The Senate spending bill, which has been reported by the Washington Post and others as having passed, includes an NIH open access provision.
Here's an excerpt from "In 2009 Appropriations Bill, NIH Public Access Mandate Would Become Permanent":
In the section funding the NIH, section 217, pertaining to public access, reads:
"The Director of the National Institutes of Health shall require in the current fiscal year and thereafter [emphasis added] that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine's PubMed Central an electronic version their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: provided, That the NIH shall implement the public access policy in a manner consistent with copyright law."
In his "Congress Makes NIH Policy Permanent (but for Conyers Bill) post," Peter Suber points out that because of the Fair Copyright in Research Works Act the NIH Public Access policy is still in danger.