October 2008 Legislative And Policy Update
Washington DC
Congress left Washington on October 3 after the House passed a $700 billion bailout/rescue bill that is intended to calm and stabilize the financial markets and steady the economy. The remaining House schedule is unclear. The House adjourned subject to the call of the Chair. It is unclear whether the House and Senate will convene for a lame-duck session after the November 4 election.
Senate Majority Leader Harry Reid (D-NV) has scheduled a lame-duck session beginning November 17 when Senators will be in Washington to elect their leaders for the 111th Congress. The purpose of the post-election session is to consider a package of 150 bills that have been blocked by Senator Tom Coburn (R-OK), who has placed holds on the bills for a variety of reasons. Speaker Nancy Pelosi (D-CA) stated that the House may return to take up a $150 billion economic stimulus package. This would be the second stimulus package of the year.
1. Appropriations and Budget: FY2009
According to a report by the American Association for the Advancement of Science (AAAS), the federal government begins FY2009 with an R&D portfolio of $147.2 billion, up overall $2.9 billion or 2.0 percent. However, nearly the entire increase would be directed to defense development. This is because the Continuing Resolution enacted in September includes FY09 appropriations for the Departments of Defense, Homeland Security and Military Construction/VA only. Appropriations for the departments and agencies in the remaining nine appropriations bills were not completed and are funded temporarily (through March 6, 2009) at or below FY2008 levels.
Financial rescue legislation with tax extenders
The House overwhelming defeated the first version the financial rescue legislation but passed a revised version (H.R. 3997) approved by the Senate. The Senate package contained several modifications to the original bill as well as the Senate-passed tax bill (H.R. 6049) with tax extenders supported by the higher education community. These include a two-year extension of the above-the-line deduction for qualified tuition and related expenses; the IRA charitable rollovers; and the R&D tax credit. It also includes a one-year "patch" to the alternative minimum tax (ATM), an energy tax package with offsets, disaster tax breaks, and mental health parity legislation.
2. Intellectual Property: Orphan works
House and Senate committee staff members were unable to reach agreement on an orphan works bill (S. 2913, H.R. 5889) delaying consideration of the legislation to next year and a new Congress. S. 2913 was passed by the Senate in September and was supported strongly by universities, libraries, museums, publishers, and other interested parties, including the U. S. Copyright Office. The Senate legislation did not include language on state sovereign immunity that posed problems for state entities, including public universities. Provisions governing qualifying searches had been modified by replacing requirements that were excessively burdensome with a search process that provided an effective balance between the interests of users and owners of copyrighted works. It is expected that supporters will reintroduce the Senate bill in the next Congress
3. NASA: Reauthorization
At the end of September the House unanimously approved the NASA Reauthorization bill, H.R. 6063, and sent it to the White House for President Bush's signature. The legislation authorizes the agency to fly two additional Shuttle missions to service the International Space Station (ISS) and a third flight to launch a Department of Energy (DOE) experiment to study charged particles in cosmic rays. Although the legislation provides legal authority for NASA to conduct the additional Shuttle flights, it provides no actual funding for the activity. Appropriators make the decision about whether to provide the dollars necessary. The bill is expected to be signed into law by President Bush.
In related news, the Continuing Resolution (CR) passed by Congress on September 27 includes language that would allow NASA to continue to pay Russia to utilize the Soyuz spacecraft to service the ISS through 2016. Currently, the agency has a waiver only through 2011 which allows NASA to bypass the Iran Nonproliferation Act, legislation that restricts US government payments to Russia because of its sale of nuclear material to Iran.
Hubble repair delays Ares 1-X
NASA's postponement of the Hubble Space Telescope servicing mission until February at the earliest will delay the first test flight of the space agency's new astronaut launching rocket. NASA had been targeting a late spring launch of Ares 1-X, an early prototype of the Ares 1 crew launch vehicle the agency intends to field in 2015. Before NASA can move ahead the agency needs to make permanent modifications to a space shuttle launch pad that must remain unchanged until after the Hubble repair mission. Meanwhile, Ares 1-X flight hardware is beginning to be shipped from various points around the U.S. NASA's Glenn Research Center has finished construction of an Ares 1-X dummy upper stage and plans to ship that hardware out before the end of October to Kennedy Space Center.
4. National Institutes of Health: Grant funding under FY09 continuing resolution
The National Institutes of Health (NIH) released its policy for funding non-competing grant awards (continuing grants) under the FY09 Continuing Resolution (CR). Until the final FY09 appropriation is enacted the agency will issue non-competing awards at "generally, up to 90 percent of the previously committed level." For additional details go to: http://grants1.nih.gov/grants/financial/index.htm.
Amended grant applications, change in policy
The agency announced a change in policy on the submission of amended grant applications. Beginning in January 2009, researchers only will be able to submit one amended or revised version of their original applications. The change is designed to reduce the number of resubmissions and raises the likelihood that the best research will receive funding more quickly. The change is in response to an advisory panel that identified problems in peer review earlier this year.
Public access policy
NIH has released its analysis of the public comments it received on the implementation of its new mandatory Public Access Policy. The report states that while many of the 613 responses expressed general support for the policy and requested a reduction in the submission period, many of the comments also requested clarification of the policy, such as cost reimbursement, compliance and enforcement, and impact on copyright law and publishing.
5. National Science Foundation
The National Science Foundation (NSF) has posted on its website a revised version of the NSF Proposal & Award Policies & Procedures (PAPPG, NSF 09-1) that will be effective for proposals received on or after January 5, 2009. A "Summary of Significant Changes" is posted with the Grant Proposal Guide (GPG) at: http://www.nsf.gov/pubs/policydocs/pappguide/nsf09_1/gpg_index.jsp.
The revision addresses requests from the higher education research community for increased flexibility in charging salary by changing its compensation policy "to no more than two months of (senior project personnel) regular salary in any one year." The prior limitation to summer salary has been eliminated.
In addition to changes in compensation, NSF begins implementing the requirements outlined in the America COMPETES Act by describing a new section of the project description concerning the mentoring of post-doctoral fellows. Proposals requesting support for a postdoctoral fellow must include, "as a separate section within the 15-page Project description, a description of the mentoring activities that will be provided for such individuals." Mentoring activities will be assessed in the merit review as part of the broader impacts criteria and proposals that include a post-doc . Those "that do not include a separate section on mentoring activities within the Project Description will be returned without review."
6. Patent Reform
Senator Minority Whip Jon Kyl (R-AZ) unveiled legislation to revamp the patent process. The bill was introduced as an alternative to S. 1145, sponsored by Judiciary Committee Chairman Patrick Leahy (D-VT) and Senator Orrin Hatch (R-UT), committee member. Although the latter bill was placed on the Senate calendar, it has not been voted on and continues to elicit objections from the biotechnology community. Senator Kyl's proposal would change the method for calculating damages in patent lawsuits by requiring that standardized economic analyses be utilized to determine damages, and would shift the responsibility for determining an applicant's intent to mislead from the courts to the US Patent and Trademark Office.
7. Research: Human subjects
Rep. Dianne DeGette (D-CO) introduced H.R. 7140 that seeks to help standardize human research protections. Rep. Lloyd Doggett (D-TX) is a co-sponsor.
HHS—research misconduct education efforts
The Department of Health and Human Services (HHS) is seeking public comment on a proposed effort to collect information on medical schools' efforts to educate faculty about research misconduct. The study will be conducted by the HHS Office of Research Integrity (ORI) and will evaluate the knowledge of medical school faculty members about their institution's research misconduct policies and procedures. The ORI will study the role of research misconduct education in medical schools and will identify best practices and approaches used by medical institutions to disseminate information and guidelines to their faculty, staff and students. Study participants have been randomly selected from the National Institutes of Health's list of medical school principal investigators who received research project awards in 2005 or 2006. Comments are due by November 12. For additional information, go to: http://edocket.access.gpo.gov/2008/e8-24297.htm.
APHIS contingency planning
The U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) has proposed amendments to the Animal Welfare Act (AWA) regulations that would require research facilities and other institutions to develop contingency plans for all animals regulated under the AWA to better prepare for potential disasters. The proposed amendments would require such a contingency plan to include:
- A list of potential emergency situations.
- Specific tasks to be carried out in response to the identified emergencies.
- Chain of command and list of accountable individuals.
- Explanation of the materials, resources, and training needed for such a response and recovery.
Comments on the proposed amendments are due on December 22, 2008. For additional information: http://www.aphis.usda.gov/newsroom/content/2008/10/awaconplan.shtml.
8. Taxes
The $700 billion rescue package for financial institutions passed by Congress includes a provision to extend and expand a tax credit for investing in research. A perennial legislative priority for businesses, the research credit was adopted initially in 1981 and has been extended a dozen times, often for a single year, and periodically revised. The original law provided a 20 percent tax credit for additional research spending using a formula based on research as a share of overall sales from an earlier period. Most companies now use a "simplified" credit adopted in 2006 that rewards them for increasing their research budgets. The legislation increases the percentage on simplified credit from 12 percent to 14 percent and makes it retroactive to the date the old provision expired—December 31, 2007—and extends it through December 31, 2009.
9. Odds and Ends: Pharma payments to physicians
Eli Lilly and Merck announced that they will begin publicly reporting payments they make to outside physicians for speaking and consulting related to their products. The companies were responding to criticisms from journal editors and the U.S. Congress aimed at pharmaceutical and medical diagnostic companies, as well as those receiving payments from them, that such payments could bias doctors' interpretations of research study results and alter their prescribing preferences. Next year Congress is expected to consider the "Physicians Payment Sunshine Act," which would require increased public disclosure of company payments to physicians.
Federal agencies' dissemination of scientific information
The Union of Concerned Scientists has released a report, Freedom to Speak? A Report Card on Federal Agency Media Policies. The report asses the degree of freedom with which science is communicated by or in federal agencies, both in policy and practice. NASA, the National Institute of Standards and Technology (NIST), and the National Oceanic Atmospheric Administration (NOAA) came out best, while EPA and the Fish and Wildlife Service (FWS) did not fare as well. The NIH received middling marks, while the NSF was labeled "incomplete" due to the lack of a clear media relations policy.
Medicaid spending
The Centers for Medicare and Medicaid Services (CMS) Office of the Actuary has issued its first annual report on the financial outlook for the Medicaid program. The report projects that combined state/federal spending on Medicaid benefits will grow by an annual rate of about 7.9 percent over the next 10 years. In comparison, the federal Office of Management and Budget (OMB) has projected that the annual gross domestic product will grow at an average rate of 4.8 percent. The CMS report estimates that, by 2017, Medicaid expenditures will total nearly $647 billion, with the federal share exceeding $383 billion. For additional information: http://www.cms.hhs.gov/ActuraialStudies/downloads/MedicaidReport-2008.pdf.
10. Comings and Goings
Conrad Lautenbacher, Administrator of the US National Oceanic and Atmospheric Administration (NOAA) , will leave his position on October 31. Bill Brennan, NOAA's current assistant secretary and deputy administrator, will serve as Acting Administrator beginning November 1.
Department of Health and Human Services Secretary Mike Leavitt announced that Dr. Raynard Kington, Principal Deputy Director of the National Institutes of Health (NIH), will be Acting Director of NIH effective when Dr. Elias Zerhouni departs the agency on October 31.
Norka Ruiz Bravo, Ph.D. will step down as National Institutes of Health (NIH) Deputy Director for Extramural Research and Director, Office of Extramural Research (OER) in November. She will assume a new role as Special Advisor to the Director, NIH. Sally J. Rockey, Ph.D., currently Deputy Director of OER, will serve as Acting Deputy Director for Extramural Research when Dr. Ruiz Bravo transitions into her new role.
Dana Gioia announced that he will step down as chairman of the National Endowments for the Arts in January 2009, two years before his second term expires.
Michael Kluse has been named director of the Department of Energy's Pacific Northwest National Laboratory in Richland, WA. He has served as interim director since August 2007.
Jerry Menikoff has been named to direct the federal Office for Research Protections. He currently heads NIH's Office of Human Subjects Research.
Former astronaut Harrison "Jack" Schmitt, a former US senator and one of the last two men to walk on the Moon, has stepped down as chairman of the NASA Advisory Council. Ken Ford, founder and director of the Florida Institute for Human and Machine Cognition, is his successor.
Former Rep. Paul Rogers (D-FL), known as "Mr. Health" during his 12 terms in Congress (1955-1979) has died. Mr. Rogers was known as a tireless advocate for health research and a key force behind health and environmental protection.
The Buckeye State
It has been quiet in Columbus as the Ohio General Assembly remains in recess. Speaker Jon Husted and Senate President Bill Harris may reconvene the members after November 4 for a lame duck session.
Other States
Texas K-12 science standards
The Texas Education Agency has released draft science education standards. The drafting committee, composed of science teachers and scientists, proposed strengthening the teaching of evolution, in part by dropping the current language about exposing students to the theory's "strengths and weaknesses." Board of Education Chairman Don McLeroy, a vocal creationist, opposed that aspect of the draft. The Board is expected to vote on the standards in early 2009.
California, stem cells
The Medical Research Council of the United Kingdom and the California Institute for Regenerative Medicine have signed a collaborative agreement on stem cell research. The agreement will make it easier for researchers in California and the UK to obtain joint funding and broaden the potential pool of expertise that can be applied toward stem cell research.
Locally
Two special primary elections were held on October 14, 2008 to determine candidates for a special General Election on November 18. Cleveland City Council Ward 7 residents selected Councilwoman Stephanie Howse and T. J. Dawe face-off. The winner will complete the unexpired term of the late Councilwoman Fannie Lewis, who passed away in August.
Democrats in Ohio's 11th Congressional District selected the Honorable Marcia Fudge, mayor of Warrensville Hts., as their candidate to complete the unexpired term of the late Congresswoman Stephanie Tubbs Jones.
Nine candidates, including Councilman Terrell Pruitt, will be on the ballot on November 18 for a special primary election. The top two vote recipients will meet in a special general election to fill the unexpired term of former Councilwoman Nina Turner, who was named to complete the unexpired term of former state Senator Lance Mason. Mr. Mason resigned from the Ohio Senate during the summer and was appointed judge in the Cuyahoga Court of Common Please.
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