Department of Health and Human Services (DHHS) has conducted a comprehensive review of research on ephedra—following the publication of this work, it is recommended that NIH initiate the scientific studies necessary to resolve any remaining questions on the safety and benefits of these products; NIH is to report by June 30, 2003, summarizing, by grant and amount, actual FY 2002 research funding on temporomandibular disorder, as well as an estimate of FY 2003 expenditures; and NIH should continue to allocate funds for biomedical research on the basis of scientific opportunity, taking into consideration the many other factors identified by NIH as being relevant to funding decisions, such as the infectious nature of a disease, the number of cases and deaths associated with a disease, the cost of disease treatment, and/or other costs associated with a disease. (Explanatory statements are intended only to express relative priority and are not funding earmarks.)
• B&F: Full-scope authority for the contracting of construction of the first and second phases of the John E. Porter Neurosciences Building; $105,000,000 for the NIH research building to be constructed on Department of Army land at Ft. Detrick, MD; NIH is urged to honor Florence S. Mahoney by designating one of two outdoor courtyards in the Mark O. Hatfield Clinical Research Center, now under construction, as the "Florence S. Mahoney Plaza (or Courtyard)" with a stone marker, plaque, or sculpture.

OTHER DIVISION G REPORT LANGUAGE

• Centers for Disease Control and Prevention (CDC): Urged to expand support for the National Prion Disease Pathology Surveillance Center to establish a national autopsy network for prion disease surveillance
• CDC: Encouraged to establish a national registry for chronic fatigue syndrome (CFS)
• Office of the Secretary (OS):
• Conferees have not approved the proposed consolidation of all public affairs and legislative affairs funds and functions in the OS. As a result, the conference agreement includes neither the $27,793,000 requested to transfer staff from the operating divisions to the OS nor the proposed bill language to transfer funds from accounts of NIH and the Agency for Healthcare Research and Quality (AHRQ) for the purpose of consolidating all DHHS legislative and public affairs activities within the OS.
• Conferees direct that responses to specific information requests from the chairman and ranking member of the Subcommittees on Labor, Health and Human Services and Education, and Related Agencies on scientific research or any other matter shall be transmitted to the Committees on Appropriations in a prompt, professional manner and within the timeframe specified in the request. The conferees further direct that scientific information requested by the Committees on Appropriations and prepared by government researchers and scientists be transmitted to the Committees on Appropriations, uncensored and without delay.
• Encouraged the Secretary to establish a Federal working group on lupus to be comprised of representatives from all relevant DHHS agencies and other Federal departments having an interest in lupus. The working group should meet periodically for the purpose of exchanging information and coordinating Federal efforts regarding lupus research and education initiatives.
• Urged the Secretary, through relevant agencies such as NIMH, the Substance Abuse and Mental Health Services Administration, and AHRQ, to study the delivery of psychosocial services to cancer patients and report on the availability, accessibility, use, reimbursement, and effectiveness of specific interventions
• Encouraged the Secretary, in conjunction with CDC and relevant NIH Institutes, to assess the benefits of a system providing nationwide access for physicians to a multimedia Internet site with webcast and media response capability. This type of system would allow the Nation's primary care providers to receive Federal news and alerts.
• Encouraged DHHS to give priority to the study of plants as vehicles for the production of vaccines
• Department of Education, National Institute on Disability and Rehabilitation Research (NIDRR): Commended for recognizing that CFS is an unmet area of research and funding a CFS research study. The conferees encourage NIDRR to continue to pursue CFS-related research proposals through its investigator-initiated and other grants programs.