Billions in NIH grants could be jeopardized by appointments snafu, Republicans say

The Biden administration allegedly failed to correctly reappoint more than a dozen top-ranking National Institutes of Health leaders, House Republicans say, raising questions about the legality of billions in federal grants doled out by those officials over the last year. 

Their claim, detailed Friday in a letter to Health and Human Services Secretary Xavier Becerra, obtained by CBS News, follows a monthslong probe led by Rep. Cathy McMorris Rodgers, the Republican chair of the House Energy & Commerce Committee, into vacancies at the agency.

"The failure to reappoint the above NIH IC Directors jeopardizes the legal validity of more than $25 billion in federal biomedical research grants made in 2022 alone," the committee wrote.

The Biden administration rebutted the GOP-led committee's accusations that it ran afoul of the law. An HHS official familiar with the matter, who responded on the condition of anonymity, said the committee was misrepresenting the requirements.

The committee's letter stems from the 21st Century Cures Act passed in 2016, which says that directors atop the institutes and centers within the NIH have five-year term limits before they must be reappointed. 

When the term limits of 14 of these officials came due at the end of 2021, the Biden administration says the NIH director correctly reappointed them. The law says that they must be "appointed by the Secretary, acting through the Director of the National Institutes of Health."

The committee says that the way those officials were reappointed falls short of what the law demands from Becerra himself.

"Specifically, it requires the Secretary of HHS to reappoint NIH IC Directors, including those who were serving at the time of the law's enactment when their five-year terms expired on December 12, 2021," the letter stated.

After the committee's probe was launched, Becerra signed affidavits the department says retroactively ratified and adopted the appointments. 

While the Biden administration thinks its grants remain on sound footing, the HHS official said Becerra's affidavits were intended to bolster defenses against challenges that might upend them in the courts.  

The committee questioned the legality of that move. Among the issues it flagged were the retirements of Dr. Anthony Fauci, formerly head of the National Institutes of Allergy and Infectious Diseases, and Dr. Roger Glass, who had headed the Fogarty International Center. Both stepped down months before Becerra signed the affidavits in June.

"HHS and the NIH should have known within days of receiving the Committee's March 14, 2022, letter that the reappointments as legally required had not occurred. Rather than addressing the problem in consultation with the Committee, HHS and the NIH repeatedly misled the Committee," the committee wrote of its  monthslong back-and-forth with the department. 

The HHS official insisted that the department had cooperated with the committee's questions in good faith, voluntarily producing documents and responses to the inquiry.

Thousands of researchers compete every year for NIH funding, which support a variety of projects ranging from fundamental laboratory research to human clinical trials. 

Asked how those programs might be affected, a committee aide told CBS News, "It is unclear what the impact will be, but it creates unnecessary uncertainty and opens the door to legal challenges, While we are unaware of any other Cabinet Secretaries committing such egregious process violations, a similar case involving SEC Administrative Law Judges required the decisions made by improperly appointed officials be relitigated in front of a legally appointed judge."

The committee says its probe into the issue is continuing and prompted a renewed round of questions to the department, as well as the possibility of demanding interviews from HHS and NIH officials.  

Its letter to Becerra warned that "intentional misstatements or omissions" may constitute "federal criminal violations under 18 USC 1001," adding that it serves as a formal request to preserve "all existing and future records."

"Institute directors with discretion to award billions or even hundreds of millions in research funding are, by definition, exercising significant authority pursuant to the laws of the United States. As such, institute directors are the quintessential 'inferior officers,'" a former senior HHS official told CBS News. 

"The Secretary cannot delegate his or her constitutional authority to appoint inferior officers. It is my understanding that prior administrations of both parties zealously guarded the appointments process and took care to ensure that inferior officers were properly appointed," said the former senior official, who previously served in the Bush, Reagan and Trump administrations.

The Republican-led committee's letter comes as the Biden administration has yet to fill key vacancies in the NIH leadership. 

The agency has been without a director since December 2021, when Dr. Francis Collins stepped down from his post. 

In May, President Biden announced he planned to nominate Dr. Monica Bertagnolli — currently head of the NIH's National Cancer Institute — to fill the role.

So far, Bertagnolli's nomination is awaiting Senate confirmation. 

Independent Sen. Bernie Sanders, chair of the panel charged with signing off on HHS nominees, has vowed not to move forward with the nomination without new pledges from the Biden administration on drug prices. 

"I will oppose all nominations until we have a very clear strategy on the part of the government … as to how we're going to lower the outrageously high cost of prescription drugs," Sanders told The Washington Post last month.

Catherine Herridge is a senior investigative correspondent for CBS News covering national security and intelligence based in Washington, D.C.