[Congressional Record Volume 142, Number 125 (Thursday, September 12, 1996)]
[Senate]
[Pages S10383-S10400]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TREASURY, POSTAL SERVICE, AND GENERAL GOVERNMENT APPROPRIATIONS ACT,
1977
The Senate continued with consideration of the bill.
Amendment No. 5244
(Purpose: To amend title 18, United States Code, with respect to gun
free schools, and for other purposes)
Mr. KOHL. I ask unanimous consent to lay aside the pending amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KOHL. I send an amendment to the desk for immediate
consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Wisconsin [Mr. Kohl] proposes an amendment
numbered 5244.
Mr. KOHL. Mr. President, I ask unanimous consent reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place in the bill, add the following new
section:
SEC. . PROHIBITION.
Section 922(q) of title 18, United States Code, is amended
to read as follows:
``(q)(1) The Congress finds and declares that--
``(A) crime, particularly crime involving drugs and guns,
is a pervasive, nationwide problem;
``(B) crime at the local level is exacerbated by the
interstate movement of drugs, guns, and criminal gangs;
``(C) firearms and ammunition move easily in interstate
commerce and have been found in increasing numbers in and
around schools, as documented in numerous hearings in both
the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the
Senate;
[[Page S10384]]
``(D) in fact, even before the sale of a firearm, the gun,
its component parts, ammunition, and the raw materials from
which they are made have considerably moved in interstate
commerce;
``(E) while criminals freely move from State to State,
ordinary citizens and foreign visitors may fear to travel to
or through certain parts of the country due to concern about
violent crime and gun violence, and parents may decline to
send their children to school for the same reason;
``(F) the occurrence of violent crime in school zones has
resulted in a decline in the quality of education in our
country;
``(G) this decline in the quality of education has an
adverse impact on interstate commerce and the foreign
commerce of the United States;
``(H) States, localities, and school systems find it almost
impossible to handle gun-related crime by themselves--even
States, localities, and school systems that have made strong
efforts to prevent, detect, and punish gun-related crime find
their efforts unavailing due in part to the failure or
inability of other States or localities to take strong
measures; and
``(I) the Congress has the power, under the interstate
commerce clause and other provisions of the Constitution, to
enact measures to ensure the integrity and safety of the
Nation's schools by enactment of this subsection.
``(2)(A) It shall be unlawful for any individual knowingly
to possess a firearm that has moved in or that otherwise
affects interstate or foreign commerce at a place that the
individual knows, or has reasonable cause to believe, is a
school zone.
``(B) Subparagraph (A) does not apply to the possession of
a firearm--
``(i) on private property not part of school grounds;
``(ii) if the individual possessing the firearm is licensed
to do so by the State in which the school zone is located or
a political subdivision of the State, and the law of the
State or political subdivision requires that, before an
individual obtains such a license, the law enforcement
authorities of the State or political subdivision verify that
the individual is qualified under law to receive the
license;
``(iii) that is--
``(I) not loaded; and
``(II) in a locked container, or a locked firearms rack
that is on a motor vehicle;
``(iv) by an individual for use in a program approved by a
school in the school zone;
``(v) by an individual in accordance with a contract
entered into between a school in the school zone and the
individual or an employer of the individual;
``(vi) by a law enforcement officer acting in his or her
official capacity; or
``(vii) that is unloaded and is possessed by an individual
while traversing school premises for the purpose of gaining
access to public or private lands open to hunting, if the
entry on school premises is authorized by school authorities.
``(3)(A) Except as provided in subparagraph (B), it shall
be unlawful for any person, knowingly or with reckless
disregard for the safety of another, to discharge or attempt
to discharge a firearm that has moved in or that otherwise
affects interstate or foreign commerce at a place that the
person knows is a school zone.
``(B) Subparagraph (A) does not apply to the discharge of a
firearm--
``(i) on private property not part of school grounds;
``(ii) as part of a program approved by a school in the
school zone, by an individual who is participating in the
program;
``(iii) by an individual in accordance with a contract
entered into between a school in a school zone and the
individual or an employer of the individual; or
``(iv) by a law enforcement officer acting in his or her
official capacity.
``(4) Nothing in this subsection shall be construed as
preempting or preventing a State or local government from
enacting a statute establishing gun free school zones as
provided in this subsection.''.
Mr. KOHL. Mr. President, today's Washington Post tells the story of
young children being shot in their own neighborhoods by feuding gangs
who are targetting innocent bystanders. It tells us eloquently why we
must do all that we can to keep guns out of the hands of children. And
the most insidious form of juvenile violence is violence in our
schoolyards. We must take this opportunity to do what we can to keep
our school zones from becoming war zones. So I would like to offer the
Gun Free School Zones Act as an amendment.
The Gun-Free School Zones Act of 1995 is a commonsense, bipartisan,
constitutional approach to combating violence in our schools. It bars
bringing a gun within 1,000 feet of a school, with a few commonsense
exceptions. It modifies the Supreme Court's 1995 Lopez decision to
ensure the law's constitutionality. So, let me make a few points.
First, we need a Federal law. The Federal Government has a crucial
role to play in dealing with the gun traffic that leads right into our
classrooms. After all, how can we turn our backs on a national problem
that we can help solve?
The problem is national is scope. Anyone who thinks that this is a
local problem isn't looking at the evidence. Interstate commerce is
exactly what is causing the problem. Sometimes these guns get into
children's hands through the efforts of nationwide gangs.
One 14-year-old Madison, WI, gang member told the Wisconsin State
Journal that the older leaders of his gang brought car loads of guns
from Chicago to the younger gang members. For example, the Boston
police recently discovered that all of the handguns being bought by
gang members in one neighborhood came from Mississippi. The young man
who was running guns up to Boston was arrested and shootings in the
neighborhood dropped more than 60 percent, from 91 to 20.
These guns have infiltrated our school system and created a national
crisis. A Lou Harris survey this year found that one in eight youths--
two in five in high crime neighborhoods--reported having carried a gun
for protection. One in nine said they had stayed away from school
because of fear of violence. That number jumped to one in three in
high-crime neighborhoods.
Although State laws can help address this national problem, not every
State has a law. And not every State law is adequately drafted to do
the job. Moreover, in many of these States, people do not serve any
time for violating the law. In Federal cases, they do. With a Federal
law, we can fill in loopholes and put violators behind bars for up to 5
years. In short, the Gun Free School Zones Act gives prosecutors the
flexibility to bring violators to justice under either State or Federal
statutes, whichever is appropriate--or tougher.
No one claims that our legislation is a panacea. No one claims that
the violence will go away if we pass it, just as the violence did not
go away when the original law was passed. But a Federal law can help.
The Federal Government can step in and assist State prosecutors when
they do not have the resources they need. The Federal Government can
take on particularly bad offenders who will receive stiffer penalties
in a Federal prosecution. And this measure has bipartisan support: The
underlying bill is cosponsored by Senators Specter, Chafee, Simon,
Kennedy, Kerry, Kerrey, and others.
Finally, the new act addresses the constitutional concerns of the
Supreme Court which struck down the original Gun Free School Zones Act
last year. What we have done to ensure this result is simple and
sufficient: In every prosecution under the act, the Government will now
have to prove that the gun traveled in or affected interstate commerce.
This very provision was suggested by language in Chief Justice
Rehnquist's majority opinion. And the vast majority of constitutional
scholars agree that this new bill complies with the Supreme Court.
In conclusion, it does not make much sense to treat a modest and
sensible proposal as a major threat to the Federal-State balance. Our
founding fathers were concerned with commonsense, not with alarmist
predictions about the fate of Federal-State relations.
Mr. President, I ask unanimous consent that my extended remarks be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Extended Remarks of Senator Herb Kohl on the Gun Free School Zones
Amendment
The problem of school violence is a national one that begs
for national attention. Anyone who argues that the problem is
an exclusively intrastate problem is not looking at the
evidence. Interstate commerce is creating this problem.
The unchecked proliferation of guns and their delivery into
the hands of school-aged children is national in scope. The
raw materials for guns are mined in one state, are turned
into guns in another state, and are put into a child's hands
in another state. The gangs that arm these children and
encourage them to bring guns to school operate across state
lines.
The effects of guns in schools stretches across this
nation. Schools and districts with particularly bad gun
problems sink deeper and deeper into despair. They have
difficulty procuring Federal aid or grants from national
foundations. People will not move from out-of-state to that
school area because they do not want their children in
dangerous schools. Businesses will not relocate or establish
themselves in areas with dangerous school zones.
[[Page S10385]]
Finally, and perhaps most tragically, the children in those
schools are prevented from learning their ABC's. All they
learn is to live in terror. Children from Maine to Wisconsin
to Alabama to Oregon go to school in fear--fear that they may
be shot, that their teacher may be terrorized by a gun-
wielding student, that their school day will consist of
nothing but dodging from one perilously dangerous situation
to another. These children cannot learn and the educational
system cannot teach. Our national economy is crippled.
The Federal Government has a role to play in combatting
this national problem. We must put the full weight and
investigative abilities of the Federal Government behind the
drive to keep guns out of school. No state should be forced
to stand alone in confronting this problem.
Although many states have their own laws, we need a Federal
law for two reasons: first, many of these State laws are
inadequate; and second, a Federal law will serve as a
critical support and back-up system for state law enforcement
officials.
But before dealing with these reasons, I want to point out
that the amendment we have introduced today will not hamper,
preempt or harm the enforcement of those laws in any way
whatsoever.
However, about 5 to 10 states do not have laws which deal
with guns in schoolyards.
In addition, of the forty plus states that have laws,
almost half of them simply make it a misdemeanor to bring a
gun into school. Unfortunately, that has almost no effect on
a juvenile who knows that a juvenile misdemeanor record is
virtually meaningless. A stiff Federal penalty means a lot
more.
Some of the states also have weaker laws. Take, for
example, Alabama. Alabama requires that the person charged
have brought the gun to school with ``intent to do bodily
harm.'' So you can bring a gun to school, disrupt and
frighten all of the students but still get off because you
did not intend to actually shoot anyone. That is
unacceptable. Alabama's statute also only applies to guns on
public school grounds. Private schools are uncovered, so
anyone can walk into a parochial or private school with a gun
and without a fear of prosecution.
And there is still another reason why a federal law is
needed. We need federal and state cooperation to deal with
this problem. The states need our help. Sometimes they are
overwhelmed and need backup. Other times, they want to use
stiffer Federal penalties. This Gun-Free School Zones Act
will not preempt a single state law. And after decades of
dealing with complementary Federal-State laws, good State and
Federal prosecutors know how to coordinate their efforts--and
Federal prosecutors know to step aside when the state has a
stiffer law. Just ask Bob Wortham, the former Texas U.S.
Attorney nominated by Senator Gramm. Wortham prosecuted
more people under the Gun-Free School Zones Act than
anyone else. And he did it while getting rave reviews from
state police, prosecutors, and teachers. This Act is a
modest but useful measure that surely cannot threaten our
State governments.
You will not hear state officials complaining about
meddling federal officials. Instead, state officials welcome
federal assistance in this area.
The Gun-Free School Zones Act of 1995 assures a Federal-
State joint venture.
This amendment is clearly constitutional. Our original Gun
Free School Zones Act was struck down as unconstitutional in
United States versus Lopez. In drafting this amendment, we
consulted with the Justice Department and a variety of legal
experts who carefully scrutinized this bill and concluded it
would easily pass the Lopez test.
In fact, the very provision that has been inserted into the
bill to make it constitutional was suggested by a section in
the Chief Justice's opinion in Lopez. In a portion of that
opinion, the Chief Justice noted that if the law
``contain[ed] . . . [a] jurisdictional element which would
ensure, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce,'' then
the law would probably be constitutional.
By requiring an ``explicit connection with or effect on
interstate commerce'' Congress will be clearly regulating
interstate commerce pursuant to its constitutional Commerce
Clause power. And the fact is that guns in schools are an
interstate commerce problem. There are many known instances
of gangs travelling to other states to equip themselves with
guns which they then bring into schools. That is what this
bill seeks to regulate: the travel of guns through interstate
commerce to our schoolhouse steps.
This measure does not, as some opponents have argued pave
the way to federal regulation of state education. I firmly
believe that education is first and last the business of the
state governments. And this law does not get the Federal
Government in the business of regulating schools. It simply
gets the government in the business of controlling the
interstate commerce in guns. Since this bill rests on the
Federal Government's power to regulate interstate gun
commerce, I do not believe it could be used to justify
Federal regulation of state education.
Mr. LAUTENBERG. Mr. President, I rise today as an original cosponsor
of the Gun Free School Zones amendment offered by Senator Kohl, which
is critical to protecting the sanctity of our schools and the safety of
our students.
Mr. President, each day, an estimated 135,000 students pack a gun
with their books on their way to school. In 1990, the Centers for
Disease Control found that 1 in 20 students carried a gun in a 30-day
period. Three years later, that figure was 1 in 12.
At a time when guns are becoming increasingly prevalent on
neighborhood streets, we cannot simply stand by and allow our
playgrounds to become battlegrounds. We cannot expect our students to
thrive in an atmosphere where they must fear for their lives and for
their safety.
In 1990, Congress passed the original Gun Free School Zones Act with
overwhelming bipartisan support. As many of my colleagues know, a
sharply divided Supreme Court has invalidated that bill, saying that it
exceeded congressional power.
I personally disagreed with the Supreme Court decision, and signed an
amicus brief supporting the law's validity. But that is not the issue
before us today. Today, the issue is the safety of our children.
This amendment ensures the constitutionality of the Gun Free School
Zones Act by requiring the prosecutor to prove as part of each
prosecution that the gun moved in, or affected, interstate commerce.
That provision will place only a small burden on prosecutors and will
ensure our power to keep America's schools safe.
Mr. President, this legislation has the support of the law
enforcement and education communities. It has been endorsed by the
National Education Association, the American Association of School
Administrators, the National School Boards Association, the National
Association of Elementary School Principals and the American Academy of
Pediatrics.
Is this legislation a panacea, Mr. President? Of course, not.
However, it is a worthwhile effort to keep our children away from the
dangers of guns and violence.
Mr. President, the National Rifle Association likes to say that guns
do not kill; people do. But the gun statistics I have seen belie their
contentions. Firearms kill more teenagers than cancer, heart disease,
AIDS, and natural diseases combined. Guns are now the leading cause of
death for both white and black teenage boys.
We need to fight back the wave of gun violence that is overtaking our
streets and neighborhoods once and for all. I urge my colleagues to
support this important amendment and to help protect our children and
our teachers from gun violence.
Mr. KERREY. Mr. President, this is a very good amendment, a change in
the law that is needed as a consequence of the Supreme Court decision.
I support the amendment fully.
If the Senator wants to request the yeas and nays we can move
immediately to a rollcall vote.
Mr. KOHL. Mr. President, I add Senator Biden as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KOHL. I would like a rollcall vote, and I ask for the yeas and
nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. SHELBY. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BIDEN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 5295
(Purpose: To provide for the rescheduling of flunitrazepam into
schedule I of the Controlled Substances Act, and for other purposes.)
Mr. BIDEN. Mr. President, I ask unanimous consent to lay aside the
pending amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, I call up amendment 5295 and ask for its
immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Delaware [Mr. Biden] proposes an amendment
numbered 5295.
Mr. BIDEN. I ask unanimous consent reading of the amendment be
dispensed with.
[[Page S10386]]
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place in the bill, insert the following:
SEC. ____. RESCHEDULING OF FLUNITRAZEPAM INTO SCHEDULE I OF
THE CONTROLLED SUBSTANCES ACT.
Notwithstanding sections 201 and 202 (a) and (b) of the
Controlled Substances Act (21 U.S.C. 811, 812 (a), (b)),
respecting the scheduling of controlled substances, the
Attorney General shall, by order--
(1) transfer flunitrazepam from schedule IV of such Act to
schedule I of such Act; and
(2) add ketamine hydrochloride to schedule II of such Act.
SEC. ____. PENALTY FOR ADMINISTERING A CONTROLLED SUBSTANCE
TO FACILITATE A FELONY.
(a) In General.--The Controlled Substances Act (21 U.S.C.
100 et. seq.) is amended by adding at the end of part D the
following new section:
``penalty for administering a controlled substance to facilitate a
felony
``Sec. 423. Whoever administers a controlled substance to a
person without that person's knowledge for the purpose of
facilitating the commission or attempted commission of a
felony under Federal or State law shall, in addition to any
other penalty imposed, be imprisoned for up to 10 years,
fined as provided under title 18, United States Code, or
both.''.
(b) Federal and State Coordination.--The United States
Attorney shall coordinate the prosecution of any defendant
charged with an offense under section 423 of the Controlled
Substances Act with State and local law enforcement agencies.
(c) Conforming Amendment.--The table of sections for part D
of the Controlled Substances Act is amended by inserting
after the item relating to section 422 the following new
item:
``Sec. 423. Penalty for administering a controlled substance to
facilitate a felony.''
Mr. BIDEN. Mr. President, let me get right to the point. What I am
attempting to do here, so I do not confuse my colleagues who do not
have the opportunity or requirement to deal with the drug issue as much
as I do, I am attempting to change the schedule--that is the term of
art--of these two particular drugs, Rohypnol, and another drug which is
referred to as ``Special K,'' and I will get into this in a minute.
They are now the lowest classified drug that you are not able to use.
I want to move them up into the highest classification, which make them
a schedule 1 drug, the most dangerous drugs that are out there. When
you change the schedule, you change all the resources of the Government
as to how much attention they pay to the illicit use of these drugs.
Now, the best time, Mr. President, to target a new drug which is
coming on to the scene is at the front end. For example, I remember
Senator Moynihan in the early 1980's standing on the floor of the
Senate and saying, ``Hey, look, there is a new drug called crack
cocaine.'' It had not been around before. ``There is a new drug called
crack cocaine that is being used heavily in the Bahamas. We are
beginning to see it being imported in New York. We really should set a
priority to deal with that drug.''
Now, that is one of the whole purposes for drug strategy: You pick
priorities and say, ``Look, we will focus on this drug or that drug.''
I know the Presiding Officer knows what happened. He knew in Utah long
before they found out in Iowa, and they have not found out yet in
Delaware, but they knew before him in California about a thing called
methamph- etamines--``meth.'' What most people do not know, but the
distinguished Presiding Officer knows, is that there are more drive-by
shootings in Salt Lake City than any other major city in the country--
one of finest cities, lowest crime rates in the country.
What happened? Along came this drug called ``ice,'' or
methamphetamine. It is a drug that is manufactured, that has properties
that are similar in effect and that are more intense than cocaine. All
of a sudden, the gangs that were manufacturing this synthetic drug, the
Bloods and Crips in Southern California--things got too hot for them
there, so they literally moved to Utah. Then things got too hot for
them in Utah, and they moved up into Montana and Idaho. Now they have
moved, literally, into Iowa, which is a major producing State now.
So what is happening then? It is like a wave. See, ``ice'' started in
Hawaii, and we had notice of it. I have been hollering about it for 6
years now. But we did not focus on it. We always wait until the wave
hits us before we focus on it. Then it hit California, and literally,
you could see it working its way across America.
Now, the reason I bother to say that is that when we have moved
before an abuse of a particular drug has overwhelmed our communities,
we have been successful. The advantages of moving early are clear.
There are fewer pushers trafficking in that drug, and, most important,
there are fewer dependencies, fewer people dependent on the drug, so
there are fewer people needing to go out and push the drug they are
dependent on to make the money to consume the drug. Literally, we can
get it before the networks are in place.
There are organized networks, and there are networks that come about
as a consequence of the consumption, because the people consuming need
to make money to continue to consume their drugs. So what do they do?
They make a deal with their pusher and say, ``I will get you two more
customers.'' It is kind of like the old pyramid scheme. But the problem
is, once the pyramid has been built, we play heck with trying to break
it up at that point.
So today, we are tracking the arrival of two new drugs, Rohypnol, and
a drug called ``Special K''--I will get into that in a moment--as they
begin their slow popularity across the country and begin to show
extreme popularity in several States. So today--now--is the time to act
on trying to snuff them out before they become too popular.
There is a heightened urgency because of one stark fact. These new
drugs--the one with the slang name ``Special K,'' which is an animal
tranquilizer, I might add, and Rohypnol, which is a different drug--are
being used primarily by our children. Now, all of a sudden, everyone
from the administration to the Republican-controlled Congress,
including Democrats in the Congress, has discovered that drug use among
youth is up.
I came to the floor of the U.S. Senate a year and a half ago and laid
out the facts, figures, numbers, and even wrote a report that you all
got stuck on your desk. Understandably, like most reports, none of us
read them. In the report, I start off saying, ``Our Nation has already
seen the first signs of a trend that chills every parent--a rising drug
use among young children. This is the proper focus of our national
crime debate in the months ahead.''
That was a year and a half ago. I laid out all the reasons why it was
there. To anybody involved in the drug problem, dealing with the drug
issue, they are not surprised by the figures. But all of a sudden, in
this election year, Democrats and Republicans alike have found that we
have a problem with youth violence and a problem with drug abuse among
our young.
Well, I am here to tell you all again that we have an additional
problem. We have an additional problem. There are two particular drugs
that are gaining vast popularity among young people, and they have an
incredibly negative effect, which I will describe in a moment, and we
are not targeting them. They are schedule 4 drugs, which means they are
at the bottom of the heap. They are viewed as the least dangerous of
all the things out there. As a consequence of that, Mr. President, what
happens is, local police don't focus on them, Federal resources don't
focus on them, parents don't pay attention to them, nobody looks at
them because they are the thing that is the least problematic. Well,
these two are incredibly pernicious.
So that is why I am calling on the Senate to pass legislation to make
both of these drugs subject to much stricter regulation. This can be
accomplished by moving these drugs to a different schedule under the
Federal Controlled Substance Act. I realize that sounds bureaucratic.
But it is a big deal, how you schedule the drug. This is not a step, I
might add, to be taken lightly, because there is a regulatory procedure
in place for scheduling controlled substances. Unfortunately, this
regulatory procedure can take years to accomplish and change. It has to
be done now. It has to be done now.
In the past decade--to underscore my point here--Congress has taken
legislative action by going around or over the bureaucratic procedure
to reschedule drugs. Guess what? It has worked. In 1984, Mr. President,
I came to the floor
[[Page S10387]]
of the Senate and I said, ``Hey, look, what I am hearing from all the
drug experts in the country is that Quaaludes are being abused in
proportions that we should be very worried about. They are on the verge
of becoming an epidemic that, in fact, will impact upon young people.''
And so, with the help of many of my colleagues, we passed a law to make
Quaaludes, a previously medically approved sedative, a controlled
substance, a schedule 3 controlled substance.
Now, Mr. President, in the decade since that legislation took effect,
Quaalude abuse has dropped significantly. Emergency room Quaalude
overdoses--the best way to measure abuse is by the overdoses in the
hospital emergency rooms--are down 80 percent. It worked; they are down
80 percent from 1984 to 1994.
In legislation I sponsored, which was passed as part of the 1990
Crime Control Act, steroids were reclassified as a schedule 3
substance, scheduling them to more strict controls. I see my friend
from Florida on the floor. He has been deeply involved in these drug
abuse issues. He can tell you that we were hearing from every athletic
director, we were hearing from every coach, we were hearing from
schoolteachers, we were hearing about this incredible abuse of
steroids. All you had to do was pick up any magazine, from Sports
Illustrated to Time magazine, several years ago, in the late 1980's and
early 1990's, and they are saying, ``Wow, this is a big-deal problem.''
It was a big-deal problem. So we rescheduled the drug. Since we
rescheduled the drug, subjecting it to stricter regulation, the annual
use of steroids is down 42 percent in the first 2 years after enacting
this legislation.
Mr. President, I just cite this to point out to the skeptics--like in
California the referendum for the use of marijuana for medical uses--to
the people who have given up--whether it is William Buckley, Mayor
Schmoke, George Shultz, or whoever, who are talking about
legalization--the reason they are giving up on that stuff is not
because they think it is good to legalize it, but they don't think we
can do anything about the problem. Well, we can. It is like any
disease. It is like anything, from breast cancer to any other disease
you can name, the earlier you detect it, the quicker you act on it
before it spreads, the better your chances are of dealing with it.
It seems to me, Mr. President, it is time to legislate stricter
controls for Rohypnol and ``Special K.'' The record-high abuse rates of
the 1970's were accompanied by a unique drug culture, signified by the
presence of what used to be called ``club drugs.'' By a club drug, I
mean a drug popular with youth and young adults who frequent dance
clubs and often mix drugs with alcohol and other substances.
Quaaludes are one of those club drugs. That is the manner in which
they were consumed because it enhanced the high and you were very
mellow.
Recently club drugs have made a resurgence in popularity, and they
are now showing up in both bars and what they call ``raves.'' For some
of you who are not as old as I am, ``raves'' are all-night dance
marathons popular with teenagers.
Club drugs are typified by the way they have suddenly gained
popularity and have become a drug of choice. They have become trendy
among youth, and often these drugs are legally manufactured, but are
being used by youth in ways unintended by the manufacturer and
unapproved by the Food and Drug Administration.
Rohypnol and ``Special K'' are two of the drugs which have recently
hit the youth scene and quickly become popular. Both of these drugs are
very dangerous drugs whose current legal status does not reflect the
dangers inherent in their abuse.
Rohypnol abuse was first documented in the United States in 1993.
Although abuse was first noted in southern Florida, in the past 2 years
abuse has spread rapidly, and Rohypnol activity has been reported in
more than 30 States.
Without rapid and strong Government action, I predict that this abuse
will continue. It will spread. Teenagers find Rohypnol an attractive
drug for a number of reasons. Frighteningly, one of the major reasons
that youth do not see Rohypnol as a dangerous drug is because it has
legitimate medical use in some areas of the world, and they mistakenly
believe that if they are taking that drug in its original packaging
form, the manufacturer indicates that it is both safe and
unadulterated. They think, ``Well, how can that hurt me? Why is that a
problem?''
In addition, there are few existing means for testing and prosecuting
youth for Rohypnol possession and intoxication. The combination of
Rohypnol and alcohol makes it possible for a young person to feel very
intoxicated while remaining under the legal blood-alcohol level for
driving. That is one of the reasons for its popularity.
In addition to gaining attention for the increasing rate of abuse,
Rohypnol has also been the focus of another social problem, a
particularly ugly crime: that is what is referred to as date rape. In
fact, in many areas and in a number of newspaper accounts, Rohypnol is
referred to as the ``date rape drug.''
Let me explain why. This connection between Rohypnol and rape is due
to the drug's disinhibitory effects and its likelihood of causing
amnesia when it is taken with alcohol. Unfortunately, the amnesia
effect is one of the reasons why many people who abuse Rohypnol are
attracted to it. It is commonly reported that people taking Rohypnol in
combination with alcohol typically have blackouts and memory losses
that last 8 to 24 hours. The novelty of the blackouts attract youth,
particularly youth who are combining drugs and alcohol.
In addition, this has led to it being referred to as the ``forget me
pill'' or the ``forget pill.'' Even more frightening, many of the
people are finding the drug attractive as a way of creating blackouts
in other people.
So we have increasing accounts of unscrupulous males in almost every
instance literally--back in our day you would hear the phrase, or my
grandfather used to talk about a Mickey Finn--spiking somebody's drink.
There is a real reward when a young man spikes a drink of a young
woman: (a) she becomes much more uninhibited; and, (b) when he takes
advantage of her, rapes her, has sex with her, molests her, she is
incapable of remembering with enough specificity to prosecute him that
he is the one. Let me give you an example.
She will be able to remember that she has been violated. So the
damage is done physically and psychologically. But when in a courtroom
being asked by a cross-examining defense attorney, ``Well, tell me
where you were exactly. Tell me what he was wearing. Tell me what room
you were in.'' All of the things that go to credibility, she is
incapable of remembering.
So it has become increasingly popular to abuse young women. That is
why they call it--not just young women, any woman. But because it is
used in this club scene, that is the place that it is used most often.
So the combination of a lack of inhibition and memory loss caused by
Rohypnol mixed with alcohol makes women especially vulnerable to being
victims of date rape by people who convince women to take Rohypnol
while drinking, or who put the drug in the woman's drink without her
knowledge.
Mr. KERREY. Will the Senator yield for just a moment?
Mr. BIDEN. Yes.
Mr. KERREY. We have just been notified by the majority leader that it
is his intention to file and say no more votes past 9 o'clock, which
means we would have, unless we are able to finish this bill up tonight
by 9, votes on Friday.
Mr. BIDEN. Mr. President, is there any likelihood that my colleagues
will be willing to accept this amendment?
Mr. KERREY. Apparently there is some Republican on this side of the
aisle that has a problem.
We are talking about the Rohypnol amendment?
Mr. BIDEN. Yes. Because the drug companies, the outfit that
manufactures Rohypnol, does not like it being moved into schedule 1.
I will take 2 more minutes to talk about Ketamine, and then I will
yield the floor, and I am ready for a vote.
Mr. KERREY. Are you going to need a second amendment?
Mr. BIDEN. No. This is all in one amendment.
So let me just briefly explain what Ketamine is. Ketamine is an
animal
[[Page S10388]]
tranquilizer. Ketamine is a hallucinogen that is very similar to PCP.
It is called ``Special K.'' It has become a new, popular ``designer''
drug.
Although the drug has been in existence for several years, its abuse
has rapidly become more prevalent in recent years.
In fact, a club in New Jersey was recently closed by police after it
discovered teens were attending these things called ``raves'' where
club employees distribute bottled water for the purpose of being able
to take this drug called ``Special K.''
In addition to seizures in New Jersey, recent newspaper articles have
mentioned seizures in Maryland, New York, Pennsylvania, Arizona,
California, and Florida. Drug trafficking experts have also cited the
presence of ``Special K'' in Georgia and the District of Columbia and
in my home State of Delaware.
It is considered the successor to PCP, or ``angel dust,'' as it is
known in the streets, due to the similarity of the two drugs' chemical
compositions and mind-altering effects. There have also been reports of
PCP being sold to people who think they are buying ``Special K.''
The bottom line is that this is becoming an incredibly popular drug.
The point I will conclude with is I say to my colleagues that by
moving Rohypnol to schedule 1 of the Federal Controlled Substances Act
and adding ``Special K,'' Ketamine, to schedule 2 of the act, this
legislation will subject both drugs to tough controls, increased
penalties for unlawful activities involving the two drugs, and it will
increase the attention of law enforcement and direct Federal efforts
against this.
Mr. President, It also enhances the penalties for people who abuse
both these drugs.
In an attempt to cooperate as much as I can, I will yield the floor
unless there is somebody who will argue against it.
Mr. KERREY. Would the Senator like to have the yeas and nays?
Mr. BIDEN. I would like to have the yeas and nays.
I would be delighted if it could be accepted. If it can be accepted,
I will not seek a vote.
Mr. SHELBY. At this point we cannot.
Mr. BIDEN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. SHELBY. Mr. President, I would like to tell all the Members that
have been conferring with the majority leader that he wants us to be
out of here at 9 o'clock. There are a number of amendments. We have
made a lot of progress. People have come over here. I know Senator
McCain is ready to move. He has been detained somewhere else. In just a
few minutes he will get moving. There are others who have been called
to the floor. If we are not through at 9 o'clock--which is in 2 hours
and 20 minutes--the majority leader has informed me and asked me to
share with everybody that we will be in session tomorrow on this bill.
Mr. KERREY addressed the Chair.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. KERREY. Mr. President, to underscore again, we had an amendment
earlier that Senator Kohl brought down. We were ready to vote on it. A
Member somewhere--Lord knows where they are --said, no, we want to come
down and speak against it. They still are not here.
We would have accepted this amendment that Senator Biden just
offered. We have a rollcall vote. I have a couple Members who want to
speak against. They are not here. It is quarter to 7. It is one thing
to say I want a chance to offer an amendment but if, for gosh sakes,
all you want to do is speak on the amendment, put a statement in. Let
us go to a vote. Do not tie this thing up forever just because you want
to come and make a statement. If you are not prepared to come down to
the floor to talk, then put in a written statement. I will put a
written statement in for you, speak passionately for you, whatever it
takes, but let us get to these votes.
Mr. McCAIN. Mr. President, I ask unanimous consent to lay aside the
pending amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 5266
(Purpose: To increase funding for drug interdiction efforts by
$32,769,000)
Mr. McCAIN. Mr. President, I have amendment No. 5266 at the desk. I
ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Arizona [Mr. McCain], for himself and Mr.
Helms, proposes an amendment numbered 5266.
Mr. McCAIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 22, line 14, strike ``$4,085,355,000'' and insert
in lieu thereof ``$4,052,586,000'';
On page 42, line 26, strike ``$103,000,000'' and insert in
lieu thereof ``$135,769,000''.
Mr. McCAIN. Mr. President, I am aware, as I propose this amendment,
there are I believe a couple of other speakers who wanted to come over
and speak in opposition to the amendment. I hope they will display the
courtesy to the managers of the bill by coming over so that we can
complete our work by 9 o'clock this evening.
Mr. President, this amendment would increase funding for the High-
Intensity Drug Trafficking Areas Program by $32.7 million. That $32.7
million is derived by cutting the tax law enforcement appropriated
level to the amount that was passed by the House.
Sunday's Washington Post stated:
President Clinton signed Presidential decision Directive
No. 14 shifting U.S. antidrug efforts away from intercepting
cocaine as it passed through Mexico and the Caribbean and
instead attacking the drug supply at its sources in Colombia,
Bolivia, and Peru.
The two policy changes marked 1993 as a watershed year in
the hemispheric war on drugs and now the results are in.
Mexico became the main gateway into the United States for
illegal narcotics . . . and teenage drug use in the United
States doubled.
Let me repeat that, Mr. President.
Mexico became the main gateway way into the United States
for illegal narcotics . . . and teenage drug use in the
United States doubled.
Mr. President, the problem of teenage drug use is growing rapidly.
According to published reports, drug use by teens in general is up 105
percent, teenage marijuana use is up by 141 percent, and teenage
cocaine use has risen a startling 166 percent. Clearly, something must
be done.
The High-Intensity Drug Trafficking Areas Program was established by
the Antidrug Abuse Act of 1988 and provides Federal assistance to State
and local law enforcement agencies in the areas of our Nation most
affected by drug trafficking. This program has been very successful.
It is clear that we must do more, much more. The fact that drug use
among teenagers has doubled is a startling and disturbing statistic. It
should cause us all to stop what we are doing and question our
children's future. The facts are clear. Their future will be in
jeopardy if the drug epidemic continues unabated.
Rhetoric is not going to solve the problem. The President has tried
the political approach. He gutted the drug czar's office and changed
our Nation's drug interdiction strategy. Now that an election is
approaching and startling facts regarding the skyrocketing use of drugs
are in the press, the President is paying this issue lip service. This
is not enough.
We need action. We need to curb drug use. That is exactly what this
amendment will do. It will fund more police on our border. It will fund
more interdiction programs. It will fund a special project to curb the
production and distribution of methamphetamines in the Midwest.
According to Monday's Washington Post, the President wrote:
In the national drug control strategy, I asked Congress to
be a bipartisan partner and provide the resources we need to
get the job done. That is why I urge you to ensure that
Congress fully funds my antidrug budget requests before you
conclude your work and return home.
I think we should comply with the President's request. He said, ``I
urge you to ensure that Congress fully funds my antidrug budget
requests before you conclude your work and return home.''
This amendment represents a good start. I admit the $32 million this
amendment would add to our drug
[[Page S10389]]
interdiction program will not solve the problem. But it is a necessary
first step.
We must fund these programs. As the data demonstrates, we are clearly
not doing enough now.
The money to fund this increase in our drug interdiction program is
derived by funding the IRS tax auditor section of the bill at the
House-passed level rather than at the higher Senate amount. The House
believes the IRS can fulfill its duties on the amount appropriated,
especially in the auditor section. I am inclined to agree and believe
the Senate add-on will be better spent on our drug control efforts. The
effects of this cut have been incorporated into the bill and will not
cause any budgetary problems.
Mr. President, we have to act on this matter. The future of our young
people depends on stopping our country's drug epidemic, and this
amendment I believe is a reasonable restraint and logical first step. I
hope it will be adopted.
In deference to the fact we are working on a 9 o'clock time
constraint, in deference to the fact that my colleague from Georgia, I
believe, Senator Coverdell, is waiting here to speak, and we have other
amendments, I will abbreviate my remarks. But the abbreviation of my
remarks should not be interpreted as a lack of concern or a lack of
priority that I feel about this drug problem in America.
I happen to come from a State that cocaine is pouring through.
Unfortunately, it is not all going through my State. A lot of it is
stopping in Arizona. Tragically, in the poorer sections of Phoenix, AZ,
and Tucson, AZ, and around my State the use of drugs is dramatically on
the increase. I have met with individuals who have had personal
experiences, residents of these areas, and they are deeply alarmed and
deeply concerned. They blame the rise of gang activities on the
economic aspects of the sale of drugs. They blame the deaths and
wounding of young individuals on gang wars and gang-related activities.
They blame a great deal of the problems that exist in their
neighborhoods on this horrific drug problem that is going up and up and
up.
I had hoped that this amendment would have been accepted. I
understand that Senator Shelby may have a motion to table this
amendment.
Mr. KERREY. Mr. President, will the Senator yield?
Mr. McCAIN. Yes.
Mr. KERREY. Sometimes brevity is the best thing to do. I must say
initially perhaps it is pride of authorship; when you put a bill
together yourself, you think nobody can make an improvement upon it. I
have had a lot of experience with it, and especially in the Midwest we
have a very serious methamphetamine problem in Nebraska.
I just checked with the chairman's staff person on this, and I
believe we would be prepared to accept this amendment.
Mr. McCAIN. I thank the Senator.
I do thank my friend from Nebraska. And I hope my friend from
Nebraska will keep in mind its importance as they go to conference.
I thank my friend. I am grateful to my friend from Nebraska.
I ask unanimous consent to add Senator Coverdell as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. I thank my friend from Nebraska. I do want to point out
that as on many issues the Senator from Nebraska has been a leader
against this fight in the drug war and I thank him for it.
Mr. HELMS. Mr. President, I am pleased to cosponsor the amendment of
the distinguished Senator from Arizona, [Mr. McCain] to provide an
additional $32.7 million dollars to fight the deluge of illegal hard
drugs into the United States. This additional funding will go to the
High-Intensity Drug Trafficking Area Program, the purpose of which is
to provide increased Federal assistance to the most critical drug
trafficking areas in our country.
This amendment is fully offset by a reduction in the Senate
recommended IRS enforcement funding level to the level passed by the
House.
Mr. President, the pending amendment is another necessary step toward
recommitting our government and the American people to the war on
drugs. It supplements an amendment, builds on one I offered last week
during consideration of the VA-HUD appropriations bill. The Senate
unanimously passed that amendment to provide an additional $20 million
to fight drug use in public housing projects. I hope we will see that
same level of support for the pending amendment.
This amendment is consistent with the testimony of the experts who
testified at the recent Foreign Relations Committee hearing on
international drug trafficking. At that hearing, over which I presided,
two North Carolina law enforcement officers, Charlotte- Mecklenburg
Police Dept. Sgt. Terry Sult and Sheriff B.J. Barnes of Guilford
County, NC, along with a member of the L.A. gang known as the
``bloods,'' described in graphic detail, the devastating effects of the
drug trade at the local level. They also confirmed what national
experts, such as John Walters, the deputy drug czar in the Bush
administration, who also testified at our hearing, told us about
changes in the distribution of drugs at the national level.
Mr. President, these experts all spoke of the increasing influx of
illegal narcotics, the vast majority of which are produced in South
America, into their communities. They also addressed the violence
associated with the drug trade and the despicable practice of employing
ever younger children in the peddling of this poison. According to the
DEA, much of our Nation's violent crime, particularly among juveniles,
is linked to drug trafficking and drug use. Recent statistics have
shown that over one-third of all violent acts and almost half of all
homicides among juveniles are linked to drugs.
Recent drug abuse statistics have confirmed what many of us already
knew. Namely, that our Nation has been losing ground in the war against
drugs. The most recent annual survey of drug use among our Nation's
youth revealed some shocking statistics. Just two examples from the
survey will demonstrate the enormity of the problem we now face. For
example, the survey found:
First, drug use by U.S. teenagers skyrocketed 105 percent between
1992 and 1995; and
Second cocaine use among teens increased 166 percent in the 1 year
from 1994 to 1995.
These statistics reflect a continued breakdown in our social fabric.
The damage this poison inflicts is measured not merely in terms of
dollars and cents, but more importantly, in lost and squandered lives.
Each year, illegal drugs claim the lives of 25,000 Americans and
devastate countless thousands of family and friends who are left
behind.
Mr. President, while there is no single solution to the problem of
illegal drug use, it is abundantly clear that we must redouble our
efforts if we are to stop the loss of yet another generation to the
scourge of illegal drugs. The McCain amendment will focus resources on
one of the areas that they are most urgently needed--in those cities
and ports of entry that are most heavily impacted by drug-trafficking.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 5266) was agreed to.
Mr. KERREY. Mr. President, I move to reconsider the vote.
Mr. McCAIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. KERREY. Mr. President, I know the Senator from Florida is here to
offer an amendment. I wonder if he can tell me how much time he has,
because what I would like to do is propound a unanimous-consent
request. We have two amendments up here that are waiting for votes. We
are waiting for Members to come down and speak. In one case, it was an
hour ago they were on the way down here. I would like to propound a
unanimous-consent request that we proceed to a vote on the Kohl
amendment, a 15-minute rollcall vote on the Kohl amendment, immediately
followed thereafter by a 15-minute vote on the Biden amendment.
How long did the Senator want to speak?
Mr. GRAHAM. Mr. President, I believe 15 minutes.
Mr. KERREY. Mr. President, I ask unanimous consent the Kohl amendment
vote begin at 7:20, immediately followed by the rollcall vote on the
Biden amendment.
[[Page S10390]]
The PRESIDING OFFICER. Is there objection?
Mr. McCAIN. I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Florida.
Mr. GRAHAM. Mr. President, I have two unanimous-consent requests.
First, that Ms. Nani Coloretti, of our office, be allowed the privilege
of the floor during the consideration of the Treasury-Postal
appropriations bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM. And, second, I ask unanimous consent to be listed as a
cosponsor of the amendment offered by Senator McCain.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KERREY. Will the Senator yield for a moment so I can inform
colleagues, once again, the objection was offered for the purpose of
allowing Senators to come over to offer a perfecting amendment on the
Biden amendment. We have 2 hours and 5 minutes. Otherwise, we get votes
tomorrow.
The PRESIDING OFFICER. The Senator from Florida has the floor.
Mr. GRAHAM. I ask the pending amendments be laid aside for purposes
of offering an amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 5245
(Purpose: To ensure medicare beneficiaries have emergency and urgent
care provided and paid for by establishing a definition of an emergency
medical condition that is based upon the prudent layperson standard)
Mr. GRAHAM. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Florida [Mr. Graham] proposes an amendment
numbered 5245.
Mr. GRAHAM. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place, insert the following:
SEC. ____. REQUIREMENTS FOR MEDICARE MANAGED CARE.
(a) Access to Emergency Services.--Subparagraph (B) of
section 1876(c)(4) of the Social Security Act (42 U.S.C.
1395mm(c)(4)) is amended to read as follows:
``(B) meet the requirements of section 3 of the Access to
Emergency Medical Care Act of 1995 with respect to members
enrolled with an organization under this section.''.
(b) Timely Authorization for Promptly Needed Care
Identified as a Result of Required Screening Evaluation.--
Section 1876(c) of such Act (42 U.S.C. 1395mm(c)) is amended
by adding at the end the following:
``(9)(A) The organization must provide access 24 hours a
day, 7 days a week to individuals who are authorized to make
any prior authorizations required by the organization for
coverage of items and services (other than emergency
services) that a treating physician or other emergency
department personnel identify, pursuant to a screening
evaluation required under section 1867(a), as being needed
promptly by an individual enrolled with the organization
under this part.
``(B) The organization is deemed to have approved a request
for such promptly needed items and services if the physician
or other emergency department personnel involved--
``(i) has made a reasonable effort to contact an individual
described in subparagraph (A) for authorization to provide an
appropriate referral for such items and services or to
provide the items and services to the individual and access
to the person has not been provided (as required in
subparagraph (A)), or
``(ii) has requested such authorization from the person and
the person has not denied the authorization within 30 minutes
after the time the request is made.
``(C) Approval of a request for a prior authorization
determination (including a deemed approval under subparagraph
(B)) shall be treated as approval of a request for any items
and services that are required to treat the medical condition
identified pursuant to the required screening evaluation.
``(D) In this paragraph, the term `emergency services'
means--
``(i) health care items and services furnished in the
emergency department of a hospital (including a trauma
center), and
``(ii) ancillary services routinely available to such
department,
to the extent they are required to evaluate and treat an
emergency medical condition (as defined in subparagraph (E))
until the condition is stabilized.
``(E) In subparagraph (D), the term `emergency medical
condition' means a medical condition, the onset of which is
sudden, that manifests itself by symptoms of sufficient
severity, including severe pain, that a prudent layperson,
who possesses an average knowledge of health and medicine,
could reasonably expect the absence of immediate medical
attention to result in--
``(i) placing the person's health in serious jeopardy,
``(ii) serious impairment to bodily functions, or
``(iii) serious dysfunction of any bodily organ or part.''.
``(F) In subparagraph (D), the term `stabilizationn' means,
with respect to a emergency medical condition, that no
material deteriorationn of the condition is likely, within
reasonable medical probability, to result or occur before an
individual can be transferred in compliance with the
requirements of section 1867 of the Social Security Act.''.
(c) Effective Date.--The amendments made by subsections (a)
and (b) shall be effective for contract years beginning on or
after the date of the enactment of this Act.
Mr. GRAHAM. Mr. President, Congress has created an anomaly, a catch-
22 situation which occurs in one of the most traumatic areas of our
society, the hospital emergency room. The anomaly is that under the
Federal Emergency Medical Treatment Act, physicians in hospitals which
participate in Medicare must provide ``an appropriate medical screening
examination to any patient who presents himself or herself in an
emergency room without regard to insurance coverage or ability to pay.
If the emergency condition exists, the patient must be stabilized
before transfer or release.''
So, the hospital which provides Medicare services is required to
receive any persons presenting themselves to the emergency room and to
provide initial stabilization and screening, without regard to the
persons' ability to pay.
Second, health maintenance organizations, which, today, provide
Medicare services for almost 1 out of 10 Medicare beneficiaries, are
not required to reimburse the emergency room if it performs the
services that we have statutorily required the emergency room and its
professional staff to perform.
Who is affected by this anomaly? Who is caught in the catch-22 which
we have created? Obviously, it is the Medicare beneficiaries, the
Medicare beneficiaries who, as we have increasingly encouraged them to
do, have signed a contract with a health maintenance organization and
now have found that, after having gone to the emergency room, had
services provided, finds that they are denied reimbursement and become
financially obligated for what, in many cases, is a very substantial
bill.
Mr. President, I have, and I would like to offer as one of several
items to appear immediately after my remarks, a letter from a health
care organization in Clinton Township, MI, St. John Emergency
Physicians. They outline an example of this instance in which a 46-
year-old female patient presented herself to their emergency room
department. The patient was traveling in a car with her husband when
she experienced a sudden onset of shortness of breath and collapsed.
She was rushed to the emergency department in an ambulance.
Despite the best efforts of the emergency room personnel, the
patient, unfortunately, did not respond to any of the emergency
treatment. She was pronounced dead. The cause of death was cardio-
pulmonary arrest. The patient belonged to a HMO organization. They
refused coverage and have sent a bill of $1,200 to the widower of the
deceased patient.
That is illustrative of situations which relate to emergency rooms in
HMO's.
You might say this certainly is an anomaly; this is aberrant; this
cannot be a recurring condition. In fact, presently 60 percent of all
of the claims disputed between Medicare beneficiaries and managed care
plans involve emergency services. Sixty percent of the disputes between
Medicare beneficiaries and an HMO plan relate to circumstances that
revolve around emergency room services.
The purpose of this amendment is to resolve that dispute. We are not
doing this for the first time. In November 1995, this Senate, by
unanimous vote, adopted this amendment as part of the Medicare
component of the Balanced Budget Act.
We are not the only ones to be concerned about this. Increasingly,
States are adopting provisions to resolve this dispute between HMO
patients and emergency rooms. To date, Maryland, Virginia, and the
State of Arkansas, have all adopted legislation that relates to this
subject, and action is
[[Page S10391]]
being taken by the leaders of the industry, of the health maintenance
organizations. Washington Health Week of August 26, 1996, states that:
HMO patients who make emergency room visits may benefit
from the unlikely alliance of a leading HMO company and an
emergency physicians group, jointly pushing for federal
standards that would make it harder to deny coverage for such
services.
Kaiser Foundation Health Plan and the American College of
Emergency Physicians are advocating standards for emergency
care coverage that include the controversial ``prudent
layperson'' standard.
It goes on to say:
The jointly developed standards would require managed care
plans to cover non-emergency services provided in an
emergency department if a prudent lay person would reasonably
think that his or her condition needed emergency treatment.
HMOs would have to cover medically necessary ER [emergency
room] services without preauthorization. Emergency MDs
[physicians] would have to notify the plan within 30 minutes
after the enrollee's condition is stabilized to obtain
authorization for promptly needed services. HMO's would have
30 minutes to respond. If the HMO and the doctor couldn't
agree on a post-stabilization treatment, the plan would have
to arrange alternative treatment.
Mr. President, that is the essence of the amendment we have offered.
It is an amendment which the Senate has already adopted. It is an
amendment which is increasingly being adopted by States, not just for
Medicare patients but for all patients who are members of a health
maintenance organization. And it is the position that is now being
advocated by one of the leading HMO's in the country and the College of
Emergency Physicians.
I recently had an experience, as I do on a monthly basis, taking a
different job. In this case, it was working with the fire and rescue
department of Palm Beach County, FL, in an area of the county which has
a large number of Medicare beneficiaries in their population. I was at
one of the fire and rescue stations which said they got as many as 40
calls in a 24-hour period for emergencies.
I asked them, ``What would you do, for instance, if you came to the
home of an older person, a home of any person, who was suffering from
chest pains?''
Their answer was: ``Our instructions are to provide stabilization and
immediately deliver that individual to an emergency room. We are not to
make any independent attempts to assess what the cause of those chest
pains may be. We rely on the reasonable judgment of this lay person
that those chest pains would be symptomatic of a serious life-
threatening condition. We deliver that individual into the hands of
persons who are capable of making the judgment as to whether, in fact,
that is the circumstance.''
Mr. President, that is the essence of this amendment. It is to use
the standard of a prudent lay person who felt that their condition was
such that it required emergency medical evaluation, and if that
standard of a prudent lay person is met, then that individual should be
eligible, or the physicians or the emergency room which provided the
services, should be eligible for the reimbursement for the services
which they provide.
As I say, that is the standard the Senate has adopted. It is the
standard increasingly States have adopted. It is the standard which the
leaders in the health maintenance organization industry and the College
of Emergency Physicians recommended be adopted.
I urge the adoption of this amendment which will give peace of mind
to millions of Americans and will help resolve the largest single
source of contention between Medicare beneficiaries, for whom we have a
particular responsibility, and health maintenance organizations.
Mr. President, I ask unanimous consent that several articles and a
letter to which I referred be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
St. John Emergency Physicians, P.C.,
Clifton Township, MI, October 26, 1995.
Hon. Spencer R. Abraham,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Abraham: As you know, the Medicare portion of
Budget Reconciliation is currently being debated upon the
Senate Floor. I write to you with an urgent request to
support an amendment to be offered by Senator Bob Graham of
Florida regarding access to emergency medical services.
an example of my own from michigan
I am the Vice Chief of Emergency Medicine at St. John
Hospital & Medical Center in Detroit. On March 21st of this
year a 46 year old female presented to our emergency
department. The patient was traveling in a car with her
husband when she experienced a sudden onset of shortness of
breath and then collapsed. She was rushed to our emergency
department by ambulance. To make a sad story short, despite
the best efforts of my colleague and the personnel in our
department, the patient unfortunately did not respond to any
sort of emergency treatment. She was pronounced dead. Cause
of death was cardiopulmonary arrest. (I've attached a copy of
the notes from this event.)
The patient belonged to Blue Care Network, a health
maintenance organization for Blue Cross and Blue Shield of
Michigan. Blue Care Network has denied coverage for these
services because the services were not pre-authorized. What
is even more disturbing is that the patient's husband has
been left with a bill of over $1,200.00 during this time of
personal loss.
Senator, this example speaks for itself. Even with the best
emergency medical transport and treatment available to us,
she died. There was no time to call the HMO ``gatekeeper'' to
get permission. There was no time for anyone to do anything
but to try and save this poor young woman's life. The denial
associated with this case is simply unbelievable.
This is why Senator Bob Graham's amendment concerning the
definition of an emergency is necessary. I urge your support
of his effort when he offers his amendment later today or
tomorrow. Thank you for your consideration.
Sincerely,
James M. Fox, M.D.,
Vice Chief,
Department of Emergency Medicine.
____
HMO, Emergency Docs Join to Seek Federal Standards for ER Coverage
HMO patients who make emergency room (ER) visits may
benefit from the unlikely alliance of a leading HMO company
and an emergency physician group jointly pushing for federal
standards that would make it harder to deny coverage for such
services.
Kaiser Foundation Health Plan and the American College of
Emergency Physicians are advocating standards for emergency
care coverage that include the controversial ``prudent
layperson'' standard.
ER coverage mandates, particularly the prudent layperson
language, have been a source of conflict between physicians
and the managed care industry.
Kaiser, the nation's second largest HMO chain, is trying to
get other managed care companies to support the standards,
but doesn't have any takers yet. The national HMO chain broke
with the managed care industry on the issue because at least
12 states have enacted varying ER coverage mandates, and
compliance with a national standard would be preferable.
The jointly developed standards would require managed care
plans to cover non-emergency services provided in an
emergency department if a prudent layperson would reasonably
think that his or her condition needed emergency treatment.
HMOs would have to cover medically necessary ER services
without preauthorization. Emergency MDs would have to notify
the plan within 30 minutes after the enrollee's condition is
stabilized to obtain authorization for promptly needed
services; HMOs would have 30 minutes to respond. If the HMO
and doctor couldn't agree on a post-stabilization treatment,
the plan would have to arrange alternate treatment.
Rep. Ben Cardin (D-Md) introduced legislation (HR 2011),
with over 140 co-sponsors, that's similar to what Kaiser and
the emergency docs are advocating. Although it is not
expected to pass this year, the issue expected to reemerge in
1997.
____
[From the New York Times, July 9, 1995]
H.M.O's Refusing Emergency Claims, Hospitals, Assert--Two Missions in
Conflict
`managed care' groups insist they must limit costs--doctors are
frustrated
(By Robert Pear)
Washington, July 8.--As enrollment in health maintenance
organizations soars, hospitals across the country report that
H.M.O.'s are increasingly denying claims for care provided in
hospital emergency rooms.
Such denials create obstacles to emergency care for H.M.O.
patients and can leave them responsible for thousands of
dollars in medical bills. The denials also frustrate
emergency room doctors, who say the H.M.O. practices
discourage patients from seeking urgently needed care. But
for their part, H.M.O.'s say their costs would run out of
control if they allowed patients unlimited access to hospital
emergency rooms.
How H.M.O.'s handle medical emergencies is an issue of
immense importance, given recent trends. Enrollment in
H.M.O.'s doubled in the last eight years, to 51 million,
partly because employers encouraged their use as a way to
help control costs.
In addition, Republicans and many Democrats in Congress say
they want to increase the use of H.M.O.'s because they
believe that such prepaid health plans will slow the growth
of Medicare and Medicaid, the programs for the elderly and
the poor, which serve 73 million people at a Federal cost of
$267 billion this year.
Under Federal law, a hospital must provide ``an appropriate
medical screening examination'' to any patient who requests
care in its
[[Page S10392]]
emergency room. The hospital must also provide any treatment
needed to stabilize the patient's condition.
Dr. Toni A. Mitchell, director of emergency care at Tampa
General Hospital in Florida, said: ``I am obligated to
provide the care, but the H.M.O. is not obligated to pay for
it. This is a new type of cost-shifting, a way for H.M.O.'s
to shift costs to patients, physicians and hospitals.''
Most H.M.O.'s promise to cover emergency medical services,
but there is no standard definition of the term. H.M.O.'s can
define it narrowly and typically reserve the right to deny
payment if they conclude, in retrospect, that the conditions
treated were not emergencies. Hospitals say H.M.O.'s often
refuse to pay for their members in such cases, even if H.M.O.
doctors sent the patients to the hospital emergency rooms.
Hospitals then often seek payment from the patient.
Dr. Stephan G. Lynn, director of emergency medicine at St.
Luke's-Roosevelt Hospital Center in Manhattan, said: ``We are
getting more and more refusals by H.M.O.'s to pay for care in
the emergency room. The problem is increasing as managed care
becomes a more important source of reimbursement. Managed
care is relatively new in New York City, but it's growing
rapidly.''
H.M.O.'s emphasize regular preventive care, supervised by a
doctor who coordinates all the medical services that a
patient may need. The organizations try to reduce costs by
redirecting patients from hospitals to less expensive sites
like clinics and doctors' offices.
The disputes over specific cases reflect a larger clash of
missions and cultures. An H.M.O. is the ultimate form of
``managed care,'' but emergencies are, by their very nature,
unexpected and therefore difficult to manage. Doctors in
H.M.O.'s carefully weigh the need for expensive tests or
treatments, but in an emergency room, doctors tend to do
whatever they can to meet the patient's immediate needs.
Each H.M.O. seems to have its own way of handling
emergencies. Large plans like Kaiser Permanente provide a
full range of emergency services around the clock at their
own clinics and hospitals. Some H.M.O.'s have nurses to
advise patients over the telephone. Some H.M.O. doctors take
phone calls from patients at night. Some leave messages on
phone answering machines, telling patients to go to hospital
emergency rooms if they cannot wait for the doctors' offices
to reopen.
At the United Healthcare Corporation, which runs 21
H.M.O.'s serving 3.9 million people. ``It's up to the
physician to decide how to provide 24-hour coverage,'' said
Dr. Lee N. Newcomer, chief medical officer of the
Minneapolis-based company.
George C. Halvorson, chairman of the Group Health
Association of America, a trade group for H.M.O.'s, said he
was not aware of any problems with emergency care. ``This is
totally alien to me,'' said Mr. Halvorson, who is also
president of Health-Partners, an H.M.O. in Minneapolis.
Donald B. White, a spokesman for the association, said, ``We
just don't have data on emergency services and how they're
handled by different H.M.O.'s''.
About 3.4 million of the nation's 37 million Medicare
beneficiaries are in H.M.O.'s. Dr. Rodney C. Armstead,
director of managed care at the Department of Health and
Human Services, said the Government had received many
complaints about access to emergency services in such plans.
He recently sent letters to the 164 H.M.O.'s with Medicare
contracts, reminding them of their obligation to provide
emergency care.
Alan G. Raymond, vice president of the Harvard Community
Health Plan, based in Brookline, Mass., said, ``Employers are
putting pressure on H.M.O's to reduce inappropriate use of
emergency services because such care is costly and episodic
and does not fit well with the coordinated care that H.M.O.'s
try to provide.''
Dr. Charlotte S. Yeh, chief of emergency medicine at the
New England Medical Center, a teaching hospital in Boston,
said: H.M.O.'s are excellent at preventive care, regular
routine care. But they have not been able to cope with the
very unpredictable, unscheduled nature of emergency care.
They often insist that their members get approval before
going to a hospital emergency department. Getting prior
authorization may delay care.
``In some ways, it's less frustrating for us to take care
of homeless people than H.M.O. members. At least, we can do
what we think is right for them, as opposed to trying to
convince an H.M.O. over the phone of what's the right thing
to do.''
Dr. Gary P. Young, chairman of the emergency department at
Highland Hospital in Oakland, Calif., said H.M.O.'s often
directed emergency room doctors to release patients or
transfer them to other hospitals before it was safe to do so.
``This is happening every day,'' he said.
The PruCare H.M.O. in the Dallas-Forth Worth area, run by
the Prudential Insurance Company of America, promises ``rock
solid health coverage,'' but the fine print of its members'
handbook says, ``Failure to contact the primary care
physician prior to emergency treatment may result in a denial
of payment.''
typically, in an H.M.O., a family doctor or an internist
managing a patient's care serves as ``gatekeeper,''
authorizing the use of specialists like cardiologists and
orthopedic surgeons. The H.M.O.'s send large numbers of
patients to selected doctors and hospitals; in return, they
receive discounts on fees. But emergencies are not limited to
times and places convenient to an H.M.O.'s list of doctors
and hospitals.
H.M.O.'s say they charge lower premiums than traditional
insurance companies because they are more efficient. But
emergency room doctors say that many H.M.O.'s skimp on
specialty care and rely on hospital emergency rooms to
provide such services, especially at night and on weekends.
Dr. David S. Davis, who works in the emergency department
at North Arundel Hospital in Glen Burnie, Md., said:
``H.M.O.'s don't have to sign up enough doctors as long as
they have the emergency room as a safety net. The emergency
room is a backup for the H.M.O. in all it operations.'' Under
Maryland law, he noted, an H.M.O. must have a system to
provide members with access to doctors at all hours, but it
can meet this obligation by sending patients to hospital
emergency rooms.
To illustrate the problem, doctors offer this example: A
57-year-old man wakes up in the middle of the night with
chest pains. A hospital affiliated with his H.M.O. is 50
minutes away, so he goes instead to a hospital just 10 blocks
from his home. An emergency room doctor orders several common
but expensive tests to determine if a heart attack has
occurred.
The essence of the emergency physician's art is the ability
to identify the cause of such symptoms in a patient whom the
doctor has never seen. The cause could be a heart attack. But
it could also be indigestion, heartburn, stomach ulcers,
anxiety, a panic attack, a pulled muscle or any of a number
of other conditions.
If the diagnostic examination and tests had not been
performed, the hospital and the emergency room doctors could
have been cited for violating Federal law.
But in such situations, H.M.O.'s often refuse to pay the
hospital, on the ground that the hospital had no contract
with the H.M.O., the chest pain did not threaten the
patient's life or the patient did not get authorization to
use a hospital outside the H.M.O. network.
Representative Benjamin L. Cardin, Democrat of Maryland,
said he would soon introduce a bill to help solve these
problems. The bill would require H.M.O.'s to pay for
emergency medical services and would establish a uniform
definition of emergency based on the judgment of ``a prudent
lay person.'' The bill would prohibit H.M.O.'s from requiring
prior authorization for emergency services. A health plan
could be fined $10,000 for each violation and $1 million for
a pattern of repeated violations.
The American College of Emergency Physicians, which
represents more than 15,000 doctors, has been urging Congress
to adopt such changes and supports the legislation.
When H.M.O.'s deny claims filed on behalf of Medicare
beneficiaries, the patients have a right to appeal. The
appeals are heard by a private consulting concern, the
Network Design Group of Pittsford, N.Y., which acts as agent
for the Government. The appeals total 300 to 400 a month, and
David A. Richardson, president of the company, said that a
surprisingly large proportion--about half of all Medicare
appeals--involved disagreements over emergencies or other
urgent medical problems.
____
[From the Miami Herald, July 30, 1995]
HMOs in the ER: A View From the Trenches
(By Paul R. Lindeman)
I arrived for my 12-hour shift in the Emergency Department
at 7 p.m. As the departing physician and I went over the
cases of the current patients, I was told the woman in Room 2
was being transferred to a psychiatric facility. The patient
was pregnant, addicted to crack cocaine and had been assessed
as suicidal by a psychiatrist.
An obstetrician was required to care for the patient during
her stay at the mental health facility. The only two groups
of practicing obstetricians who were on this woman's HMO
``panel'' and on staff at this facility both refused to
accept this high-risk case. That left this unfortunate woman,
and our staff, caught in the ``never-never land'' of managed
care.
When I left the Emergency Department at 7:30 the following
morning, she was still in Room 2. It took hospital
administrators and attorneys all day to arrange disposition,
and the patient was eventually transferred--at 6:30 that
evening.
Managed-care health plans typically limit choice of doctors
and hospitals and attempt to closely monitor services
provided. Their goal is to curb unnecessary tests and
hospitalizations to keep costs down. In the case of for-
profit managed-care companies, the additional purpose is
obvious. But what happens when managed care meets the
emergency room?
Federal law requires a screening exam at emergency
facilities, but HMOs are not required to pay. By exploiting
this fact, managed care is able to shift costs onto
hospitals, doctors and policyholders, thereby ``saving''
money.
Consider the case of a 50-year-old male who awakes at 4
a.m. with chest pain and goes to the hospital 10 blocks
away--instead of his HMO hospital an extra 30 minutes away.
After examination and testing, it's determined that the
patient is not having a heart attack and that it's safe for
him to go home.
His diagnosis is submitted on a claim form with a code for
``gastritis.''
[[Page S10393]]
His insurance company denies payment, stating that
``gastritis'' is not an emergency. As a result, the hospital
and the company who employs the emergency department
physician both bill the patient.
While this ``retrospectoscope'' is widely employed and an
industry standard for denying payment, there are many other
``savings'' techniques. For instance, many HMOs require
``pre-authorization'' to treat a patient in the ER.
Consider now a 60-year-old female who arrives at the
emergency room complaining also of chest pain. The triage
nurse examines the patient, obtaining a brief history and
vital signs. A call is placed to the insurance company and a
recorded message is obtained without specific instruction
regarding emergencies. The patient is treated but the payment
is denied. Reason: Authorization was never obtained.
Here's an alternate scenario, same patient, again waiting
for pre-authorization. (Noncritical patients often wait for
more than an hour.) This time ``the insurance company''
answers the phone. Reading from a list, a series of questions
is asked, limited almost exclusively to obtaining recorded
numbers. Based on these numbers, the individual speaking for
the company determines that it is safe for the patient to be
transferred to its hospital. The emergency physician
disagrees. The patient stays and is admitted to the hospital.
The HMO denies payment for the ER visit and the 24-hour
hospitalization, stating that the patient should have been
transferred. Again, the patient/policyholder, who pays a
monthly premium for his or her insurance, is billed for all
hospital and physician services.
The representative for the insurance company who decides on
pre-authorization can range from someone with no medical
background at all to another physician (albeit with a vested
economic incentive). Generally the level of expertise is
somewhere between this. Thus, the near-Orwellian scenario
frequently plays out whereby a doctor who has seen and
examined a patient is trying to convince a nurse, over the
telephone, that a patient is sick.
Rudy Braccili Jr., business operations director for the
North Broward Hospital District, was quoted in The Herald as
saying. ``It's just a game they play to avoid paying, and
it's one of the ways they save money. They do not see the
realities of people who in the middle of the night come into
emergency rooms.'' He estimates that North District hospitals
have lost millions of dollars a year because of HMOs'
reluctance to pay bills.
Part of the problem is that what managed-care organizations
are trying to do is often quite difficult: determine
prospectively which patients are truly deserving of
emergency-room care. Indeed, this may in fact be a Catch-22.
I know of no way to accurately discern acute appendicitis
from a ``tummy ache'' without a history and physical
examination. Furthermore, medicine does not always lend
itself to black and white. For instance, is a woman who
screams and gyrates hysterically as a result of a squirming
cockroach in her car an emergency?!
Unfortunately, problems with HMOs in the ER go beyond cost
shifting and denial of payment. They often turn an otherwise
brief encounter into a harrowing ordeal. Another example from
``the trenches'' is illustrative.
Our patient this time is an 85-year-old woman with a hip
fracture. But instead of being admitted, her HMO mandates
that she be transferred across town to the emergency
department at another facility where they contract their
surgical hip repairs. The patient waits three hours for the
HMO ambulance service, which is ``backed up.''
Consumers note: Had the patient not sold her Medicare
privileges to this HMO, she would have been admitted to our
hospital uneventfully in a fraction of the time required to
complete her managed-care sojourn.
No matter how well trained or talented the emergency
physician, there are also times when she or he requires the
urgent services of a consultant to provide definitive care
for a patient (for instance, vascular and orthopedic surgeons
to repair a severely traumatized limb). In these cases,
delays in care due to managed-care bureaucracy can become a
legitimate hazard to the patient.
Dr. Charlotte S. Yeh. chief of emergency medicine at the
New England Medical Center, has said. ``In some ways, it's
less frustrating for us to take care of homeless people than
HMO members. At least we can do what we think is right for
them, as opposed to trying to convince an HMO over the phone
of what's the right thing to do.''
In my experience that is not an exaggeration. In the
emergency department, the homeless--while certainly deserving
of medical care--often receive better and more prompt care
than the HMO policyholder.
Conventional political wisdom holds that health-care reform
is dead. In fact, nothing could be further from the truth.
Reform has been taking place at breakneck speed entirely
independent of Washington. In the last five to 10 years,
managed-care companies and the private sector have changed
profoundly the manner in which many Americans now receive
their health care.
As for-profit managed care has usurped decision-making
authority from physicians, so have they also diverted funds
from hospitals, physicians and policyholders to their own
CEOs and stockholders. Last year, HMO profits grew by more
than 15 percent with the four largest HMOs each reporting
more than $1 billion in profits. What Democrats and
Republicans alike fail to appreciate is that the allegiance
of managed care is to neither the patient nor the reduction
of the federal deficit, but to its CEOs and stockholders.
Mr. GRAHAM. I urge the adoption of this amendment.
The PRESIDING OFFICER. Is there further debate?
Mr. KERREY. Does the Senator wish to request the yeas and nays?
Mr. GRAHAM. Mr. President, I request the yeas and nays, unless the
managers of the bill are prepared to accept this amendment. If they are
so prepared, I will waive the yeas and nays. If not, I will ask for
them.
Mr. SHELBY. If the Senator from Florida will yield, we have a Member
who is on his way who wants to look at this amendment, perhaps talk on
it. Whether we can accept it might be premature right now. If the
Senator will just withhold that request.
Mr. GRAHAM. Mr. President, I would like to ask for the yeas and nays,
and if this amendment is capable of being accepted, I will ask that
request be vitiated and will accept a voice vote.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second
The yeas and nays were ordered.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, what is the pending business?
The PRESIDING OFFICER. The pending business is the amendment of the
Senator from Florida.
Mr. HATCH. It has not been adopted yet?
Mr. KERREY. Do you want to set it aside and go to the Biden
amendment?
Mr. HATCH. I ask unanimous consent that the pending amendment be set
aside so we can return to the Biden amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 5315 to Amendment No. 5295
(Purpose: To amend the Controlled Substances Act to provide a penalty
for the use of a controlled substance with the intent to commit a crime
of violence, including rape, and for other purposes)
Mr. HATCH. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Utah [Mr. Hatch], for himself and Mr.
Coverdell, proposes an amendment numbered 5315 to amendment
No. 5295.
Mr. HATCH. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Strike all after the 1st word and insert the following:
PROVISIONS RELATING TO USE OF A CONTROLLED SUBSTANCE WITH
INTENT TO COMMIT A CRIME OF VIOLENCE.
(a) Penalties for Distribution.--Section 401(b) of the
Controlled Substances Act is amended by adding at the end the
following:
``(7)(A) Whoever, with intent to commit a crime of violence
as defined in section 16, United States Code (including rape)
against an individual, violates subsection (a) by
distributing a controlled substance to that individual
without that individual's knowledge, shall be imprisoned not
more than 20 years and fined as provided under title 18,
United States Code.
``(B) As used in this paragraph, the term `without that
individual's knowledge' means that the individual is unaware
that a substance with the ability to alter that individual's
ability to appraise conduct or to decline participation in or
communicate unwillingness to participate in conduct is
administered to the individual.''.
(b) Additional Penalties Relating to Flunitrazepam.
(1) General penalties.--Section 401 of the Controlled
Substances Act (21 U.S.C. 841) is amended--
(A) in subsection (b)(1)(C), by inserting ``or 1 gram of
flunitrazepam'' after ``I or II''; and
(B) in subsection (b)(1)(D), by inserting ``or 30
milligrams of flunitrazepam,'' after ``schedule III,''.
(2) Import and export penalties.--
(A) Section 1009(a) of the Controlled Substances Import and
Export Act (21 U.S.C. 959(a)) is amended by inserting ``or
flunitrazepam'' after ``I or II''.
(B) Section 1010(b)(3) of the Controlled Substances Import
and Export Act (21 U.S.C. 960(b)) is amended by inserting
``or flunitrazepam'' after ``I or II,''.
(C) Section 1010(b)(4) of the Controlled Substances Import
and Export Act is amended by inserting ``(except a violation
involving flunitrazepam)'' after ``III, IV, or V,''.
(3) Sentencing guidelines.--The United States Sentencing
Commission shall amend the Sentencing Guidelines so that one
dosage unit of flunitrazepam shall be equivalent to
[[Page S10394]]
one gram of marihuana for determining the offense level under
the Drug Quantity Table.
(d) Increased Penalties for Unlawful Simple Possession of
Flunitrazepam.--Section 404(a) of the Controlled Substances
Act (21 U.S.C. 844(a)) is amended by inserting after the
sentence ending with ``exceeds 1 gram.'' the following new
sentence: ``Notwithstanding any penalty provided in this
subsection, any person convicted under this subsection for
the possession of flunitrazepam shall be imprisoned for not
more than 3 years and shall be fined as otherwise provided in
this section.''
Mr. HATCH. Mr. President, this is an amendment to the Biden
amendment, both of which address a horrible problem of considerable
concern to this body and, indeed, to everyone in this country who has
become aware of it.
Several months ago, law enforcement officers began to find an unusual
phenomenon: that unscrupulous men were abusing a prescription drug to
take advantage of women, particularly young women, by sedating them and
raping them.
That drug, Rohypnol--or, as it is called on the street, ``roofies''--
is a sedative marketed in literally dozens of countries.
Rohypnol is not sold legally in the United States, nor can it be,
because the manufacturer made the business decision that the already-
crowded market for sedatives did not warrant the considerable time and
expense of subjecting the product to the lengthy Food and Drug
Administration approval process.
Rohypnol is one of the widely used class of prescription medications
known as benzodiazepine. These Valium-like drugs are commonly used to
treat anxiety, sleep disorders, seizure disorders, and muscle spasms.
Rohypnol is currently approved for human use in 64 countries.
Many of my colleagues have seen reports about the use of Rohypnol in
date rape, during which men have apparently placed Rohypnol in their
date's drink and then, after the drug has taken effect, proceeded with
a sexual assault.
In response to the growing abuse of Rohypnol, the Drug Enforcement
Administration instituted the formal rescheduling process for this drug
by submitting a request on April 11, 1996, to the Food and Drug
Administration to conduct an evaluation of the scientific and medical
issues with regard to Rohypnol. That evaluation, an appropriate
examination of the law enforcement and the health aspects of Rohypnol
use, is continuing and ongoing.
In a letter from Health and Human Services Secretary Donna E. Shalala
to me on July 24, 1996, Secretary Shalala said that the goal of the
rescheduling process was to make Rohypnol subject to increased
penalties for illicit use and trafficking.
Since this particular drug has become an agent of abuse and the focus
of considerable debate, I agree with Secretary Shalala that it is
appropriate to increase the penalties for illegal trafficking in
Rohypnol.
The amendment that I have just filed accomplishes that purpose,
without depriving 64 countries of a drug that they find to be safe and
efficacious, a drug which we have every reason to believe would have
been found to be safe and efficacious in this country if the company
were willing to go through our arduous and lengthy Food and Drug
Administration approval procedures.
The drug comes into our country is clandestinely, generally through
Mexico, and certainly not legally. And the company that produces
Rohypnol has nothing to do with that.
Mr. President, none of us are sure how many times these drug-induced
rapes have occurred.
As far as I am concerned, one occurrence is one too many. I find that
situation deplorable; it is a heinous crime for someone to use any
sedative for the purpose of date-raping a partner.
Our amendment is a strike back at those who would use controlled
substances to engage in the most reprehensible of crimes--that is,
rape. That is why we need the toughened penalties for the illegal use
of Rohypnol, which is what Senator Coverdell and I are advocating with
this amendment.
The approach advocated in the Biden amendment, to reschedule the drug
to schedule I, is seriously flawed.
My major concern is that schedule I is the most restrictive category,
which is reserved for the drugs which have a high potential for abuse,
drugs which have no currently accepted medical use in treatment, and
drugs for which there is a lack of accepted safety for use under
medical supervision. That is what a schedule I drug is.
These standards clearly do not apply to Rohypnol, a member of the
benzodiazepine class which generally falls within the less restrictive
schedule IV.
If the United States were to single out this drug and place it in
schedule I, it would send a strong, and inappropriate, signal to other
countries that we find there is no medical use for Rohypnol. Such a
signal would be false.
To reschedule Rohypnol this way simply is not right. It could
unfairly result in the drug being rescheduled in some of the 64 other
countries where it is not being abused as it is in the United States,
where it is being used safely and efficaciously as a legitimate
sedative.
Rohypnol is no different from any other drug in its class, and many
health care professions are fearful that if this benzodiazepine were
removed from clinical use, ultimately the others will be removed also,
if and when they are implicated in similar crimes.
These pharmaceuticals are some of the most beneficial drugs in some
of the most difficult areas of medical treatment, such as mental
health.
Mr. President, the more appropriate--and expeditious--alternative
that we offer today is to impose all the penalties that apply to
schedule I drugs to Rohypnol without rescheduling the drug.
Specifically, our amendment would create an express violation under
the Controlled Substances Act for unlawful distribution, with intent to
commit a crime of violence, including rape, of a controlled substance
to a person without that person's knowledge. The penalty will be up to
20 years without probation, and fines will be imposed of up to $2
million for an individual. The definition of ``crime of violence'' is
provided in section 16 of title 18 of the United States Code.
We believe our amendment advocates the appropriate way to solve this
problem. It does not interfere with the safe and efficacious use of a
drug which is approved in 64 countries, but not our own.
I think my colleagues should agree it is not the manufacturer's fault
that people are abusing this drug, bringing it across the border so it
can be abused in this country in the way that Senator Biden has so ably
explained. I deplore the situation as much as he; I just do not agree
with his proposed solution to the problem.
The Hatch-Coverdell amendment also provides enhanced penalties for
manufacturing, distributing, dispensing, or possessing with the intent
to manufacture, dispense, or distribute large quantities of the drug
flunitrazepam, marketed as Rohypnol. One gram or more of the drug will
carry a penalty of not more than 20 years in prison and 30 milligrams a
penalty of not more than 5 years in prison. In addition, the amendment
extends the so-called long-arm provisions of 21 U.S.C. 959(a) to the
unlawful manufacture and distribution of flunitrazepam outside the
United States with the intent to import it unlawfully into this
country. It also directs the U.S. Sentencing Commission to amend the
sentencing guidelines so flunitrazepam will be subject to the same base
offense level as schedule I or II depressants.
Finally, at the request of law enforcement officials, we have added a
new penalty for unlawful simple possession of Rohypnol. Law enforcement
officers have indicated to me their concern that they need additional
tools to apprehend would-be rapists before the crime is committed.
Accordingly, the final provision provides increased penalties for
simple possession of flunitrazepam of not more than 3 years.
Mr. President, it has become obvious that we have a serious problem
in this country with abuse of drugs by teenagers. While the
overwhelming abuse of drugs by teenagers focuses on illicit drugs, the
illegal diversion and misuse of medicines is also a growing problem in
our country.
And I have to say that many manufacturers are concerned that if the
United States takes the approach advocated by the Senator from
Delaware,
[[Page S10395]]
then we could end up harming many people who need benzodiazepines
throughout the world. In other words, what my colleague is
contemplating could end up affecting all drugs in this class of
sedatives, drugs which are of value. And this would work to the
detriment of patients all over this country, and indeed, all over the
world.
I believe that the Federal Government must show it will not tolerate
the use of this drug--or any drug--to facilitate rape. It is necessary
and prudent that the Congress act, and approval of our amendment would
be a good start.
Mr. President, in closing, I must point out that 64 other countries
have found this drug to be safe and efficacious. The manufacturer has
chosen not to market it in this country because of the cost of the
lengthy approval process at the FDA and the number of other similar
products on the market.
I cannot fault the manufacturer for that decision, because the drug
approval process is too lengthy, in my estimation. Studies have shown
approval times can extend from 10 to 15 years, at a cost of half a
billion dollars. Approval of this drug probably would not have taken
that long, but who knows? Of course, we will never know, because the
manufacturer made the conscious choice not to introduce Rohypnol in the
American market.
The fact remains that use of these controlled substances in violent
crimes, such as rape, ought to result in a sure-fire penalty, a penalty
which sends the signal to would-be perpetrators that the United States
will not tolerate such crimes. That is what our amendment does.
If we want to do something about the misuse of this drug and other
drugs of a similar nature, the benzodiazepines, then it seems to me
this is the way to do it--impose tough penalties, let people know there
are tough penalties, see a few people go to jail for years. Perhaps
then we will find such drugs will not be abused anymore in this
country. That is the signal we should be sending.
So, I hope my colleagues will support this amendment, because it is
an important amendment.
I thank my colleague from Delaware for raising this issue. He has
been one of the principal legislators raising the issue about date
rape. I give him a lot of credit for that.
I give him credit for this amendment, as well, as I do my dear
colleague from Georgia, Senator Coverdell, who has worked very closely
with me in formulating this amendment and bringing it to the floor
today.
Mr. COVERDELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. COVERDELL. Mr. President, I rise in support of the Hatch-
Coverdell amendment. It has been an honor to work with Senator Hatch,
with his longstanding efforts to engage the drug war.
I point out to my colleagues in the Senate that just last week we
discovered the first death from Rohypnol, a young teenager who
apparently was given Rohypnol in a drink of soda, who has now lost her
life as a result of this awful drug, and some predator yet to be
discovered.
The Hatch amendment embraces the legislation that I introduced
shortly after our hearing where we heard from two young American
females who were stricken and the victims of predators with this drug
called Rohypnol. It is important to note that Rohypnol cannot be
detected: You cannot smell it; you cannot see it; and you cannot taste
it.
The effect of our amendment is to say that anybody who uses Rohypnol
or any other drug as a weapon, becomes a predator against someone, who
creates a victim, will be subject to increased penalties of up to 20
years. So this legislation, just as the Senator from Utah said, puts
would-be abusers of this drug and would-be predators of this drug on
notice. And, hopefully, as in the case of several other drugs in our
history, we will be able to corral them through, in a sense, the
warning system that this legislation creates. It creates a new Federal
crime if you use a drug as a predator, as a weapon, against a victim.
So I rise in support of this amendment and urge our colleagues to
pass it. I think that the quicker we make it clear how tough we are
going to be on Rohypnol or the date rape drug--and it is a bipartisan
effort; Senator Biden, from Delaware, has been working on this for some
time--the more likely we are to make it clear that it is a danger.
The packaging and other features of this drug have made some
teenagers almost view it as a safe drug. This stuff is a clear
knockout. Ten minutes and you do not know what hit you. Worse yet, you
cannot remember anywhere from 24 to 72 hours what happened. All you
have to do is go to one hearing and hear one victim tell you what
transpired with this awful drug in the hands of a predator, and you not
only will be supporting this amendment, but you probably will be trying
to think of how we can improve it and make it more effective than even
this.
So, Mr. President, I do rise in support of the amendment, and I yield
the floor.
Mr. THOMPSON addressed the Chair.
The PRESIDING OFFICER. The Senator from Tennessee.
Amendment No. 5244
Mr. THOMPSON. Mr. President, I now ask that the Senate return to the
Kohl amendment No. 5244.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. THOMPSON. Mr. President, I rise to oppose this amendment. This
amendment basically makes the possession of a firearm in a school a
Federal offense. I share the concern of my colleague from Wisconsin
about the growing problem we have about guns in schools, but I simply
believe we cannot afford to start federalizing every offense that
States have traditionally been called upon to handle.
This is not only traditionally a State matter with regard to the law
enforcement matter, it is also involving another traditional State
matter in terms of education. So you have law enforcement with regard
to an educational institution, two matters traditionally handled by the
State which we are now seeking to federalize.
One of the findings in the amendment is that States and localities in
school systems find it almost impossible to handle gun-related crimes
by themselves. Even States, localities, and school systems that have
made strong efforts to prevent and punish gun-related crimes find their
efforts unavailing, due in part to the failure or inability of other
States or localities to take strong measures.
Mr. President, I do not believe that is a valid finding that this
Congress ought to make. My understanding is that 48 States, I believe,
have passed legislation dealing in this very area. States should be
left to address this particular problem in ways that they see fit. They
may be more effective on a State and local level in determining how to
address this problem than we in Washington, DC, for example. There
might be some States that have had inducements to inform on violators.
Some States have gone in the direction of voluntary surrender of guns,
with amnesty provided. Some States penalize parents for failure to
supervise children, as my State in Tennessee has done.
I do not believe that we should be taking an area which has
traditionally been under the auspice of State and local government, and
tax people at that level, and then bring the money to Washington to put
in the hands of Federal officials to enforce these laws.
Schools do have problems with guns. Part of it has to do with the
breakdown in discipline. Part of it has to do with regulations that
have been placed on schools and lawsuits that schools have been
subjected to, making it more difficult for schools to effectively
handle all kinds of disciplinary problems, including guns in schools.
They have not been suffering from a lack of FBI agents going around
schools investigating these matters. They are serious enough offenses
of a traditional Federal nature for FBI agents to be investigating. We
do not need this.
This bill is very similar to a bill that Congress passed by voice
vote in 1990, the gun-free school zone law, which made it a Federal
offense for any person to possess a gun in a school. The Supreme Court
ruled it unconstitutional and said it was beyond the power of Congress
to regulate in regulating interstate commerce and held that gun
possession is not an economic activity
[[Page S10396]]
that substantially affected interstate commerce.
At a time when the Supreme Court is telling us that you cannot just
have some theoretical basis, some very attenuated basis for interstate
commerce, we once again are making an attempt at the Federal level. Of
course, it is a very popular issue, but is an attempt at the Federal
level to federalize another State and local matter.
I think Justice Kennedy's concurring opinion in that case is just as
instructive today as it was back then. He said were the Federal
Government to take over the regulation of entire areas of traditional
State concern, areas having nothing to do with the regulation of
commercial activities, the boundaries between the spheres of Federal
and State authority would blur and political responsibility would
become illusionary. I think he is absolutely right. I think that States
and local governments need to know it is their responsibility. People
in these communities need to know it is their responsibility and they
cannot pass off any problem that comes down the pike to the Federal
Government.
This amendment would do nothing in terms of additional funding to
rectify the problem. It would do nothing in terms of metal detectors or
any other supervisory personnel or anything to assist any teachers, or
anything of that nature. It would simply allow Federal agents to come
into these schools and make a Federal crime out of this traditional
State area and further load up our Federal dockets, which are now
trying to stay afloat as it is.
Mr. President, as I say, I am very sympathetic with the problem. It
is something that we are all dealing with in one way or another. As
chairman of the Youth Violence Subcommittee, we certainly spent a lot
of time in dealing with the problem that we have among our young people
today. Part of that has to do with schools. Part of that has to do with
guns. But keep the responsibility where it is. Do not get so caught up
in trying to make a point, as popular as it might be, temporarily, that
we one by one by one federalize shoplifting or federalize illegal
parking or whatever happens to be the rage at the moment, and we wind
up with one system at the Federal level, Federal agents handling
everything, and as soon as we perceive a new problem, everybody in the
State and local level thinks of the Federal Government first.
That is not the way we have traditionally handled these matters in
this country. That is not the way we need to proceed in order to make
sure we keep that separation between State and local and Federal
Government. So at a time when so many of us are trying to move more and
more responsibility back to the States and closer to the people who
know how to handle it more effectively, I think it would be indeed
ironic for us to be taking this matter, which for 200 years has been
the responsibility of State and local government, and federalize it.
I move to table the amendment, and I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on the motion to table the
Kohl amendment.
The yeas and nays have been ordered.
The clerk will call the roll.
Mr. NICKLES. I announce that the Senator from Oregon [Mr. Hatfield]
is necessarily absent.
I further announce that, if present and voting, the Senator from
Oregon [Mr. Hatfield] would vote ``nay.''
The result was announced--yeas 27, nays 72, as follows:
[Rollcall Vote No. 290 Leg.]
YEAS--27
Baucus
Bennett
Bond
Breaux
Campbell
Cochran
Faircloth
Feingold
Grams
Grassley
Gregg
Hatch
Heflin
Hollings
Inhofe
Jeffords
Johnston
Kyl
Leahy
McCain
Murkowski
Nickles
Santorum
Smith
Stevens
Thomas
Thompson
NAYS--72
Abraham
Akaka
Ashcroft
Biden
Bingaman
Boxer
Bradley
Brown
Bryan
Bumpers
Burns
Byrd
Chafee
Coats
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Domenici
Dorgan
Exon
Feinstein
Ford
Frahm
Frist
Glenn
Gorton
Graham
Gramm
Harkin
Helms
Hutchison
Inouye
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Levin
Lieberman
Lott
Lugar
Mack
McConnell
Mikulski
Moseley-Braun
Moynihan
Murray
Nunn
Pell
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Sarbanes
Shelby
Simon
Simpson
Snowe
Specter
Thurmond
Warner
Wellstone
Wyden
NOT VOTING--1
Hatfield
The motion to table the amendment (No. 5244) was rejected.
Mr. KOHL. Mr. President, I ask that the yeas and nays be vitiated.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on agreeing to the amendment.
The amendment (No. 5244) was agreed to.
Mr. KOHL. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 5234
Mr. ASHCROFT addressed the Chair.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. ASHCROFT. Mr. President, I ask for the regular order with respect
to the Daschle amendment numbered 5234.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from South Dakota [Mr. Daschle] proposes an
amendment numbered 5234.
Amendment No. 5316 to Amendment No. 5234
(Purpose: To provide for workforce flexibility for employees of certain
Federal contractors)
Mr. ASHCROFT. Mr. President, I send a second-degree amendment to the
desk.
The PRESIDING OFFICER. The clerk will report the second-degree
amendment.
The legislative clerk read as follows:
The Senator from Missouri [Mr. Ashcroft] proposes an
amendment numbered 5316 to amendment No. 5234.
Mr. ASHCROFT. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the matter proposed to be inserted, add the
following:
Sec. . Workplace Flexibility for Employees of Federal
Contractors.--Subchapter II of chapter 61 of title 5, United
States Code, shall apply to contractors and employees
specified in section 3(a)(1) and to contractors with an
entity of the executive branch of the Federal Government, and
employees of such contractors, in the same manner, and to the
same extent, as such subchapter applies to agencies and
employees, respectively, as defined in section 6121 of title
5, United States Code.
Mr. ASHCROFT. Mr. President, I thank you for this opportunity. The
Daschle amendment No. 5234 seeks to address a disparity between the
insurance coverage that would inure to the benefit of Federal workers
as compared to the workers in companies that do contract business with
the Federal Government. There are far many more disparities than the
disparities that just relate to health insurance. As a matter of fact,
conditions of employment are substantially different for individuals in
the Federal Government from individuals in the private sector who do
business with the Federal Government.
One of the most substantial areas in which there are significant
differences between those who work for the Federal Government and those
who are in the private sector who contract with or provide services to
the Federal Government is in the area of the opportunity for employees
and employers to cooperate for work schedules which are helpful to
families or for employees to opt to take compensatory time instead of
to take time and a half in terms of overtime pay.
One of the serious tensions that exists in the workplace today is the
tension between the demands of the home environment and the demands of
the work environment. The Federal Government addressed this a long time
ago. We began in the late forties by having compensatory time available
to Federal workers, and then in the 1980's, or in the late 1970's and
into the 1980's, we began experimenting with allowing
[[Page S10397]]
cooperation between Federal workers and their employers to provide for
flexible time arrangements for work, so that in the Federal Government,
at the option of the worker, you can work a little more than 40 hours
in 1 week in order to take some time off the next week, or vice versa.
The idea is that if your daughter, for example, is getting an award
at the high school sometime on a Friday afternoon, you can say to your
employer, ``If I can make up the time on Monday, will that be
allowable?'' And with that 80-hour work frame instead of the 40-hour
work frame, that is something that can be done. It is achievable.
The Daschle amendment really seeks to provide an equity between those
who work in the Federal Government and those who do Federal-type
responsibilities but are working in the private area. It does so in the
area of health care. My second-degree amendment is to take that
philosophy and extend it to other benefits, benefits that help both the
worker and the employer in a special way.
The GAO, for example, has studied the situation at the Federal level
and found that the flex time opportunities and the compensatory time
opportunities that are available to workers under the Federal system
have resulted in substantial work satisfaction among Federal workers in
this respect. The satisfaction was attendant by higher productivity,
and the satisfaction resulted in a greater return on the resource that
was devoted; on the tax dollars that were being spent, we received more
for our money.
If that works for Federal workers in the setting of their Federal
employment, I think it should work for the private workers who are
working side by side frequently with the Federal employees on jobs,
doing contracts frequently in the same work setting and the same work
environment. Yet, we have a different set of work rules. And if the
thrust and effect of the Daschle amendment would be to extend benefits
that are consistent with the Federal job site to those who are working
in conjunction with the Federal job site vis-a-vis health, it seems to
me it is more than reasonable to say those things that would enhance
the productivity, those things that would increase the capacity of the
contractor to work effectively to fulfill his or her contract with the
Federal Government is important, as well.
In my office recently I received a letter from a contractor who works
with the Federal Government, and he complains that his employees work
side by side with Federal Government employees and there is an ability
on the part of the Federal employees to accumulate comp time and to use
comp time instead of overtime because they want to spend time with
their families rather than increase their earnings, for example, and
that there are flex time opportunities for the Federal employees, but
his employees who work right alongside them in the same work
environment are subjected to a different set of work rules, a different
set of benefits.
It simply does not make sense to have this duplicity in the
workplace, especially when we have had the transition in the way people
accommodate work and home life. If you will look, 35 years ago when the
labor relations laws of this country were created, only 18.6 percent of
married women with a spouse present and children under 6 years of age
were in the labor force. By 1990, nearly 60 percent of such women were
in the labor force.
A 1985 survey of the Federal employees participating with Federal
work schedules found 72 percent said they had more flexibility to spend
time with their families; 74 percent said the schedules improved their
morale. It seems to me that if these are benefits to being involved in
the workplace and the thrust of the amendment is to extend the benefits
similar to those that would have been earned in the Federal workplace
to those who are contracting with the Federal Government, we ought to
extend these flexible work time benefits, these compensatory time
benefits, the potential of compressed workweek benefits that have been
a part of the Federal Government for years now.
It is not that these are just something new to the Federal
Government. In the late 1970's an experiment was begun and that
experiment, or pilot project, was renewed over and over again until the
mid-1980's, when it was decided that the program was simply so
successful that it should be extended to Federal employees generally.
So that in the mid-1980's, the Federal Government employees were
accorded, on a broad scale, this benefit. Some in the executive branch
were not accorded the benefit. And just 2 or 3 years ago, President
Clinton, in an Executive order, extended these benefits to other
Federal employees, recognizing their value to the employees in terms of
the ability of employees to work effectively on their jobs and
accommodate the needs of their families and recognizing the value of
these rules to the Government.
It occurs to me the extension of these rules to those who contract
with the Government, both the executive and legislative branches, is
the better part of wisdom. We have seen these rules work very
effectively for the achievement of governmental objectives. And when we
are talking about individuals who are licensed or contracting with the
Federal Government, it seems to me, in the achievement of those
objectives for the Federal Government, these work rules ought to apply.
It is in that respect that I have submitted this amendment and I
believe it ought to be acted upon favorably by the Senate.
Favorable action here says to the work force of America: We respect
the kind of tension you feel between work and home. We will help you
accommodate those tensions as well as you can. And that will result in
greater productivity, in more being done because the workers have
higher morale and better capacity under this kind of situation. It is
with that in mind I offer this second-degree amendment to the Daschle
amendment.
Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. SIMON. Will my colleague yield? If my colleague will yield, I
just got the amendment. I have been trying to get the amendment. Does
this apply to Federal workers only or does this apply to the entire
work force?
Mr. ASHCROFT. As I think my colleague from Illinois knows, I would
like to apply this to the work force generally, but this applies to
companies doing business with the U.S. Government, in a sense as a part
of being consistent with the underlying amendment which sought to
extend benefits, in the Daschle amendment, to those who are doing
business with the Federal Government and had a relationship that
provided a basis for a comparison of health care benefits.
Mr. SIMON. I do not know whether I am for or against his amendment
now. If we can avoid voting for a little while, while we consult with
some people on this, I would appreciate it.
Mr. ASHCROFT. I asked for the yeas and nays, but I have no objection
to the vote not being taken immediately. I have no objection to a pause
between the yeas and nays being ordered and the vote being taken.
Mr. SIMON. Mr. President, in line with what the distinguished Senator
from Missouri just said, I ask unanimous consent this temporarily be
set aside.
The PRESIDING OFFICER. Is there objection? The amendment to the
amendment will be temporarily set aside.
Mr. GLENN. Mr. President, I support the Regulatory Accounting
amendment offered by Senator Stevens. Senator Levin and I have worked
with our Governmental Affairs Committee chairman, Senator Stevens, to
refine the language since it was initially added to the Treasury,
Postal appropriations bill. While I have reservations about legislating
on appropriations, the result of our collaborative effort is a bi-
partisan amendment that should be supported. It will provide one
significant step towards regulatory reform, a goal to which I continue
to be committed.
Government regulation has proven an important element in our Nation's
effort to protect public health and safety, restore our natural
environment, and provide for the welfare of the American people. I
believe, however, that our Government often relies too
[[Page S10398]]
heavily on regulation, for example, without considering costs that can
significantly burden businesses, State and local governments, or
individuals.
Our task in regulatory reform is to address the excesses and
weaknesses of our regulatory system without undermining the protections
it has provided. As I said many times during the regulatory reform
debate of this Congress, true regulatory reform must strike a balance
between the public's concern over too much government and the public's
strong support for regulations to protect the environment, public
health and safety.
A necessary element of true regulatory reform is the development of
objective information on which to base and question regulatory
decisions. The amendment before us today should assist in this regard.
The proposal for an estimate of the costs and benefits of all Federal
regulation was first made this Congress in our bipartisan Governmental
Affairs Committee regulatory reform bill (S. 291). It was also in
subsequent bills. A modified version was most recently added to the
Treasury, Postal appropriations bill (H.R. 3756) during the Senate
Appropriations Committee markup. Senator Stevens' floor amendment--
amendment No. 5226--refines that language, revising section 645 of H.R.
3756. The revised language reflects a collaborative effort by Senator
Stevens, Senator Levin, and me to craft a practical requirement for a
useful report on Federal regulation.
Under the amendment, OMB will compile in a one-time report existing
analyses and estimates of regulatory costs and benefits, both in terms
of estimates of the total annual costs and benefits of all Federal
regulation and in terms of specific major rules--these would be the
significant rules that have gone through OMB regulatory review with a
cost/benefit analysis. OMB will also provide a discussion of those
costs and benefits as direct and indirect impacts on sectors of our
Nation. This assessment should encompass not only various estimates of
impacts, but also alternative approaches to making such estimates.
In each of these steps, OMB will not have to engage in extensive
analyses of its own, but rather is expected to use existing
information. The sponsors of this amendment are aware of OMB's resource
constraints and intend that the report be based on a compilation of
existing information, rather than new analysis. OMB should insure, of
course, that all considerations of costs and benefits take into account
relevant quantifiable and nonquantifiable impacts. For example,
visibility over the Grand Canyon is important to our country, yet is
difficult to value as an economic benefit. Thus, to be useful in
regulatory decisionmaking, cost/benefit analyses must be able to
address both quantifiable and nonquantifiable impacts.
Finally, the amendment requires OMB to provide recommendations for
reforming existing regulatory programs along with a description of
significant public comments made on its report before submission to
Congress. The recommendations for reform should include programs that
should be eliminated or altered because, for example, they are too
burdensome or are obsolete, as well as programs that should be
strengthened to more effectively implement public policy.
While the study of regulatory costs and benefits is far from an exact
science, and definitely does not provide the detail or accuracy of
financial accounting, it is an area of study in which we do need to
develop more widely accepted measures and methodologies. The OMB report
should highlight areas in which analysis is clear and productive and
those areas in which more work is needed to refine analytic techniques.
It should also suggest approaches for analyzing non-quantitative
impacts and for integrating them with economic analyses. In these ways,
the OMB report should provide an important service by informing
agencies, Congress, and the public about evaluating the costs and
benefits of Federal regulation.
regulatory accounting
Mr. LEVIN. Mr. President, the managers of the bill have accepted an
amendment by Senator Stevens which would require the Office of
Management and Budget to submit, no later than September 30, 1997, a
report to Congress that provides estimates of the total costs of
Federal regulatory programs currently in place. I have agreed to
support this amendment because of a number of changes Senator Stevens
was willing to make to the amendment.
As many of us know, there are several figures that are routinely used
to decry the cost of regulation. Some reference a study that say
regulation costs each of us $6,000 a year. Others reference studies
that say the total cost of regulation is some $600 billion. These
numbers are bandied about in an effort to drive home the message that
regulation is expensive and to push for legislation to limit
regulation.
Senator Glenn recently had GAO look at one of these studies to
determine whether it used appropriate and reasonable methods. The GAO
analysis was critical of the private study and highlighted several
points at which the assumptions used were inappropriate or highly
questionable.
Robert Hahn, an economist at the American Enterprise Institute,
issued a report earlier this year in which he attempted to ascertain
whether Federal regulation results in net benefits. Mr. Hahn concluded
that, taken in aggregate, the net benefits from Federal environmental,
health and safety regulations from 1990-1995 are $280 billion. This
figure is calculated as total benefits minus total costs.
However, when Mr. Hahn examined individual regulations, he found that
less than 50 percent do not pass a cost-benefit test (total benefits
less total costs). But since most of those regulations giving net costs
were in the $0-10 billion dollar range, while most of those giving net
benefits were in the $10-100 billion range, in the aggregate the
regulations give a large net benefit.
This finding suggests that any aggregate number may not be as useful
in understanding the quality of our Federal regulatory programs as
analysis of each individual program. For example, Mr. Hahn found that
safety regulations pass cost-benefit analyses more often than health
regulations and that the Clean Air Act regulations give significantly
larger benefits than any other program.
This amendment would ask the Office of Management and Budget to come
up with its best estimate of not only the costs of our Federal
regulatory programs, but also the benefits of such programs. It would
put to use the best information the Federal agencies have about the
impact of the various Federal regulatory programs.
The amendment does not, and this is why I am able to support it, does
not require OMB to conduct new studies or analyses or develop new data
or information. That would be a time-consuming, and expensive use of
taxpayer money. Better that the OMB staff use its time and money to
help make new regulations follow the dictates of common sense and be
cost-effective regulations.
No, this amendment simply directs OMB to put together the already
available information that it has on existing Federal regulatory
programs and use that to estimate the total annual costs and benefits
of each. If information is unavailable, or such estimates are not
possible, then the OMB should tell us in the report what is not
available and why and describe the extent to which the OMB estimates
are or are not reliable.
In doing his analysis, Mr. Hahn found that if cost-benefit analysis
is to play a greater role in agency rule making, the quality of the
analysis should be improved dramatically. Changes that he thinks would
improve the quality of analysis include: standardizing and summarizing
key economic assumptions; using best estimates and appropriate ranges
to reflect uncertainty; and introducing peer review of the analyses and
putting more weight on peer-reviewed scholarship. He recommends that
OMB develop a standard format for presenting results in a clear and
succinct manner. The report required by this amendment could be helpful
in achieving that goal.
Mr. President, in a way, this is an experiment to see what we already
have available to us, if it were put together in a useable format. It
is a one-time only report which we can then use to determine the
utility of continuing the requirement.
The report by OMB is also to include the estimates of the costs and
benefits of the major rules that are in effect, an
[[Page S10399]]
assessment of the direct and indirect impacts of Federal rules on both
the public and private sector, and any recommendations from OMB about
revising a Federal regulatory program to make it more effective or
efficient. Reporting on the costs and benefits of major rules is
expected to require no more than reporting, in an organized and
readable manner, the cost-benefit analyses of the major rules in effect
that were already done prior to promulgation. To the extent there is
up-dated information that would change the estimates in those analyses,
such updates should be included in this part of the report if it is
available.
The assessment of impacts is intended to be a narrative discussion of
OMB's opinion on this subject. It does not require additional
information gathering; rather, the intent, here, is that the Director
use the information contained in the report on the costs and benefits
of Federal regulatory programs and describe the expected impacts of
such programs on State and local governments, business, and
individuals. Flowing from this assessment would be any recommendations
the Director may have to improve the existing regulatory programs.
Mr. President, cost-benefit analysis has been at the heart of the
regulatory reform debate for the past decade. Those who are
knowledgeable in the field will agree that it is more art than science.
Mr. Hahn, in the report I earlier mentioned stated, ``Despite my
enthusiasm for cost-benefit analysis, I am leery about proposals that
require the agency head to implement regulations solely on the basis of
whether benefits exceed costs. Given the uncertainties in the analysis,
we should not ask too much of the tool.''
Precision in these analyses and assessments is far from achievable.
But that doesn't mean they aren't useful. We shouldn't be bound by
them, but we also shouldn't ignore them. Use of cost-benefit analysis
in developing regulatory programs goes back to President Nixon. Each
administration has expanded on its use. Today, such analysis is
commonplace with respect to regulatory proposals that have a
significant impact.
We tried to place a requirement for cost-benefit analysis for all
significant rules in law last year. We failed, in part, because some
Members wanted to make the requirements for using cost-benefit analysis
more exacting than experience has shown us they can be. I remain
hopeful that next Congress we can reach agreement and develop a
reasonable proposal that guarantees that solid cost-benefit analysis of
important regulations will always be done, and that such analysis will
be used appropriately.
High Intensity Drug Trafficking Area
Mr. GORTON. Mr. President, like many citizens across the country, the
residents of Washington State have witnessed a dramatic increase in
drug smuggling and drug abuse throughout Washington State in recent
years. Unfortunately, these negative trends are continuing to rise, and
for that reason, I believe that Washington State is an excellent
candidate for designation as a high-intensity drug trafficking area
[HIDTA].
For example, drug addiction and abuse is a major public health
problem. Overall, according to the latest available statistics, drug-
related emergency room visits in Washington State per 100,000 persons
are running over 50 percent higher than the national average. Local
authorities are also concerned by both the increased level of drug
usage, trafficking, and gang violence associated with illicit drug
trafficking.
Moreover, the Seattle-Tacoma metropolitan area, the Blaine border
crossing at the international border between the United States and
Canada, and the Yakima Valley in central Washington are gateways for
the introduction of illegal drugs into the United States. The threats
posed by heroin, marijuana, cocaine, hashish and methamphetamine merit
special attention as the volume of these drugs passing through the area
has a direct impact on other areas of the country.
Mr. President, because I believe that Washington State should be
designated as a high-intensity drug trafficking area does not
automatically qualify me as an expert on national drug control policy.
In fact, I would submit that Gen. Barry McCaffery, the new Director of
the Office of National Drug Control Policy, probably has a much better
understanding of how different programs should be implemented to
control drug trafficking and drug abuse in different regions throughout
the country.
Accordingly, the Senate version of the fiscal year 1997 Treasury,
Postal Service, and General Government appropriations bill provides $13
million in additional funds for the designation of new high-intensity
drug trafficking areas. It also directs the Office of National Drug
Control Policy to review all of the pending applications for high-
intensity drug trafficking area designations including the gulf coast,
the Northeast, the Northwest, the Great Plains, and the Rocky Mountain
regions. I commend the chairman and the ranking member for their
efforts in drafting this bill in such a manner. It allows the Office of
National Drug Control Policy, not Congress, to designate new high-
intensity drug trafficking Areas in the United States, which I believe
is entirely appropriate.
In the House version of the fiscal year 1997 Treasury, Postal
Service, and General Government Appropriations bill, the bill provides
an additional $10 million for new high-intensity drug trafficking areas
programs. Unfortunately, the accompanying Report designates three new
high-intensity drug trafficking areas, which completely circumvents the
current designation process formulated by the Office of National Drug
Control Policy. I believe this is an inappropriate way to do business.
The Office of National Drug Control Policy, not the Congress, should
have the authority to designate new high-intensity drug trafficking
Areas.
I appreciate Senator Shelby's and Senator Kerry's attention to this
matter, and I would encourage the Senate conferees to maintain the
Senate's position when this issue comes before the conference.
post-fts2000
Mr. SHELBY. Mr. President, it should be noted that the report
accompanying the Treasury appropriations bill contains language
directing the release of the solicitation for the Post-FTS2000 Program
by the Government no earlier than May of 1997. I want to make clear
that we do not seek to delay the transition to the Post-FTS2000 Program
in delaying the release of the solicitation.
As many of us know, the Telecommunications Act of 1996 was designed
to open the entire telecommunications industry to competitive market
forces. This landmark legislation will put local exchange carriers,
cable companies and utilities in fierce competition in their respective
markets. With proper implementation by the Federal Communications
Commission [FCC] and State public service commission, the long-term
impact of telecommunications reform undoubtedly will be new technology,
better services, and new market entrants available to our citizens.
By calling for a release date for the Post-FTS2000 solicitation in
the Spring of 1997, we are manifesting our view that the Federal
Government customers and American taxpayers will be best served if the
Post-FTS2000 Program were designed to take advantage of the benefits of
increased competition which is intended to result from the 1996
Telecommunications Act and which we believe most certainly will take
place. Currently, the FCC and State public service commissions are in
the process of implementing the act's provisions, and thus, it seems
wasteful and premature for the Government to initiate the Post-FTS2000
enterprise sooner than next May.
We owe it to our constituents to ensure the GSA pursues a Post-
FTS2000 strategy that can guarantee the best quality service at a price
that makes sense. However, as chairman of the subcommittee responsible
for funding the GSA's activities, I have asked GSA a series of detailed
questions that are intended to ensure that the Post-FTS2000 Program is
the best possible strategy for meeting the Government's communications
needs well into the next millennium. However, the GSA cannot address
the issues I raised, and I do not believe GSA can begin its solutions
with the original schedule of October, 1996.
For instance, I envision some of the largest savings in the Post-
FTS2000 contract from integrating local services acquisition as that
market faces
[[Page S10400]]
competition. Yet, the current reported scope of the Post-FTS2000
contract does not provide for local services competition, or a
comparison of end-to-end service cost versus a piecemeal acquisition of
telecommunication services. Instead, GSA seeks competition in only a
few cities under a separate acquisition. This strategy fails to address
the disparity between urban and rural government locations with respect
to end-to-end communications and fails to bring the benefit of
competition for all telecommunications services to the Federal
Government. We also want to see a business plan and requirements that
reflect the Telecommunications Act, as well as the Government's plan
for addressing security and interoperability.
I also point out, Mr. President, that I have consulted with my friend
and colleague, Senator Stevens, the chairman of the Governmental
Affairs Committee, which has oversight jurisdiction over this program,
and he agrees with our approach. In addition, my friend and colleague,
the ranking minority member, Senator Kerrey, is intimately aware and
knowledgeable in this matter and also endorses the direction set forth
today.
Mr. DOMENICI. Mr. President, I rise in strong support of H.R. 3756,
the Treasury, Postal Service, and general Government appropriations
bill for fiscal year 1997.
This bill provides new budget authority of $23.3 billion and new
outlays of $20.5 billion to finance operations of the Department of the
Treasury, including the Internal Revenue Service, U.S. Customs Service,
Bureau of Alcohol, Tobacco and Firearms, and the Financial Management
Service; as well as the Executive Office of the President, the Office
of Personnel Management, the General Services Administration, and other
agencies that perform central Government functions.
I congratulate the chairman and ranking member for producing a bill
that is within the subcommittee's 602(b) allocation. When outlays from
prior-year budget authority and other adjustments are taken into
account, the bill totals $23.7 billion in budget authority and $23.5
billion in outlays. The total bill is at the Senate subcommittee's
602(b) nondefense allocation for budget authority and under its
allocation for outlays by $133 million. The subcommittee is also at its
Violent Crime Reduction Trust Fund allocation for budget authority and
under its allocation for outlays by $4 million.
Mr. President, I ask unanimous consent to have printed in the Record
a table displaying the Budget Committee scoring of H.R. 3756, as
reported by the Senate.
I urge Members to support the bill and to refrain from offering
amendments that would cause the subcommittee to exceed its 602(b)
allocation.
There being no objection, the table was ordered to be printed in the
Record, as follows:
TREASURY-POSTAL SUBCOMMITTEE SPENDING TOTALS--SENATE-REPORTED BILL
[Fiscal year 1997, in millions of dollars]
------------------------------------------------------------------------
Budget
authority Outlays
------------------------------------------------------------------------
Nondefense discretionary:
Outlays from prior-year BA and other actions
completed....................................... ......... 2,381
H.R. 3756, as reported to the Senate............. 11,081 8,498
Scorekeeping adjustment.......................... ......... ........
--------------------
Subtotal nondefense discretionary............ 11,081 10,879
====================
Violent crime reduction trust fund:
Outlays from prior-year BA and other actions
completed....................................... ......... 9
H.R. 3756, as reported to the Senate............. 120 93
Scorekeeping adjustment.......................... ......... ........
--------------------
Subtotal violent crime reduction trust fund.. 120 102
====================
Mandatory:
Outlays from prior-year BA and other actions
completed....................................... 129 128
H.R. 3756, as reported to the Senate............. 12,081 11,936
Adjustment to conform mandatory programs with
Budget Resolution assumptions................... 301 445
--------------------
Subtotal mandatory........................... 12,511 12,509
====================
Adjusted bill total.......................... 23,712 23,490
====================
Senate Subcommittee 602(b) allocation:
Defense discretionary............................ ......... ........
Nondefense discretionary......................... 11,081 11,012
Violent crime reduction trust fund............... 120 106
Mandatory........................................ 12,511 12,509
--------------------
Total allocation............................. 23,712 23,627
====================
Adjusted bill total compared to Senate Subcommittee
602(b) allocation:
Defense discretionary............................ ......... ........
Nondefense discretionary......................... ......... -133
Violent crime reduction trust fund............... ......... -4
Mandatory........................................ ......... ........
--------------------
Total allocation............................. ......... -137
------------------------------------------------------------------------
Note.--Details may not add to totals due to rounding. Totals adjusted
for consistency with current scorekeeping conventions.
Mr. ASHCROFT. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mrs. Hutchison). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LOTT. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. Madam President, at the request of the Senator from Utah,
Senator Hatch, before we move to the next action, I ask for the yeas
and nays on amendment numbered 5295.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
____________________