II 111th CONGRESS 1st Session S. 366 IN THE SENATE OF THE UNITED STATES February 3, 2009 Mr. Kerry introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend the Social Security Act to eliminate the 5-month waiting period for Social Security disability and the 24-month waiting period for Medicare benefits in the cases of individuals with disabling burn injuries.

1.

Short title

This Act may be cited as the Social Security and Medicare Improved Burn Injury Treatment Access Act of 2009.

2.

Findings

Congress makes the following findings: (1)Terrorist acts, such as the September 11, 2001 attacks in New York and Washington, DC and attacks in countries throughout the world, major accidental events, chemical plant explosions, airplane crashes, and major industrial accidents, result in a substantial number of burn-injured patients. (2)In most major traumatic events, 25 percent to 30 percent of the injured will require burn care treatment. About one-third of those hospitalized in New York on September 11th had severe burn injuries. (3)According to the American Burn Association (ABA), which is the national professional society representing hospitals with burn centers, as well as burn surgeons, nurses, therapists, and other members of the burn care team, there are only 128 burn centers in the United States. The total burn-bed capacity at all burn centers in the United States is 1,835 beds. Burn centers in four States have closed, with a loss of several beds, which further diminishes the nation’s ability to handle the mass burn casualties that could result from a major terrorist attack. (4)Burn centers are a national resource that must be preserved and strengthened as part of the Nation’s preparedness activities to deal with terrorist attacks or other disasters that would likely lead to mass burn casualties. (5)Based on a study of over 54,000 burn cases over a 20-year period of time, the ABA in its 2002 National Burn Repository Report indicates that 38 percent of burn-injured patients treated in burn centers were uninsured. This high level of uncompensated care threatens the survival of burn centers, the continued existence of which is essential to the emergency preparedness efforts of the United States. (6)Burn injuries are among the most costly to treat and require immediate medical attention. (7)Because of the necessity of providing immediate care in the case of burn injuries, the waiting periods established for Medicare coverage for disabled burn patients should be waived and it is essential for Medicare to reimburse the costs of such burn treatment to ensure the financial survival of burn centers.

3.

Elimination of 5-month social security disability waiting period in cases of individuals with disabling burn injuries

(a)

Disability insurance benefits

Section 223(a) of the Social Security Act (42 U.S.C. 423(a)) is amended by adding at the end the following new paragraph: (3)(A)In the case of any individual who has a disabling burn injury and is not entitled to disability insurance benefits under this section for any month solely by reason of the waiting period under clause (i) in the first sentence of paragraph (1), the Commissioner of Social Security shall waive the application of the waiting period, and, notwithstanding clauses (i) and (ii) of the first sentence of paragraph (1), such individual shall be entitled to disability insurance benefits for each month, beginning with the first month during all of which such individual is under a disability and in which such individual would become so entitled to such insurance benefits under such sentence but for such waiting period, and ending as provided in paragraph (1). (B)For purposes of subparagraph (A), the process for determining under paragraph (1) the month in which the disability ceases shall require that the status of the individual’s disability be determined at least once every 3 years. (C)For purposes of subparagraph (A) and sections 202(e)(5)(C), 202(f)(6)(C), and 216(i)(2)(A)(ii), an individual is considered to have a disabling burn injury if the individual has a burn injury that satisfies a finding of disability in accordance with the Social Security Administration’s publication, Disability Evaluation under Social Security (Blue Book, January 2005) for purposes of establishing eligibility for benefits under this title. . (b)

Widow’s insurance benefits based on disability

Section 202(e)(5) of such Act (42 U.S.C. 402(e)(5)) is amended by adding at the end the following new subparagraph: (C)In the case of any individual who has a disabling burn injury (as described in section 223(a)(3)(B)) and is not entitled to widow’s insurance benefits under this section for any month solely by reason of the waiting period under paragraph (1)(F)(i), the Commissioner of Social Security shall waive the application of the waiting period, and, notwithstanding clauses (i) and (ii) of paragraph (1)(F), such individual shall be entitled to widow’s insurance benefits for each month, beginning with the first month during all of which she is under a disability and in which she would become so entitled to such insurance benefits under paragraph (1) but for such waiting period, and ending as provided in paragraph (1). For purposes of the previous sentence, in determining under paragraph (1) the month in which the disability ceases the status of the individual’s disability shall be reviewed at least once every 3 years. . (c)

Widower’s insurance benefits based on disability

Section 202(f)(5) of such Act (42 U.S.C. 402(f)(5)) is amended by adding at the end the following new subparagraph: (C)In the case of any individual who has a disabling burn injury (as described in section 223(a)(3)(B)) and is not entitled to widower’s insurance benefits under this section for any month solely by reason of the waiting period under paragraph (1)(F)(i), the Commissioner of Social Security shall waive the application of the waiting period, and, notwithstanding clauses (i) and (ii) of paragraph (1)(F), such individual shall be entitled to widower’s insurance benefits for each month, beginning with the first month during all of which he is under a disability and in which he would become so entitled to such insurance benefits under paragraph (1) but for such waiting period, and ending as provided in paragraph (1). For purposes of the previous sentence, in determining under paragraph (1) the month in which the disability ceases the status of the individual’s disability shall be reviewed at least once every 3 years. . (d)

Commencement of period of disability

Section 216(i)(2)(A) of such Act (42 U.S.C. 416(i)(2)(A)) is amended— (1)by inserting (i) after (2)(A); (2)by inserting (I) after but only if; (3)by inserting (II) after duration or; and (4)by adding at the end the following new clause: (ii)In any case in which an individual has a disabling burn injury (as described in section 223(a)(3)(B)) and a month is not included within a period of disability of such individual solely by reason of the 5-month duration requirement under clause (i)(I), the Commissioner of Social Security shall waive the application of such requirement, and, notwithstanding clause (i)(I), such month shall be included in a period of disability. . (e)

Effective dates

The amendments made by subsection (a) shall apply only with respect to benefits under section 223 of the Social Security Act, or under section 202 of such Act on the basis of the wages and self-employment income of an individual entitled to benefits under such section 223, for months beginning after the date of the enactment of this Act. The amendments made by subsections (b) and (c) shall apply only with respect to benefits based on disability under subsection (e) or (f) of section 202 of the Social Security Act for months after the date of the enactment of this Act. The amendments made by subsection (d) shall apply only with respect to applications for disability determinations filed under title II of the Social Security Act after the date of the enactment of this Act.

4.

Elimination of 24-month Medicare disability waiting period in cases of individuals with disabling burn injuries

(a)

In general

Section 226(h) of the Social Security Act (42 U.S.C. 426(h)) is amended— (1)in the matter preceding paragraph (1), by inserting or a disabling burn injury (as described in section 223(a)(3)(B)) after amyotrophic lateral sclerosis (ALS); (2)by redesignating paragraphs (1), (2), and (3) as subparagraphs (A), (B), and (C), respectively, with appropriate indentation and striking For purposes of and inserting (1) For purposes of; and (3)by adding at the end the following new paragraphs: (2)Paragraph (1) shall not apply to an individual medically determined to have a disabling burn injury (as so described) if— (A)on the date such injury occurred such individual was covered under a group health plan (as defined in section 2791 of the Public Health Service Act) or had health insurance coverage (as defined in such section), regardless of the extent to which such plan or coverage provides benefits with respect to such injury; or (B)after the date of the enactment of the Social Security and Medicare Improved Burn Injury Treatment Access Act of 2009, the terms and conditions of coverage, with respect to such injury, under the State plan under title XIX of the State in which the individual resides are more restrictive than such terms and conditions as of the day before such date of enactment. (3)For purposes of applying paragraph (1) in the case of an individual medically determined to have a disabling burn injury (as so described), in determining when an individual’s entitlement or status terminates, the status of the individual’s disability shall be reviewed at least once every 3 years. . (b)

Effective date

The amendment made by subsection (a) shall apply to benefits under title XVIII of the Social Security Act with respect to items and services furnished in months beginning after the date of the enactment of this Act.