[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 770 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 770

To amend titles V, XVIII, and XIX of the Social Security Act to promote 
   cessation of tobacco use under the Medicare program, the Medicaid 
    program, and the maternal and child health services block grant 
                                program.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 1, 2009

Mr. Durbin (for himself and Mr. Kennedy) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
To amend titles V, XVIII, and XIX of the Social Security Act to promote 
   cessation of tobacco use under the Medicare program, the Medicaid 
    program, and the maternal and child health services block grant 
                                program.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Medicare, Medicaid, and MCH Tobacco 
Cessation Promotion Act of 2009''.

SEC. 2. MEDICARE COVERAGE OF COUNSELING FOR CESSATION OF TOBACCO USE.

    (a) Coverage.--Section 1861(s)(2) of the Social Security Act (42 
U.S.C. 1395x(s)(2)), as amended by section 152(b) of the Medicare 
Improvements for Patients and Providers Act of 2008 (Public Law 110-
275), is amended--
            (1) in subparagraph (DD), by striking ``and'' at the end;
            (2) in subparagraph (EE), by inserting ``and'' at the end; 
        and
            (3) by adding at the end the following new subparagraph:
            ``(FF) counseling for cessation of tobacco use (as defined 
        in subsection (hhh));''.
    (b) Services Described.--Section 1861 of the Social Security Act 
(42 U.S.C. 1395x), as so amended, is amended by adding at the end the 
following new subsection:
    ``(hhh) Counseling for Cessation of Tobacco Use.--(1)(A) Subject to 
subparagraph (B), the term `counseling for cessation of tobacco use' 
means diagnostic, therapy, and counseling services for cessation of 
tobacco use for individuals who use tobacco products or who are being 
treated for tobacco use which are furnished--
            ``(i) by or under the supervision of a physician;
            ``(ii) by a practitioner described in clause (i), (iii), 
        (iv), (v), or (vi) of section 1842(b)(18)(C); or
            ``(iii) by a licensed tobacco cessation counselor (as 
        defined in paragraph (2)).
    ``(B) Such term is limited to--
            ``(i) services recommended in `Treating Tobacco Use and 
        Dependence: A Clinical Practice Guideline', published by the 
        Public Health Service in May 2008, or any subsequent 
        modification of such Guideline; and
            ``(ii) such other services that the Secretary recognizes to 
        be effective.
    ``(2) In this subsection, the term `licensed tobacco cessation 
counselor' means a tobacco cessation counselor who--
            ``(A) is licensed as such by the State (or in a State which 
        does not license tobacco cessation counselors as such, is 
        legally authorized to perform the services of a tobacco 
        cessation counselor in the jurisdiction in which the counselor 
        performs such services); and
            ``(B) meets uniform minimum standards relating to basic 
        knowledge, qualification training, continuing education, and 
        documentation that are established by the Secretary for 
        purposes of this subsection.''.
    (c) Payment and Elimination of Cost-Sharing for Counseling for 
Cessation of Tobacco Use.--
            (1) Payment and elimination of coinsurance.--Section 
        1833(a)(1) of the Social Security Act (42 U.S.C. 1395l(a)(1)) 
        is amended--
                    (A) by striking ``and'' before ``(W)''; and
                    (B) by inserting before the semicolon at the end 
                the following: ``, and (X) with respect to counseling 
                for cessation of tobacco use (as defined in section 
                1861(hhh)), the amount paid shall be 100 percent of the 
                lesser of the actual charge for the service or the 
                amount determined by a fee schedule established by the 
                Secretary for purposes of this subparagraph''.
            (2) Elimination of coinsurance in outpatient hospital 
        settings.--
                    (A) Exclusion from opd fee schedule.--Section 
                1833(t)(1)(B)(iv) of the Social Security Act (42 U.S.C. 
                1395l(t)(1)(B)(iv)) is amended by striking ``and 
                diagnostic mammography'' and inserting ``, diagnostic 
                mammography, or counseling for cessation of tobacco use 
                (as defined in section 1861(hhh))''.
                    (B) Conforming amendments.--Section 1833(a)(2) of 
                the Social Security Act (42 U.S.C. 1395l(a)(2)) is 
                amended--
                            (i) in subparagraph (F), by striking 
                        ``and'' after the semicolon at the end;
                            (ii) in subparagraph (G)(ii), by striking 
                        the comma at the end and inserting ``; and''; 
                        and
                            (iii) by inserting after subparagraph 
                        (G)(ii) the following new subparagraph:
                    ``(H) with respect to counseling for cessation of 
                tobacco use (as defined in section 1861(hhh)) furnished 
                by an outpatient department of a hospital, the amount 
                determined under paragraph (1)(X),''.
            (3) Elimination of deductible.--The first sentence of 
        section 1833(b) of the Social Security Act (42 U.S.C. 1395l(b)) 
        is amended--
                    (A) by striking ``and'' before ``(9)''; and
                    (B) by inserting before the period the following: 
                ``, and (10) such deductible shall not apply with 
                respect to counseling for cessation of tobacco use (as 
                defined in section 1861(hhh))''.
    (d) Application of Limits on Billing.--Section 1842(b)(18)(C) of 
the Social Security Act (42 U.S.C. 1395u(b)(18)(C)) is amended by 
adding at the end the following new clause:
            ``(vii) A licensed tobacco cessation counselor (as defined 
        in section 1861(hhh)(2)).''.
    (e) Inclusion as Part of Initial Preventive Physical Examination.--
Section 1861(ww)(2) of the Social Security Act (42 U.S.C. 1395x(ww)(2)) 
is amended by adding at the end the following new subparagraph:
            ``(O) Counseling for cessation of tobacco use (as defined 
        in subsection (hhh)).''.
    (f) Effective Date.--The amendments made by this section shall 
apply to services furnished on or after the date that is 1 year after 
the date of enactment of this Act.

SEC. 3. MEDICARE COVERAGE OF TOBACCO CESSATION PHARMACOTHERAPY.

    (a) Inclusion of Tobacco Cessation Agents as Covered Drugs.--
Section 1860D-2(e)(1) of the Social Security Act (42 U.S.C. 1395w-
102(e)(1)) is amended--
            (1) in subparagraph (A), by striking ``or'' after the 
        semicolon at the end;
            (2) in subparagraph (B), by striking the comma at the end 
        and inserting ``; or''; and
            (3) by inserting after subparagraph (B) the following new 
        subparagraph:
                    ``(C) any agent approved by the Food and Drug 
                Administration for purposes of promoting, and when used 
                to promote, tobacco cessation that may be dispensed 
                without a prescription (commonly referred to as an 
                `over-the-counter' drug), but only if such an agent is 
                prescribed by a physician (or other person authorized 
                to prescribe under State law),''.
    (b) Establishment of Categories and Classes Consisting of Tobacco 
Cessation Agents.--Section 1860D-4(b)(3)(C) of the Social Security Act 
(42 U.S.C. 1395w-104(b)(3)(C)) is amended by adding at the end the 
following new clause:
                            ``(iv) Categories and classes of tobacco 
                        cessation agents.--There shall be a therapeutic 
                        category or class of covered part D drugs 
                        consisting of agents approved by the Food and 
                        Drug Administration for cessation of tobacco 
                        use. Such category or class shall include 
                        tobacco cessation agents described in 
                        subparagraphs (A) and (C) of section 1860D-
                        2(e)(1).''.
    (c) Conforming Amendment.--Section 1860D-2(e)(2)(A) of the Social 
Security Act (42 U.S.C. 1395w-102(e)(2)(A)), as amended by section 175 
of the Medicare Improvements for Patients and Providers Act of 2008 
(Public Law 110-275), is amended by striking ``, other than 
subparagraph (E) of such section (relating to smoking cessation 
agents),''.

SEC. 4. PROMOTING CESSATION OF TOBACCO USE UNDER THE MEDICAID PROGRAM.

    (a) Coverage of Tobacco Cessation Counseling Services.--
            (1) In general.--Section 1905(a) of the Social Security Act 
        (42 U.S.C. 1396d(a)) is amended--
                    (A) in paragraph (27), by striking ``and'' after 
                the semicolon at the end;
                    (B) in paragraph (28), by striking the comma at the 
                end and inserting ``; and''; and
                    (C) by inserting after paragraph (28) the following 
                new paragraph:
            ``(29) at the option of the State, counseling for cessation 
        of tobacco use (as defined in section 1861(hhh)),''.
            (2) Conforming amendment.--Section 1902(a)(10)(C)(iv) of 
        the Social Security Act (42 U.S.C. 1396a(a)(10)(C)(iv)) is 
        amended by inserting ``or (29)'' after ``(24)''.
    (b) Elimination of Optional Exclusion From Medicaid Prescription 
Drug Coverage for Tobacco Cessation Medications.--Section 1927(d)(2) of 
the Social Security Act (42 U.S.C. 1396r-8(d)(2)) is amended--
            (1) by striking subparagraph (E);
            (2) by redesignating subparagraphs (F) through (K) as 
        subparagraphs (E) through (J), respectively; and
            (3) in subparagraph (F) (as redesignated by paragraph (2)), 
        by inserting before the period at the end the following: ``, 
        other than agents approved by the Food and Drug Administration 
        for purposes of promoting, and when used to promote, tobacco 
        cessation''.
    (c) Removal of Cost-Sharing for Tobacco Cessation Counseling 
Services and Medications.--Subsections (a)(2) and (b)(2) of section 
1916 of the Social Security Act (42 U.S.C. 1396o) are each amended--
            (1) in subparagraph (D), by striking ``or'' after the comma 
        at the end;
            (2) in subparagraph (E), by striking ``; and'' and 
        inserting ``, or''; and
            (3) by adding at the end the following new subparagraph:
                    ``(F)(i) counseling for cessation of tobacco use 
                described in section 1905(a)(29); or
                    ``(ii) covered outpatient drugs (as defined in 
                paragraph (2) of section 1927(k), and including 
                nonprescription drugs described in paragraph (4) of 
                such section) that are prescribed for purposes of 
                promoting, and when used to promote, tobacco cessation; 
                and''.
    (d) Increased FMAP for Tobacco Cessation Counseling Services and 
Medications.--The first sentence of section 1905(b) of the Social 
Security Act (42 U.S.C. 1396d(b)) is amended--
            (1) by striking ``and'' before ``(4)''; and
            (2) by inserting before the period the following: ``, and 
        (5) for purposes of this title, the Federal medical assistance 
        percentage shall be 80 percent with respect to amounts expended 
        as medical assistance for counseling for cessation of tobacco 
        use described in subsection (a)(29) and for covered outpatient 
        drugs (as defined in paragraph (2) of section 1927(k), and 
        including nonprescription drugs described in paragraph (4) of 
        such section) that are prescribed for purposes of promoting, 
        and when used to promote, tobacco cessation''.
    (e) Effective Date.--The amendments made by this section shall 
apply to services furnished on or after the date that is 1 year after 
the date of enactment of this Act.

SEC. 5. PROMOTING CESSATION OF TOBACCO USE UNDER THE MATERNAL AND CHILD 
              HEALTH SERVICES BLOCK GRANT PROGRAM.

    (a) Quality Maternal and Child Health Services Includes Tobacco 
Cessation Counseling and Medications.--Section 501 of the Social 
Security Act (42 U.S.C. 701) is amended by adding at the end the 
following new subsection:
    ``(d) For purposes of this title, quality maternal and child health 
services include the following:
            ``(1) Counseling for cessation of tobacco use (as defined 
        in section 1861(hhh)).
            ``(2) The encouragement of the prescribing and use of 
        agents approved by the Food and Drug Administration for 
        purposes of tobacco cessation.
            ``(3) The inclusion of messages that discourage tobacco use 
        in health promotion counseling.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect on the date that is 1 year after the date of enactment of 
this Act.
                                 <all>