[Congressional Record Volume 143, Number 23 (Thursday, February 27, 1997)]
[Senate]
[Pages S1734-S1762]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BOND (for himself and Mr. Ashcroft):

  S. 368. A bill to prohibit the use of Federal funds for human cloning 
research; to the Committee on Labor and Human Resources.


                          RESEARCH LEGISLATION

  Mr. BOND. Mr. President, today I rise to introduce a measure on 
behalf of myself, Senator Ashcroft, and Senator Byrd which would 
prohibit permanently the use of Federal funds for human cloning 
research. I am sure most Americans by now have heard about the 
successful cloning of Dolly, the sheep, by Scottish scientists. Many 
people are now asking can similar techniques be used to clone a human 
being? Something that was once thought to be only science fiction is 
now close to being a reality.
  With the legislation I introduce today, I intend to make sure that 
human cloning stays within the realm of science fiction and does not 
become a reality. The bill that I am introducing with my colleagues 
today will place a permanent ban on Federal funding for human cloning 
or human cloning research. We must send a clear signal: Human cloning 
is something we cannot and should not tolerate. This type of research 
on humans is morally reprehensible. We should not be creating human 
beings for spare parts or as replacements. Moreover, a National 
Institutes of Health human embryo panel noted, ``allowing society to 
create genetically identical persons would devalue human life by 
undermining the individuality of human beings.''
  In a September 1994 report of the Human Embryo Research Panel, the 
heading is, ``Research Considered Unacceptable for Federal Funding.'' 
It said:


[[Page S1735]]


       Four ethical considerations entered into the deliberations 
     of the panel as it determined what types of research were 
     unacceptable for Federal funding: The potential adverse 
     consequences of the research for children, women and men; the 
     respect due the reimplantation embryo; concern for public 
     sensitivities in highly controversial research proposals, and 
     concern for the meaning of humanness, parenthood, and the 
     successions of generations.

  The President has said we should study the issue. President Clinton 
has asked a Federal bioethicist board to consider the implications of 
this research and report back to him within 90 days. I do not think we 
need to study this. I think we can save the board some effort because 
the President's own administration has concluded that human cloning was 
``research considered unacceptable for Federal funding.'' There are 
some aspects of life which simply ought to be off limits to science.
  I think it will be helpful to go through some of the ethical 
considerations the board looked at. First, they asked: Is it ethical to 
create genetically identical individuals who can be born at different 
times? Is it ethical to store a frozen human embryo that is genetically 
identical to a born child in order to serve as a later source for organ 
and tissue transplantation; thus treating humans as spare parts? Is it 
ethical to create a genetically identical child as a replacement in 
case the first child dies?
  Again, these are just a sample of the ethical questions the issue 
poses.
  The board concluded the analysis by stating:

       There are broad moral concerns about the deliberate 
     duplication of an individual genome. The notion of cloning an 
     existing human being or of making ``carbon copies'' of an 
     existing embryo appears repugnant to members of the public. 
     Many Members of the panel share this view and see no 
     justification for Federal funding of such research.

  I also should point out an important distinction with this bill. It 
is narrowly drafted so that it only affects human cloning research. It 
does not address the issue of plant and animal cloning research, and it 
will also allow--and I personally strongly support--NIH to continue its 
human genome mapping project.
  I have long been a supporter of biotechnology, genome mapping and 
manipulation, and even plant and animal cloning. But we can draw a 
clear line here. For plants and animals, it makes sense to clone your 
specimens to improve human health and human well-being. But when we are 
talking about creating an entire human being, identical to another, we 
are talking about playing God, and that is where we must draw the line.
  I note, the Vatican and leading ethicists throughout the country have 
called for a ban on human cloning and human cloning research.
  I ask unanimous consent that the names of those ethicists and 
scientists be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Dr. Ted Cicero, Vice Chancellor for Research at Washington 
     University in St. Louis, Missouri.
       Dr. Kevin Fitzgerald, a Jesuit priest and a geneticist at 
     Loyola University in Illinois.
       Arthur Caplan, head of the Center for Bioethics at the 
     University of Pennsylvania.
       Dr. Harmon Smith, Professor of Moral Theology at Duke 
     University.
                                 ______
                                 
      By Mr. JEFFORDS (for himself, Mr. Kennedy, Mr. Chafee, Ms. 
        Mikulski, Ms. Collins, Mrs. Murray, Mr. Dodd, Mr. Hollings, Mr. 
        Glenn and Mr. Reed):
  S. 369. A bill to amend section 1128B of the Social Security Act to 
repeal the criminal penalty for fraudulent disposition of assets in 
order to obtain medicaid benefits added by section 217 of the Health 
Insurance Portability and Accountability Act of 1996; to the Committee 
on Finance.


     HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AMENDMENTS

  Mr. JEFFORDS. Mr. President, I am on the floor today to introduce 
legislation that will repeal section 217 of the Health Insurance 
Portability and Accountability Act [HIPAA]. As enacted last year, this 
provision for the first time creates Federal criminal penalties for 
elders who transfer their assets and who subsequently apply for 
Medicaid but are deemed ineligible for nursing home benefits.
  I believe the goal to stop fraud and abuse in the Medicaid Program is 
laudable and must be pursued. However, there is a growing consensus 
that section 217 is a vague, unenforceable, criminal sanction 
misdirected at the elderly. It is unduly threatening to the Nation's 
senior citizens. We are sending the wrong message by implying there is 
something wrong or illegal with obtaining sound financial advice and 
estate planning to legitimately protect the assets that senior citizens 
have spent a lifetime accruing.
  During a recent hearing before the Committee on Labor and Human 
Resources, on the implementation of HIPAA, several concerns were raised 
about this issue. Ms. Gail Shearer, the director of health policy 
analysis of the Consumers Union, testified that section 217 was 
``leading to considerable alarm among seniors'' and that she was 
``deeply troubled by the prospect of HIPAA leading to the transfer of 
elderly nursing home residents from their nursing home to prison.''
  At that same hearing, Mr. Bruce Vladek, the administrator of the 
Health Care Financing Administration, pointed out that there is no 
evidence that large numbers of the elderly are impoverishing themselves 
to become Medicaid eligible. He expressed his belief that a few people 
doing something egregious can create the perception of a widespread 
problem. It is especially unclear how pervasive this practice is, 
particularly in light of actions already taken by Congress to curb 
these asset transfers.
  Repeal of section 217 would not affect several other restrictions now 
on the books designed to close loopholes and stop the inappropriate 
transfer of assets. People found to have transferred nonexempt assets 
within a look-back period are determined ineligible and denied Medicaid 
nursing home assistance for the period over which their assets would 
have paid. The look-back period for asset transfers is 36 months, with 
a 60-month period for trusts. States are also required to establish 
estate recovery programs to compensate for nursing home services paid 
for by the Medicaid Program.
  There is no systematic study that has determined or recommended that 
the addition of criminal sanctions to the penalties which already exist 
are necessary to address inappropriate asset transfers by the elderly. 
In the absence of a demonstrated need for criminal penalties, we 
believe that section 217 holds the potential to do more harm than good.
  No one really wants to send Granny to jail. In fact, it has been 
reported that the intended targets of section 217 are those who have 
created a cottage industry, and made substantial sums of money, from 
advising the elderly on how to transfer their assets to become Medicaid 
eligible. Ironically, section 217 has had the opposite effect. Recent 
newspaper ads placed by these advisers from Portland, ME, to Phoenix, 
AZ, now use this very law to drum up business. The bold-print headlines 
of these ads read:

       Sneaky New Law Buried in the Health Insurance Bill Can Put 
     Unsuspecting Seniors and Retirees Behind Bars!, and You Only 
     Have Until December 31st, 1996, To Avoid Making the Mistake 
     That Could Toss You in Jail . . . Congress' Sneaky New Law Is 
     the Most Vicious Attack on Retirees Yet!

  Mr. President, fraud and abuse in the Medicaid Program must not be 
tolerated, and taxpayers should not have to pay nursing home bills for 
persons who have the wherewithal to pay for their own care. But neither 
should confusing, unenforceable laws be in place that impose Federal 
criminal penalties on elderly individuals where there is no clear 
understanding of what does and what does not constitute a criminal 
activity.
  Organizations urging repeal of the provision include: the American 
Association of Retired Persons, the Alzheimer's Association, the 
Leadership Council on Aging--a group of more than 40 national 
organizations in the field of aging--and the American Bar Association.
  I believe that we in the Congress owe it to our senior citizens to 
stop their needless anxiety over this misdirected, confusing law. We 
need to repeal section 217. I urge my colleagues to join me in 
repealing this unnecessary and unworkable law.
  Mr. President, I ask unanimous-consent that the text of the bill be 
printed in the Record.

[[Page S1736]]

  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 369

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

     SECTION 1. REPEAL OF CRIMINAL PENALTY FOR FRAUDULENT 
                   DISPOSITION OF ASSETS IN ORDER TO OBTAIN 
                   MEDICAID BENEFITS.

       (a) Repeal.--Section 1128B(a) of the Social Security Act 
     (42 U.S.C. 1320a-7b(a)), as amended by section 217 of the 
     Health Insurance Portability and Accountability Act of 1996 
     (Public Law 104-191; 110 Stat. 2008), is amended--
       (1) by adding ``or'' at the end of paragraph (4);
       (2) by striking ``or'' at the end of paragraph (5) and 
     inserting a comma; and
       (3) by striking paragraph (6).
       (b) Effective Date.--The amendments made by subsection (a) 
     take effect as if included in the enactment of the Health 
     Insurance Portability and Accountability Act of 1996 (Public 
     Law 104-191; 110 Stat. 1936).
  Mr. KENNEDY. Mr. President, I commend Senator Jeffords for his 
leadership on this legislation and I am honored to join him on it. Our 
bill repeals the criminal penalties enacted last year for disposing of 
assets in order to obtain Medicaid benefits.
  We all agree that Medicaid must be free of fraud and abuse. No one 
should be able to game the system by giving away their assets just to 
qualify for Medicaid, a program intended to help the truly needy.
  The criminal penalties enacted last year was a mistake and should 
never have been enacted. They are poorly drafted, and will have 
unintended consequences that penalize senior citizens unfairly. Indeed, 
this provision could frighten the most needy elderly away from seeking 
the care they need, while doing little to deter and punish those who 
defraud the system.
  No serious study has defined abusive transfers of assets as a 
significant problem, or recommended criminalizing an action that is 
already prohibited and penalized in other ways. If middle and upper 
income families are transferring assets to qualify for Medicaid, it 
should be the topic of congressional hearings and investigation, so 
that we can evaluate the scope of the problem and develop an 
appropriate response. In the meantime, seniors should not be terrorized 
with threats of jail merely for seeking nursing home care.
  The current debate over this issue reveals a much larger problem--the 
need for better coverage of long-term care, so that those requiring 
long nursing home stays don't have to sacrifice their life savings to 
pay for their care.
  There is broad bipartisan support in Congress for repeal of this 
provision. The White House supports repeal. Advocacy groups for the 
elderly support repeal. I urge Congress to act quickly on this 
legislation, and provide peace of mind to senior citizens across the 
country who feel unfairly threatened by current law.
                                 ______
                                 
      By Mr. GRASSLEY (for himself, Mr. Conrad, and Mr. Hollings):
  S. 370. A bill to amend title XVIII of the Social Security Act to 
provide for increased Medicare reimbursement for nurse practitioners 
and clinical nurse specialists to increase the delivery of health 
services in health professional shortage areas, and for other purposes; 
to the Committee on Finance.


       THE PRIMARY CARE HEALTH PRACTITIONER INCENTIVE ACT OF 1997

 Mr. GRASSLEY. Mr. President, today, on behalf of myself, 
Senator Conrad, Senator Dorgan, and Senator Hollings, I am introducing 
two bills. If enacted, these bills would increase access to primary 
care for Medicare beneficiaries in rural and inner-city communities. 
The Primary Care Health Practitioner Incentive Act of 1997 would reform 
Medicare reimbursement to nurse practitioners [NP's] and clinical nurse 
specialists [CNS's]. The Physician Assistant Incentive Act of 1997 
would reform Medicare reimbursement for physician assistants. We 
introduced these bills in the last three Congresses. We are 
reintroducing them today to improve access to primary care services for 
Medicare beneficiaries, particularly in rural and underserved areas. 
This legislation would reform Medicare policies which, under certain 
circumstances, restrict reimbursement for services delivered by these 
providers. Similar measures are included in the President's Medicare 
proposal and were part of the Balanced Budget Act of 1995.
  The Medicare Program currently covers the services of these 
practitioners. However, payment levels vary depending on treatment 
settings and geographic area. In most cases, reimbursement may not be 
made directly to the nonphysician provider. Rather, it must be made to 
the employer of the provider, often a physician. The legislation 
authorizing these different reimbursement arrangements was passed in an 
incremental fashion over the years.
  The Medicare law, which authorizes reimbursement of these providers, 
is also inconsistent with State law in many cases. For instance, in 
Iowa, State law requires nonphysicians to practice with either a 
supervising physician or a collaborating physician. However, under Iowa 
law, the supervising physician need not be physically present in the 
same facility as the nonphysician practitioner and, in many instances, 
can be located in a different site from that of the nonphysician 
practitioner he or she is supervising.
  Unfortunately, Medicare policy will not recognize such relationships. 
Instead, the law requires that the physician be present in the same 
building as the nonphysician practitioner in order for the services of 
these nonphysician providers to be reimbursed. This is known as the 
incident to provision, referring to services that are provided incident 
to a physician's services.
  This has created a problem in Iowa, Mr. President. In many parts of 
my State, clinics have been established using nonphysician 
practitioners, particularly physician assistants, to provide primary 
health care services in communities that are unable to recruit a 
physician. The presence of these practitioners insures that primary 
health care services will be available to the community. Iowa's 
Medicare carrier has strictly interpreted the incident to requirement 
of Medicare law as requiring the physical presence of a supervising 
physician in places where physician assistants practice. This has 
caused many of the clinics using physician assistants to close, and 
thus has deprived the community of primary health care services.
  Mr. President, in 1995 the Iowa Hospital Association suggested a 
number of ways to improve access and cost effectiveness in the Medicare 
Program. One of their suggestions was that this incident to restriction 
be relaxed. They said:

       In rural Iowa, most physicians are organized in solo or 
     small group practices. Physician assistants are used to 
     augment these practices. With emergency room coverage 
     requirements, absences due to vacation, continuing education 
     or illness and office hours in satellite clinics, there are 
     instances on a monthly basis where the physician assistant is 
     providing care to patients without a physician in the clinic. 
     Medicare patients in the physician clinic where the physician 
     assistant is located have to either wait for the physician to 
     return from the emergency room or care is provided without 
     this provision.

  If enacted, this legislation would establish a more uniform payment 
policy for these providers. It would authorize reimbursement of their 
services as long as they were practicing within State law and their 
professional scope of practice. It calls for reimbursement of these 
provider groups at 85 percent of the physician fee schedule for 
services they provide in all treatment settings and in all geographic 
areas. Where it is permitted under State law, reimbursement would be 
authorized even if these nonphysician providers are not under the 
direct, physical supervision of a physician.
  Currently, the services of these nonphysician practitioners are paid 
at 100 percent of the physician's rate when provided ``incident to'' a 
physician's services. If enacted, this legislation would discontinue 
this ``incident to'' policy. Medicare reimbursement would now be 
provided directly to the nurse practitioners and clinical nurse 
specialists and it would be provided to the employer of the physician 
assistant. These bills also call for a 10-percent bonus payment when 
these practitioners work in health professional shortage areas 
[HPSA's]. Senator Conrad and I believe these provisions will encourage 
nonphysician practitioners to relocate in areas in need of health care 
services.
  Mr. President, legislation closely paralleling these bills we are 
introducing today is being introduced this week in the House by 
Representatives Nancy

[[Page S1737]]

Johnson and Ed Towns. In addition, these provisions are included in the 
President's Medicare proposal. Historically, this legislation has 
received bipartisan support in both Houses. Comparable legislation was 
included in the Balanced Budget Act of 1995, as well as several other 
health care measures in previous Congresses. Therefore, I urge my 
colleagues to support this legislation.
  Mr. HOLLINGS. Mr. President, I join my colleagues Senators Conrad and 
Grassley in introducing the Primary Care Health Practitioner Incentive 
Act of 1997. Today I specifically want to address the provision that 
would allow for direct Medicare reimbursement for services provided by 
nurse practitioners and clinical nurse specialists regardless of 
geographic location. For many years we have been trying to pass 
legislation that would allow these health care providers in urban 
settings the same direct Medicare reimbursement as those in a rural 
setting, and I am hopeful that this is the year it will actually be 
enacted.
  Currently, nurse practitioners and clinical nurse specialists may 
treat Medicare patients without a physician present if they practice in 
a rural setting or in a long-term care facility. I believe that it is 
time for this antiquated restraint to practice to be removed so that 
health care choices may be improved and increased for all Medicare 
patients. If we are to have any hope of providing adequate care with 
huge reductions in both Medicare and Medicaid, it is essential that 
service be provided by the least costly provider of quality care. We 
simply cannot afford to ignore the quality care of which nurse 
practitioners and clinical nurse specialists have proven they are 
capable.
  I would also like to point out that many times there is a discrepancy 
in the designation of rural and urban areas. In my home State of South 
Carolina, as in other States, a number of the areas listed as urban 
are, in reality, rural areas. Medicare patients in these areas are 
unable to receive home visits or utilize local community satellite 
offices staffed with nurse practitioners. Rather, they are required to 
travel miles to see a physician. As a result, many patients forgo 
preventive health care and wait to seek care until they become so ill 
that they must be hospitalized or they are forced to seek care in more 
expensive emergency rooms. Not only is access to physicians more 
limited, but their fees for services are usually higher as well. Recent 
figures published by the American Academy of Nurse Practitioners 
estimate a cost savings of greater than $54 million per year if nurse 
practitioners were utilized appropriately in the provision of Medicare 
services in ambulatory care settings.
  The primary objective of nurse practitioners and clinical nurse 
specialists is to provide routine care, manage chronic conditions, 
promote preventive health care, and make medical care more accessible 
and less expensive. Nurse practitioners and clinical nurse specialists 
have proven that they are able to provide high-quality, cost-effective 
primary care in all settings in which they provide services. It is 
foolish to restrict their ability to provide primary care services to 
the elderly based on setting or geographic location, and I urge your 
consideration and the passage of this bill.
                                 ______
                                 
      By Mr. GRASSLEY (for himself, Mr. Conrad, and Mr. Hollings):
  S. 371. A bill to amend title XVIII of the Social Security Act to 
provide for increased medicare reimbursement for physician assistants, 
to increase the delivery of health services in health professional 
shortage areas, and for other purposes; to the Committee on Finance.


             THE PHYSICIAN ASSISTANT INCENTIVE ACT OF 1997

 Mr. CONRAD. Mr. President, Senator Grassley and I are again 
introducing legislation to improve Medicare reimbursement policy for 
nurse practitioners, clinical nurse specialists, and physician 
assistants. The Primary Care Health Practitioner Incentive Act and the 
Physician Assistant Incentive Act of 1997 are very similar to S. 864 
and S. 863, which we introduced in the 104th Congress. This legislation 
passed both Houses as part of reconciliation in 1995. I am very hopeful 
that this bipartisan legislation will garner widespread support and be 
signed into law as part of a Medicare reform bill this year.
  We believe our legislation will help all Americans by making the best 
possible use of primary care providers who play a vital role in our 
health care delivery infrastructure. Throughout the country, nurse 
practitioners, clinical nurse specialists and physician assistants have 
the skills to provide needed primary care services. This is 
particularly important in rural and underserved areas that have 
shortages of physicians.
  In recent years, our Nation's health care system has put a renewed 
emphasis on the use of primary care and wellness. Nurse practitioners, 
physician assistants, and clinical nurse specialists are uniquely 
positioned to provide this care. Nurse practitioners are registered 
nurses with advanced education and clinical training, often in a 
specialty area such as geriatrics or women's health. Nearly half of the 
Nation's 25,000 nurse practitioners have master's degrees. Clinical 
nurse specialists are required to have master's degrees and usually 
work in teritary care settings such as cardiac care. Many, however, 
also work in primary care. Physician assistants receive an average of 2 
years of physician-supervised clinical training and classroom 
instruction and work in all setting providing diagnostic, therapeutic, 
and preventive care services. Each of these providers work with 
physicians in varying degrees usually in consultation.
  Within their areas of competence, these health care providers deliver 
care of exceptional quality. These practitioners play a vital role in 
communities that cannot support a physician but can afford a nurse 
practitioner or physician assistant; historically, these providers have 
been willing to move to both rural and inner-city areas that are 
underserved by health care providers. In fact, there are 50 communities 
in North Dakota that are taking advantage of the services provided by 
these care givers. Unfortunately, unless we make changes in our Federal 
reimbursement scheme, many areas of the country will not be able to 
benefit from these needed services.
  Current Medicare reimbursement rules were developed in an ad hoc 
fashion; as a result, they are inconsistent, incoherent, and nearly 
inexplicable. Current law provides reimbursement for advanced practice 
nurses in rural settings. But if the same patient sees the same nurse 
practitioner in a satellite clinic in an equally rural community that 
happens to be within an MSA county, reimbursement becomes subject to 
the ``incident to'' rule that HCFA has interpreted to require the 
physical presence of a physician in the building.
  In rural North Dakota and in rural communities throughout the 
country, that scenario is often inconsistent with the realities of 
health care delivery. Doctors in these areas often rotate between 
several clinics in a region that is staffed on a full-time basis by a 
physician assistant, nurse practitioner, or other provider. This allows 
physicians to cover a wider area and affords more rural residents 
access to basic primary care services. Current Medicare rules work 
against this, however. If a Medicare patient requires care when a 
physician is away at another clinic or out on an emergency call, the 
physician assistant or other provider will not be reimbursed by 
Medicare for the same care that would have been paid for if a physician 
was in the next room.
  Moreover, if the nurse practitioner crosses the street from a free-
standing clinic to a hospital-affiliated outpatient clinic, the 
reimbursement rules change once again. Physician assistants are subject 
to an equally bewildering set of reimbursement rules that serve to 
prevent their effective use by the Medicare Program.
  Other complications also cause problems. State laws are often 
inconsistent with the Medicare requirements. In North Dakota, care 
provided by a physician assistant is reimbursed even if a physician is 
not present. Across the country, there also are a wide variety of 
payment mechanisms that result in reimbursement variations in different 
settings and among different providers. The Office of Technology 
Assessment, the Physician Payment Review Commission, and these 
providers themselves have all expressed the need for consistency and 
sensibility in a reimbursement system that acknowledges

[[Page S1738]]

the reality of today's medical marketplace. Our colleagues shared those 
sentiments in 1995 by passing this legislation in both Houses.
  The legislation Senator Grassley and I are introducing today will 
provide each of these groups with reimbursement at 85 percent of the 
physician fee schedule. They will also provide a bonus payment to those 
providers who choose to practice in areas designated as Health 
Professional Shortage Areas [HPSA's]. The health care access problems 
faced by residents of these communities could be dramatically improved 
through the use of this special class of primary care providers. 
Finally, our legislation will ensure that a nurse practitioner who 
cares for a patient will get paid directly for that service.
  This legislation offers an example how Medicare can and should 
increase access to care by promoting the use of cost-effective 
providers to a much higher degree without compromising the quality of 
care that older Americans receive. There was a clear agreement on these 
issues in the 104th Congress, and we urge our Democratic and Republican 
colleagues to continue to support this legislation in the 105th 
Congress.
                                 ______
                                 
      By Mr. GRASSLEY:
  S. 372. A bill to amend title XVIII of the Social Security Act to 
provide for a 5-year reinstatement of the Medicare-dependent, small, 
rural hospital payment provisions, and for other purposes; to the 
Committee on Finance.


       THE MEDICARE DEPENDENT HOSPITALS PROGRAM REINSTATEMENT ACT

 Mr. GRASSLEY. Mr. President, I introduce a bill which would 
reinstate the Medicare-Dependent Hospital Program.
  This program expired in October 1994. As its title implied, the 
hospitals it helped were those which were very dependent on Medicare 
reimbursement. These were small--100 beds or less--rural hospitals with 
not less than 60 percent of total discharges or with 60 percent of 
total inpatient days attributable to Medicare beneficiaries. The 
program enabled the hospitals in question to choose the most favorable 
of three reimbursement methods.
  The program was extended, and phased out down to October 1994, in the 
Omnibus Budget Reconciliation Act of 1993. That act retained the choice 
of the three original reimbursement methods. But it reduced the 
reimbursement available from those original computation methods by 50 
percent.
  My legislation would not extend the program as it was originally 
enacted by the Omnibus Budget Reconciliation Act of 1989. Rather, it 
would reinstate for 5 years the provisions contained in the Omnibus 
Budget Reconciliation Act of 1993. It would not have retroactive 
effect, however. The program would be revived for fiscal year 1998, and 
would terminate at the end of fiscal year 2002.
  As I noted above, the hospitals which would benefit from this program 
are small, rural hospitals providing an essential point of access to 
hospital and hospital-based services in rural areas and small towns. 
Obviously, if we lose these hospitals, we will also have a hard time 
keeping physicians in those communities.
  Mr. President, 44, or 36 percent, of Iowa's 122 community hospitals 
qualified to participate in this program in 1994, and 29, or 24 
percent, chose to participate. I believe that this was the largest 
number of such hospitals of any State.
  For these hospitals, the percentage of all inpatient days 
attributable to Medicare patients was 77.4 percent in 1994, and 
Medicare discharges represented 65.5 percent of total discharges. 
Across all Iowa hospitals, the Association of Iowa Hospitals and Health 
Systems indicates that the Medicare share of inpatient days and 
discharges has increased in recent years, as non-Medicare admissions 
have dropped. As a result, it is likely that the program will provide a 
lifeline for even more Iowa hospitals now than in 1994.
  The expiration of the program has had a devastating effect on many of 
these hospitals, including a number with negative operating margins. 
The bottom line is that many of these hospitals have had, and will 
have, a very difficult time continuing to exist without the Medicare-
Dependent Hospital Program.
  Mr. President, I am also going to continue to work for a limited 
service rural hospital bill. This bill will essentially extend the 
EACH/RPCH Program--the Essential Access Community Hospital and Rural 
Primary Care Hospital Program--to all the States.
  Taken together, these two pieces of legislation will allow the 
smaller hospitals in Iowa--and throughout America--to modify their 
missions in a deliberate and nondisruptive way, and to continue to 
provide the health care services essential to their 
communities.
                                 ______
                                 
      By Mr. KENNEDY:
  S. 373. A bill to amend title XXVII of the Public Health Service Act 
and part 7 of subtitle B of title I of the Employee Retirement Income 
Security Act of 1974 to establish standards for protection of consumers 
in managed care plans and other health plans; to the Committee on Labor 
and Human Resources.


            the health insurance bill of rights act of 1997

  Mr. KENNEDY. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 373

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Health 
     Insurance Bill of Rights Act of 1997''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Amendments to the Public Health Service Act.

                 ``Part C--Patient Protection Standards

``Sec. 2770. Notice; additional definitions.

                      ``Subpart 1--Access to Care

``Sec. 2771. Access to emergency care.
``Sec. 2772. Access to specialty care.
``Sec. 2773. Continuity of care.
``Sec. 2774. Choice of provider.
``Sec. 2775. Coverage for individuals participating in approved 
              clinical trials.
``Sec. 2776. Access to needed prescription drugs.

                     ``Subpart 2--Quality Assurance

``Sec. 2777. Internal quality assurance program.
``Sec. 2778. Collection of standardized data.
``Sec. 2779. Process for selection of providers.
``Sec. 2780. Drug utilization program.
``Sec. 2781. Standards for utilization review activities.

                    ``Subpart 3--Patient Information

``Sec. 2782. Patient information.
``Sec. 2783. Protection of patient confidentiality.

                   ``Subpart 4--Grievance Procedures

``Sec. 2784. Establishment of complaint and appeals process.
``Sec. 2785. Provisions relating to appeals of utilization review 
              determinations and similar determinations.
``Sec. 2786. State health insurance ombudsmen.

``Subpart 5--Protection of Providers Against Interference with Medical 
           Communications and Improper Incentive Arrangements

``Sec. 2787. Prohibition of interference with certain medical 
              communications.
``Sec. 2788. Prohibition against transfer of indemnification or 
              improper incentive arrangements.

``Subpart 6--Promoting Good Medical Practice and Protecting the Doctor-
                          Patient Relationship

``Sec. 2789. Promoting good medical practice.
Sec. 3. Amendments to the Employee Retirement Income Security Act of 
              1974.
``Sec. 713. Patient protection standards.

     SEC. 2. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.

       (a) Patient Protection Standards.--Title XXVII of the 
     Public Health Service Act is amended--
       (1) by redesignating part C as part D, and
       (2) by inserting after part B the following new part:

                 ``Part C--Patient Protection Standards

     ``SEC. 2770. NOTICE; ADDITIONAL DEFINITIONS.

       ``(a) Notice.--A health insurance issuer under this part 
     shall comply with the notice requirement under section 711(d) 
     of the Employee Retirement Income Security Act of 1974 with 
     respect to the requirements of this part as if such section 
     applied to such issuer and such issuer were a group health 
     plan.
       ``(b) Additional Definitions.--For purposes of this part:

[[Page S1739]]

       ``(1) Nonparticipating physician or provider.--The term 
     `nonparticipating physician or provider' means, with respect 
     to health care items and services furnished to an enrollee 
     under health insurance coverage, a physician or provider that 
     is not a participating physician or provider for such 
     services.
       ``(2) Participating physician or provider.--The term 
     `participating physician or provider' means, with respect to 
     health care items and services furnished to an enrollee under 
     health insurance coverage, a physician or provider that 
     furnishes such items and services under a contract or other 
     arrangement with the health insurance issuer offering such 
     coverage.

                      ``Subpart 1--Access to Care

     ``SEC. 2771. ACCESS TO EMERGENCY CARE.

       ``(a) Prohibition of Certain Restrictions on Coverage of 
     Emergency Services.
       ``(1) In general.--If health insurance coverage provides 
     any benefits with respect to emergency services (as defined 
     in paragraph (2)(B)), the health insurance issuer offering 
     such coverage shall cover emergency services furnished to an 
     enrollee--
       ``(A) without the need for any prior authorization 
     determination,
       ``(B) subject to paragraph (3), whether or not the 
     physician or provider furnishing such services is a 
     participating physician or provider with respect to such 
     services, and
       ``(C) subject to paragraph (3), without regard to any other 
     term or condition of such coverage (other than an exclusion 
     of benefits, or an affiliation or waiting period, permitted 
     under section 2701).
       ``(2) Emergency services; emergency medical condition.--For 
     purposes of this section--
       ``(A) Emergency medical condition based on prudent 
     layperson.--The term `emergency medical condition' means a 
     medical condition manifesting itself by acute symptoms of 
     sufficient severity (including severe pain) such 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 health of the individual (or, with 
     respect to a pregnant woman, the health of the woman or her 
     unborn child) in serious jeopardy,
       ``(ii) serious impairment to bodily functions, or
       ``(iii) serious dysfunction of any bodily organ or part.
       ``(B) Emergency services.--The term `emergency services' 
     means--
       ``(i) a medical screening examination (as required under 
     section 1867 of the Social Security Act) that is within the 
     capability of the emergency department of a hospital, 
     including ancillary services routinely available to the 
     emergency department, to evaluate an emergency medical 
     condition (as defined in subparagraph (A)), and
       ``(ii) within the capabilities of the staff and facilities 
     available at the hospital, such further medical examination 
     and treatment as are required under section 1867 of the 
     Social Security Act to stabilize the patient.
       ``(C) Trauma and burn centers.--The provisions of clause 
     (ii) of subparagraph (B) apply to a trauma or burn center, in 
     a hospital, that--
       ``(i) is designated by the State, a regional authority of 
     the State, or by the designee of the State, or
       ``(ii) is in a State that has not made such designations 
     and meets medically recognized national standards.
       ``(3) Application of network restriction permitted in 
     certain cases.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     if a health insurance issuer in relation to health insurance 
     coverage denies, limits, or otherwise differentiates in 
     coverage or payment for benefits other than emergency 
     services on the basis that the physician or provider of such 
     services is a nonparticipating physician or provider, the 
     issuer may deny, limit, or differentiate in coverage or 
     payment for emergency services on such basis.
       ``(B) Network restrictions not permitted in certain 
     exceptional cases.--The denial or limitation of, or 
     differentiation in, coverage or payment of benefits for 
     emergency services under subparagraph (A) shall not apply in 
     the following cases:
       ``(i) Circumstances beyond control of enrollee.--The 
     enrollee is unable to go to a participating hospital for such 
     services due to circumstances beyond the control of the 
     enrollee (as determined consistent with guidelines and 
     subparagraph (C)).
       ``(ii) Likelihood of an adverse health consequence based on 
     layperson's judgment.--A prudent layperson possessing an 
     average knowledge of health and medicine could reasonably 
     believe that, under the circumstances and consistent with 
     guidelines, the time required to go to a participating 
     hospital for such services could result in any of the adverse 
     health consequences described in a clause of subsection 
     (a)(2)(A).
       ``(iii) Physician referral.--A participating physician or 
     other person authorized by the plan refers the enrollee to an 
     emergency department of a hospital and does not specify an 
     emergency department of a hospital that is a participating 
     hospital with respect to such services.
       ``(C) Application of `beyond control' standards.--For 
     purposes of applying subparagraph (B)(i), receipt of 
     emergency services from a nonparticipating hospital shall be 
     treated under the guidelines as being `due to circumstances 
     beyond the control of the enrollee' if any of the following 
     conditions are met:
       ``(i) Unconscious.--The enrollee was unconscious or in an 
     otherwise altered mental state at the time of initiation of 
     the services.
       ``(ii) Ambulance delivery.--The enrollee was transported by 
     an ambulance or other emergency vehicle directed by a person 
     other than the enrollee to the nonparticipating hospital in 
     which the services were provided.
       ``(iii) Natural disaster.--A natural disaster or civil 
     disturbance prevented the enrollee from presenting to a 
     participating hospital for the provision of such services.
       ``(iv) No good faith effort to inform of change in 
     participation during a contract year.--The status of the 
     hospital changed from a participating hospital to a 
     nonparticipating hospital with respect to emergency services 
     during a contract year and the plan or issuer failed to make 
     a good faith effort to notify the enrollee involved of such 
     change.
       ``(v) Other conditions.--There were other factors (such as 
     those identified in guidelines) that prevented the enrollee 
     from controlling selection of the hospital in which the 
     services were provided.
       ``(b) Assuring Coordinated Coverage of Maintenance Care and 
     Post-Stabilization Care.--
       ``(1) In general.--In the case of an enrollee who is 
     covered under health insurance coverage issued by a health 
     insurance issuer and who has received emergency services 
     pursuant to a screening evaluation conducted (or supervised) 
     by a treating physician at a hospital that is a 
     nonparticipating provider with respect to emergency services, 
     if--
       ``(A) pursuant to such evaluation, the physician identifies 
     post-stabilization care (as defined in paragraph (3)(B)) that 
     is required by the enrollee,
       ``(B) the coverage provides benefits with respect to the 
     care so identified and the coverage requires (but for this 
     subsection) an affirmative prior authorization determination 
     as a condition of coverage of such care, and
       ``(C) the treating physician (or another individual acting 
     on behalf of such physician) initiates, not later than 30 
     minutes after the time the treating physician determines that 
     the condition of the enrollee is stabilized, a good faith 
     effort to contact a physician or other person authorized by 
     the issuer (by telephone or other means) to obtain an 
     affirmative prior authorization determination with respect to 
     the care,

     then, without regard to terms and conditions specified in 
     paragraph (2) the issuer shall cover maintenance care (as 
     defined in paragraph (3)(A)) furnished to the enrollee during 
     the period specified in paragraph (4) and shall cover post-
     stabilization care furnished to the enrollee during the 
     period beginning under paragraph (5) and ending under 
     paragraph (6).
       ``(2) Terms and conditions waived.--The terms and 
     conditions (of coverage) described in this paragraph that are 
     waived under paragraph (1) are as follows:
       ``(A) The need for any prior authorization determination.
       ``(B) Any limitation on coverage based on whether or not 
     the physician or provider furnishing the care is a 
     participating physician or provider with respect to such 
     care.
       ``(C) Any other term or condition of the coverage (other 
     than an exclusion of benefits, or an affiliation or waiting 
     period, permitted under section 2701 and other than a 
     requirement relating to medical necessity for coverage of 
     benefits).
       ``(3) Maintenance care and post-stabilization care 
     defined.--In this subsection:
       ``(A) Maintenance care.--The term `maintenance care' means, 
     with respect to an individual who is stabilized after 
     provision of emergency services, medically necessary items 
     and services (other than emergency services) that are 
     required by the individual to ensure that the individual 
     remains stabilized during the period described in paragraph 
     (4).
       ``(B) Post-stabilization care.--The term `post-
     stabilization care' means, with respect to an individual who 
     is determined to be stable pursuant to a medical screening 
     examination or who is stabilized after provision of emergency 
     services, medically necessary items and services (other than 
     emergency services and other than maintenance care) that are 
     required by the individual.
       ``(4) Period of required coverage of maintenance care.--The 
     period of required coverage of maintenance care of an 
     individual under this subsection begins at the time of the 
     request (or the initiation of the good faith effort to make 
     the request) under paragraph (1)(C) and ends when--
       ``(A) the individual is discharged from the hospital;
       ``(B) a physician (designated by the issuer involved) and 
     with privileges at the hospital involved arrives at the 
     emergency department of the hospital and assumes 
     responsibility with respect to the treatment of the 
     individual; or
       ``(C) the treating physician and the issuer agree to 
     another arrangement with respect to the care of the 
     individual.
       ``(5) When post-stabilization care required to be 
     covered.--
       ``(A) When treating physician unable to communicate 
     request.--If the treating physician or other individual makes 
     the good faith effort to request authorization under

[[Page S1740]]

     paragraph (1)(C) but is unable to communicate the request 
     directly with an authorized person referred to in such 
     paragraph within 30 minutes after the time of initiating such 
     effort, then post-stabilization care is required to be 
     covered under this subsection beginning at the end of such 
     30-minute period.
       ``(B) When able to communicate request, and no timely 
     response.--
       ``(i) In general.--If the treating physician or other 
     individual under paragraph (1)(C) is able to communicate the 
     request within the 30-minute period described in subparagraph 
     (A), the post-stabilization care requested is required to be 
     covered under this subsection beginning 30 minutes after the 
     time when the issuer receives the request unless a person 
     authorized by the plan or issuer involved communicates (or 
     makes a good faith effort to communicate) a denial of the 
     request for the prior authorization determination within 30 
     minutes of the time when the issuer receives the request and 
     the treating physician does not request under clause (ii) to 
     communicate directly with an authorized physician concerning 
     the denial.
       ``(ii) Request for direct physician-to-physician 
     communication concerning denial.--If a denial of a request is 
     communicated under clause (i), the treating physician may 
     request to communicate respecting the denial directly with a 
     physician who is authorized by the issuer to deny or affirm 
     such a denial.
       ``(C) When no timely response to request for physician-to-
     physician communication.--If a request for physician-to-
     physician communication is made under subparagraph (B)(ii), 
     the post-stabilization care requested is required to be 
     covered under this subsection beginning 30 minutes after the 
     time when the issuer receives the request from a treating 
     physician unless a physician, who is authorized by the issuer 
     to reverse or affirm the initial denial of the care, 
     communicates (or makes a good faith effort to communicate) 
     directly with the treating physician within such 30-minute 
     period.
       ``(D) Disagreements over post-stabilization care.--If, 
     after a direct physician-to-physician communication under 
     subparagraph (C), the denial of the request for the post-
     stabilization care is not reversed and the treating physician 
     communicates to the issuer involved a disagreement with such 
     decision, the post-stabilization care requested is required 
     to be covered under this subsection beginning as follows:
       ``(i) Delay to allow for prompt arrival of physician 
     assuming responsibility.--If the issuer communicates that a 
     physician (designated by the plan or issuer) with privileges 
     at the hospital involved will arrive promptly (as determined 
     under guidelines) at the emergency department of the hospital 
     in order to assume responsibility with respect to the 
     treatment of the enrollee involved, the required coverage of 
     the post-stabilization care begins after the passage of such 
     time period as would allow the prompt arrival of such a 
     physician.
       ``(ii) Other cases.--If the issuer does not so communicate, 
     the required coverage of the post-stabilization care begins 
     immediately.
       ``(6) No requirement of coverage of post-stabilization care 
     if alternate plan of treatment.--
       ``(A) In general.--Coverage of post-stabilization care is 
     not required under this subsection with respect to an 
     individual when--
       ``(i) subject to subparagraph (B), a physician (designated 
     by the plan or issuer involved) and with privileges at the 
     hospital involved arrives at the emergency department of the 
     hospital and assumes responsibility with respect to the 
     treatment of the individual; or
       ``(ii) the treating physician and the issuer agree to 
     another arrangement with respect to the post-stabilization 
     care (such as an appropriate transfer of the individual 
     involved to another facility or an appointment for timely 
     followup treatment for the individual).
       ``(B) Special rule where once care initiated.--Required 
     coverage of requested post-stabilization care shall not end 
     by reason of subparagraph (A)(i) during an episode of care 
     (as determined by guidelines) if the treating physician 
     initiated such care (consistent with a previous paragraph) 
     before the arrival of a physician described in such 
     subparagraph.
       ``(7) Construction.--Nothing in this subsection shall be 
     construed as--
       ``(A) preventing an issuer from authorizing coverage of 
     maintenance care or post-stabilization care in advance or at 
     any time; or
       ``(B) preventing a treating physician or other individual 
     described in paragraph (1)(C) and an issuer from agreeing to 
     modify any of the time periods specified in paragraphs (5) as 
     it relates to cases involving such persons.
       ``(c) Limits on Cost-Sharing for Services Furnished in 
     Emergency Departments.--If health insurance coverage provides 
     any benefits with respect to emergency services, the health 
     insurance issuer offering such coverage may impose cost 
     sharing with respect to such services only if the following 
     conditions are met:
       ``(1) Limitations on cost-sharing differential for 
     nonparticipating providers.--
       ``(A) No differential for certain services.--In the case of 
     services furnished under the circumstances described in 
     clause (i), (ii), or (iii) of subsection (a)(3)(B) (relating 
     to circumstances beyond the control of the enrollee, the 
     likelihood of an adverse health consequence based on 
     layperson's judgment, and physician referral), the cost-
     sharing for such services provided by a nonparticipating 
     provider or physician does not exceed the cost-sharing for 
     such services provided by a participating provider or 
     physician.
       ``(B) Only reasonable differential for other services.--In 
     the case of other emergency services, any differential by 
     which the cost-sharing for such services provided by a 
     nonparticipating provider or physician exceeds the cost-
     sharing for such services provided by a participating 
     provider or physician is reasonable (as determined under 
     guidelines).
       ``(2) Only reasonable differential between emergency 
     services and other services.--Any differential by which the 
     cost-sharing for services furnished in an emergency 
     department exceeds the cost-sharing for such services 
     furnished in another setting is reasonable (as determined 
     under guidelines).
       ``(3) Construction.--Nothing in paragraph (1)(B) or (2) 
     shall be construed as authorizing guidelines other than 
     guidelines that establish maximum cost-sharing differentials.
       ``(d) Information on Access to Emergency Services.--A 
     health insurance issuer, to the extent a health insurance 
     issuer offers health insurance coverage, shall provide 
     education to enrollees on--
       ``(1) coverage of emergency services (as defined in 
     subsection (a)(2)(B)) by the issuer in accordance with the 
     provisions of this section,
       ``(2) the appropriate use of emergency services, including 
     use of the 911 telephone system or its local equivalent,
       ``(3) any cost sharing applicable to emergency services,
       ``(4) the process and procedures of the plan for obtaining 
     emergency services, and
       ``(5) the locations of--
       ``(A) emergency departments, and
       ``(B) other settings,

     in which participating physicians and hospitals provide 
     emergency services and post-stabilization care.
       ``(e) General Definitions.--For purposes of this section:
       ``(1) Cost sharing.--The term `cost sharing' means any 
     deductible, coinsurance amount, copayment or other out-of-
     pocket payment (other than premiums or enrollment fees) that 
     a health insurance issuer offering health insurance issuer 
     imposes on enrollees with respect to the coverage of 
     benefits.
       ``(2) Good faith effort.--The term `good faith effort' has 
     the meaning given such term in guidelines and requires such 
     appropriate documentation as is specified under such 
     guidelines.
       ``(3) Guidelines.--The term `guidelines' means guidelines 
     established by the Secretary after consultation with an 
     advisory panel that includes individuals representing 
     emergency physicians, health insurance issuers, including at 
     least one health maintenance organization, hospitals, 
     employers, the States, and consumers.
       ``(4) Prior authorization determination.--The term `prior 
     authorization determination' means, with respect to items and 
     services for which coverage may be provided under health 
     insurance coverage, a determination (before the provision of 
     the items and services and as a condition of coverage of the 
     items and services under the coverage) of whether or not such 
     items and services will be covered under the coverage.
       ``(5) Stabilize.--The term `to stabilize' means, with 
     respect to an emergency medical condition, to provide (in 
     complying with section 1867 of the Social Security Act) such 
     medical treatment of the condition as may be necessary to 
     assure, within reasonable medical probability, that no 
     material deterioration of the condition is likely to result 
     from or occur during the transfer of the individual from the 
     facility.
       ``(6) Stabilized.--The term `stabilized' means, with 
     respect to an emergency medical condition, that no material 
     deterioration of the condition is likely, within reasonable 
     medical probability, to result from or occur before an 
     individual can be transferred from the facility, in 
     compliance with the requirements of section 1867 of the 
     Social Security Act.
       ``(7) Treating physician.--The term `treating physician' 
     includes a treating health care professional who is licensed 
     under State law to provide emergency services other than 
     under the supervision of a physician.

     ``SEC. 2772. ACCESS TO SPECIALTY CARE.

       ``(a) Obstetrical and Gynecological Care.--
       ``(1) In general.--If a health insurance issuer, in 
     connection with the provision of health insurance coverage, 
     requires or provides for an enrollee to designate a 
     participating primary care provider--
       ``(A) the issuer shall permit a female enrollee to 
     designate a physician who specializes in obstetrics and 
     gynecology as the enrollee's primary care provider; and
       ``(B) if such an enrollee has not designated such a 
     provider as a primary care provider, the issuer--
       ``(i) may not require prior authorization by the enrollee's 
     primary care provider or otherwise for coverage of routine 
     gynecological care (such as preventive women's health 
     examinations) and pregnancy-related services provided by a 
     participating physician who specializes in obstetrics and 
     gynecology to

[[Page S1741]]

     the extent such care is otherwise covered, and
       ``(ii) may treat the ordering of other gynecological care 
     by such a participating physician as the prior authorization 
     of the primary care provider with respect to such care under 
     the coverage.
       ``(2) Construction.--Nothing in paragraph (1)(B)(ii) shall 
     waive any requirements of coverage relating to medical 
     necessity or appropriateness with respect to coverage of 
     gynecological care so ordered.
       ``(b) Specialty Care.--
       ``(1) Referral to specialty care for enrollees requiring 
     treatment by specialists.--
       ``(A) In general.--In the case of an enrollee who is 
     covered under health insurance coverage offered by a health 
     insurance issuer and who has a condition or disease of 
     sufficient seriousness and complexity to require treatment by 
     a specialist, the issuer shall make or provide for a referral 
     to a specialist who is available and accessible to provide 
     the treatment for such condition or disease.
       ``(B) Specialist defined.--For purposes of this subsection, 
     the term `specialist' means, with respect to a condition, a 
     health care practitioner, facility, or center (such as a 
     center of excellence) that has adequate expertise through 
     appropriate training and experience (including, in the case 
     of a child, appropriate pediatric expertise) to provide high 
     quality care in treating the condition.
       ``(C) Care under referral.--Care provided pursuant to such 
     referral under subparagraph (A) shall be--
       ``(i) pursuant to a treatment plan (if any) developed by 
     the specialist and approved by the issuer, in consultation 
     with the designated primary care provider or specialist and 
     the enrollee (or the enrollee's designee), and
       ``(ii) in accordance with applicable quality assurance and 
     utilization review standards of the issuer.

     Nothing in this subsection shall be construed as preventing 
     such a treatment plan for an enrollee from requiring a 
     specialist to provide the primary care provider with regular 
     updates on the specialty care provided, as well as all 
     necessary medical information.
       ``(D) Referrals to participating providers.--An issuer is 
     not required under subparagraph (A) to provide for a referral 
     to a specialist that is not a participating provider, unless 
     the issuer does not have an appropriate specialist that is 
     available and accessible to treat the enrollee's condition 
     and that is a participating provider with respect to such 
     treatment.
       ``(E) Treatment of nonparticipating providers.--If an 
     issuer refers an enrollee to a nonparticipating specialist, 
     services provided pursuant to the approved treatment plan 
     shall be provided at no additional cost to the enrollee 
     beyond what the enrollee would otherwise pay for services 
     received by such a specialist that is a participating 
     provider.
       ``(2) Specialists as primary care providers.--
       ``(A) In general.--A health insurance issuer, in connection 
     with the provision of health insurance coverage, shall have a 
     procedure by which a new enrollee upon enrollment, or an 
     enrollee upon diagnosis, with an ongoing special condition 
     (as defined in subparagraph (C)) may receive a referral to a 
     specialist for such condition who shall be responsible for 
     and capable of providing and coordinating the enrollee's 
     primary and specialty care. If such an enrollee's care would 
     most appropriately be coordinated by such a specialist, the 
     issuer shall refer the enrollee to such specialist.
       ``(B) Treatment as primary care provider.--Such specialist 
     shall be permitted to treat the enrollee without a referral 
     from the enrollee's primary care provider and may authorize 
     such referrals, procedures, tests, and other medical services 
     as the enrollee's primary care provider would otherwise be 
     permitted to provide or authorize, subject to the terms of 
     the treatment plan (referred to in paragraph (1)(C)(i)).
       ``(C) Ongoing special condition defined.--In this 
     paragraph, the term `special condition' means a condition or 
     disease that--
       ``(i) is life-threatening, degenerative, or disabling, and
       ``(ii) requires specialized medical care over a prolonged 
     period of time.
       ``(D) Terms of referral.--The provisions of subparagraphs 
     (C) through (E) of paragraph (1) shall apply with respect to 
     referrals under subparagraph (A) of this paragraph in the 
     same manner as they apply to referrals under paragraph 
     (1)(A).
       ``(3) Standing referrals.--
       ``(A) In general.--A health insurance issuer, in connection 
     with the provision of health insurance coverage, shall have a 
     procedure by which an enrollee who has a condition that 
     requires ongoing care from a specialist may receive a 
     standing referral to such specialist for treatment of such 
     condition. If the issuer, or the primary care provider in 
     consultation with the medical director of the issuer and the 
     specialist (if any), determines that such a standing referral 
     is appropriate, the issuer shall make such a referral to such 
     a specialist.
       ``(C) Terms of referral.--The provisions of subparagraphs 
     (C) through (E) of paragraph (1) shall apply with respect to 
     referrals under subparagraph (A) of this paragraph in the 
     same manner as they apply to referrals under paragraph 
     (1)(A).

     ``SEC. 2773. CONTINUITY OF CARE.

       ``(a) In General.--If a contract between a health insurance 
     issuer, in connection with the provision of health insurance 
     coverage, and a health care provider is terminated (other 
     than by the issuer for failure to meet applicable quality 
     standards or for fraud) and an enrollee is undergoing a 
     course of treatment from the provider at the time of such 
     termination, the issuer shall--
       ``(1) notify the enrollee of such termination, and
       ``(2) subject to subsection (c), permit the enrollee to 
     continue the course of treatment with the provider during a 
     transitional period (provided under subsection (b)).
       ``(b) Transitional Period.--
       ``(1) In general.--Except as provided in paragraphs (2) 
     through (4), the transitional period under this subsection 
     shall extend for at least--
       ``(A) 60 days from the date of the notice to the enrollee 
     of the provider's termination in the case of a primary care 
     provider, or
       ``(B) 120 days from such date in the case of another 
     provider.
       ``(2) Institutional care.--The transitional period under 
     this subsection for institutional or inpatient care from a 
     provider shall extend until the discharge or termination of 
     the period of institutionalization and shall include 
     reasonable follow-up care related to the institutionalization 
     and shall also include institutional care scheduled prior to 
     the date of termination of the provider status.
       ``(3) Pregnancy.--If--
       ``(A) an enrollee has entered the second trimester of 
     pregnancy at the time of a provider's termination of 
     participation, and
       ``(B) the provider was treating the pregnancy before date 
     of the termination,

     the transitional period under this subsection with respect to 
     provider's treatment of the pregnancy shall extend through 
     the provision of post-partum care directly related to the 
     delivery.
       ``(4) Terminal illness.--
       ``(A) In general.--If--
       ``(i) an enrollee was determined to be terminally ill (as 
     defined in subparagraph (B)) at the time of a provider's 
     termination of participation, and
       ``(ii) the provider was treating the terminal illness 
     before the date of termination,

     the transitional period under this subsection shall extend 
     for the remainder of the enrollee's life for care directly 
     related to the treatment of the terminal illness.
       ``(B) Definition.--In subparagraph (A), an enrollee is 
     considered to be `terminally ill' if the enrollee has a 
     medical prognosis that the enrollee's life expectancy is 6 
     months or less.
       ``(c) Permissible Terms and Conditions.--An issuer may 
     condition coverage of continued treatment by a provider under 
     subsection (a)(2) upon the provider agreeing to the following 
     terms and conditions:
       ``(1) The provider agrees to continue to accept 
     reimbursement from the issuer at the rates applicable prior 
     to the start of the transitional period as payment in full.
       ``(2) The provider agrees to adhere to the issuer's quality 
     assurance standards and to provide to the issuer necessary 
     medical information related to the care provided.
       ``(3) The provider agrees otherwise to adhere to the 
     issuer's policies and procedures, including procedures 
     regarding referrals and obtaining prior authorization and 
     providing services pursuant to a treatment plan approved by 
     the issuer.

     ``SEC. 2774. CHOICE OF PROVIDER.

       ``(a) Primary Care.--A health insurance issuer that offers 
     health insurance coverage shall permit each enrollee to 
     receive primary care from any participating primary care 
     provider who is available to accept such enrollee.
       ``(b) Specialists.--
       ``(1) In general.--Subject to paragraph (2), a health 
     insurance issuer that offers health insurance coverage shall 
     permit each enrollee to receive medically necessary specialty 
     care, pursuant to appropriate referral procedures, from any 
     qualified participating health care provider who is available 
     to accept such enrollee for such care.
       ``(2) Limitation.--Paragraph (1) shall not apply to 
     speciality care if the issuer clearly informs enrollees of 
     the limitations on choice of participating providers with 
     respect to such care.
       ``(c) List of Participating Providers.--For disclosure of 
     information about participating primary care and specialty 
     care providers, see section 2782(b)(3).

     ``SEC. 2775. COVERAGE FOR INDIVIDUALS PARTICIPATING IN 
                   APPROVED CLINICAL TRIALS.

       ``(a) In General.--If a health insurance issuer offers 
     health insurance coverage to a qualified enrollee (as defined 
     in subsection (b)), the issuer--
       ``(1) may not deny the enrollee participation in the 
     clinical trial referred to in subsection (b)(2);
       ``(2) subject to subsection (c), may not deny (or limit or 
     impose additional conditions on) the coverage of routine 
     patient costs for items and services furnished in connection 
     with participation in the trial; and
       ``(3) may not discriminate against the enrollee on the 
     basis of the enrollee's participation in such trial.
       ``(b) Qualified Enrollee Defined.--For purposes of 
     subsection (a), the term `qualified enrollee' means an 
     enrollee under health insurance coverage who meets the 
     following conditions:
       ``(1) The enrollee has a life-threatening or serious 
     illness for which no standard treatment is effective.

[[Page S1742]]

       ``(2) The enrollee is eligible to participate in an 
     approved clinical trial with respect to treatment of such 
     illness.
       ``(3) The enrollee and the referring physician conclude 
     that the enrollee's participation in such trial would be 
     appropriate.
       ``(4) The enrollee's participation in the trial offers 
     potential for significant clinical benefit for the enrollee.
       ``(c) Payment.--
       ``(1) In general.--Under this section an issuer shall 
     provide for payment for routine patient costs described in 
     subsection (a)(2) but is not required to pay for costs of 
     items and services that are reasonably expected (as 
     determined by the Secretary) to be paid for by the sponsors 
     of an approved clinical trial.
       ``(2) Payment rate.--In the case of covered items and 
     services provided by--
       ``(A) a participating provider, the payment rate shall be 
     at the agreed upon rate, or
       ``(B) a nonparticipating provider, the payment rate shall 
     be at the rate the issuer would normally pay for comparable 
     services under subparagraph (A).
       ``(d) Approved Clinical Trial Defined.--In this section, 
     the term `approved clinical trial' means a clinical research 
     study or clinical investigation approved and funded by one or 
     more of the following:
       ``(1) The National Institutes of Health.
       ``(2) A cooperative group or center of the National 
     Institutes of Health.
       ``(3) The Department of Veterans Affairs.
       ``(4) The Department of Defense.

     ``SEC. 2776. ACCESS TO NEEDED PRESCRIPTION DRUGS.

       ``If a health insurance issuer offers health insurance 
     coverage that provides benefits with respect to prescription 
     drugs but the coverage limits such benefits to drugs included 
     in a formulary, the issuer shall--
       ``(1) ensure participation of participating physicians in 
     the development of the formulary;
       ``(2) disclose the nature of the formulary restrictions; 
     and
       ``(3) provide for exceptions from the formulary limitation 
     when medical necessity, as determined by the enrollee's 
     physician subject to reasonable review by the issuer, 
     dictates that a non-formulary alternative is indicated.

                     ``Subpart 2--Quality Assurance

     ``SEC. 2777. INTERNAL QUALITY ASSURANCE PROGRAM.

       ``(a) Requirement.--A health insurance issuer that offers 
     health insurance coverage shall establish and maintain an 
     ongoing, internal quality assurance and continuous quality 
     improvement program that meets the requirements of subsection 
     (b).
       ``(b) Program Requirements.--The requirements of this 
     subsection for a quality improvement program of an issuer are 
     as follows:
       ``(1) Administration.--The issuer has a separate 
     identifiable unit with responsibility for administration of 
     the program.
       ``(2) Written plan.--The issuer has a written plan for the 
     program that is updated annually and that specifies at least 
     the following:
       ``(A) The activities to be conducted.
       ``(B) The organizational structure.
       ``(C) The duties of the medical director.
       ``(D) Criteria and procedures for the assessment of 
     quality.
       ``(E) Systems for ongoing and focussed evaluation 
     activities.
       ``(3) Systematic review.--The program provides for 
     systematic review of the type of health services provided, 
     consistency of services provided with good medical practice, 
     and patient outcomes.
       ``(4) Quality criteria.--The program--
       ``(A) uses criteria that are based on performance and 
     clinical outcomes where feasible and appropriate, and
       ``(B) includes criteria that are directed specifically at 
     meeting the needs of at-risk populations and enrollees with 
     chronic or severe illnesses.
       ``(5) System for reporting.--The program has procedures for 
     reporting of possible quality concerns by providers and 
     enrollees and for remedial actions to correct quality 
     problems, including written procedures for responding to 
     concerns and taking appropriate corrective action.
       ``(6) Data collection.--The program provides for the 
     collection of systematic, scientifically based data to be 
     used in the measure of quality.
       ``(c) Deeming.--For purposes of subsection (a), the 
     requirements of subsection (b) are deemed to be met with 
     respect to a health insurance issuer if the issuer--
       ``(1) is a qualified health maintenance organization (as 
     defined in section 1310(d)), or
       ``(2) is accredited by a national accreditation 
     organization that is certified by the Secretary.

     ``SEC. 2778. COLLECTION OF STANDARDIZED DATA.

       ``(a) In General.--A health insurance issuer that offers 
     health insurance coverage shall collect uniform quality data 
     that include--
       ``(1) a minimum uniform data set described in subsection 
     (b), and
       ``(2) additional data that are consistent with the 
     requirements of a nationally recognized body identified by 
     the Secretary.
       ``(b) Minimum Uniform Data Set.--The Secretary shall 
     specify the data required to be included in the minimum 
     uniform data set under subsection (a)(1) and the standard 
     format for such data. Such data shall include at least--
       ``(1) aggregate utilization data;
       ``(2) data on the demographic characteristics of enrollees;
       ``(3) data on disease-specific and age-specific mortality 
     rates of enrollees;
       ``(4) data on enrollee satisfaction, including data on 
     enrollee disenrollment and grievances; and
       ``(5) data on quality indicators.
       ``(c) Availability.--A summary of the data collected under 
     subsection (a) shall be disclosed under section 2782(b)(4).

     ``SEC. 2779. PROCESS FOR SELECTION OF PROVIDERS.

       ``(a) In General.--A health insurance issuer that offers 
     health insurance coverage shall have a written process for 
     the selection of participating health care professionals, 
     including minimum professional requirements.
       ``(b) Verification of Background.--Such process shall 
     include verification of a health care provider's license, a 
     history of suspension or revocation, and liability claim 
     history.
       ``(c) Restriction.--Such process shall not use a high-risk 
     patient base or location of a provider in an area with 
     residents with poorer health status as a basis for excluding 
     providers from participation.

     ``SEC. 2780. DRUG UTILIZATION PROGRAM.

       ``A health insurance issuer that provides health insurance 
     coverage that includes benefits for prescription drugs shall 
     establish and maintain a drug utilization program which--
       ``(1) encourages appropriate use of prescription drugs by 
     enrollees and providers,
       ``(2) monitors illnesses arising from improper drug use or 
     from adverse drug reactions or interactions, and
       ``(3) takes appropriate action to reduce the incidence of 
     improper drug use and adverse drug reactions and 
     interactions.

     ``SEC. 2781. STANDARDS FOR UTILIZATION REVIEW ACTIVITIES.

       ``(a) Compliance with Requirements.--
       ``(1) In general.--A health insurance issuer shall conduct 
     utilization review activities in connection with the 
     provision of health insurance coverage only in accordance 
     with a utilization review program that meets the requirements 
     of this section.
       ``(2) Use of outside agents.--Nothing in this section shall 
     be construed as preventing a health insurance issuer from 
     arranging through a contract or otherwise for persons or 
     entities to conduct utilization review activities on behalf 
     of the issuer, so long as such activities are conducted in 
     accordance with a utilization review program that meets the 
     requirements of this section.
       ``(3) Utilization review defined.--For purposes of this 
     section, the terms `utilization review' and `utilization 
     review activities' mean procedures used to monitor or 
     evaluate the clinical necessity, appropriateness, efficacy, 
     or efficiency of health care services, procedures or 
     settings, and includes ambulatory review, prospective review, 
     concurrent review, second opinions, case management, 
     discharge planning, or retrospective review.
       ``(b) Written Policies and Criteria.--
       ``(1) Written policies.--A utilization review program shall 
     be conducted consistent with written policies and procedures 
     that govern all aspects of the program.
       ``(2) Use of written criteria.--
       ``(A) In general.--Such a program shall utilize written 
     clinical review criteria developed pursuant to the program 
     with the input of appropriate physicians.
       ``(B) Continuing use of standards in retrospective 
     review.--If a health care service has been specifically pre-
     authorized or approved for an enrollee under such a program, 
     the program shall not, pursuant to retrospective review, 
     revise or modify the specific standards, criteria, or 
     procedures used for the utilization review for procedures, 
     treatment, and services delivered to the enrollee during the 
     same course of treatment.
       ``(C) No adverse determination based on refusal to observe 
     service.--Such a program shall not base an adverse 
     determination on--
       ``(i) a refusal to consent to observing any health care 
     service, or
       ``(ii) lack of reasonable access to a health care 
     provider's medical or treatment records, unless the program 
     has provided reasonable notice to the enrollee.
       ``(c) Conduct of Program Activities.--
       ``(1) Administration by health care professionals.--A 
     utilization review program shall be administered by qualified 
     health care professionals who shall oversee review decisions. 
     In this subsection, the term `health care professional' means 
     a physician or other health care practitioner licensed, 
     accredited, or certified to perform specified health services 
     consistent with State law.
       ``(2) Use of qualified, independent personnel.--
       ``(A) In general.--A utilization review program shall 
     provide for the conduct of utilization review activities only 
     through personnel who are qualified and, to the extent 
     required, who have received appropriate training in the 
     conduct of such activities under the program.
       ``(B) Peer review of adverse clinical determinations.--Such 
     a program shall provide that clinical peers shall evaluate 
     the clinical appropriateness of adverse clinical 
     determinations. In this subsection, the term `clinical peer' 
     means, with respect to a review, a physician or other health 
     care professional who holds a non-restricted license in a 
     State and in the same or similar specialty as typically 
     manages the medical condition, procedure, or treatment under 
     review.

[[Page S1743]]

       ``(C) Prohibition of contingent compensation 
     arrangements.--Such a program shall not, with respect to 
     utilization review activities, permit or provide compensation 
     or anything of value to its employees, agents, or contractors 
     in a manner that--
       ``(i) provides incentives, direct or indirect, for such 
     persons to make inappropriate review decisions, or
       ``(ii) is based, directly or indirectly, on the quantity or 
     type of adverse determinations rendered.
       ``(D) Prohibition of conflicts.--Such a program shall not 
     permit a health care professional who provides health care 
     services to an enrollee to perform utilization review 
     activities in connection with the health care services being 
     provided to the enrollee.
       ``(3) Toll-free telephone number.--Such a program shall 
     provide that--
       ``(A) appropriate personnel performing utilization review 
     activities under the program are reasonably accessible by 
     toll-free telephone not less than 40 hours per week during 
     normal business hours to discuss patient care and allow 
     response to telephone requests, and
       ``(B) the program has a telephone system capable of 
     accepting, recording, or providing instruction to incoming 
     telephone calls during other than normal business hours and 
     to ensure response to accepted or recorded messages not less 
     than one business day after the date on which the call was 
     received.
       ``(4) Limits on frequency.--Such a program shall not 
     provide for the performance of utilization review activities 
     with respect to a class of services furnished to an enrollee 
     more frequently than is reasonably required to assess whether 
     the services under review are medically necessary.
       ``(5) Limitation on information requests.--Under such a 
     program, information shall be required to be provided by 
     health care providers only to the extent it is necessary to 
     perform the utilization review activity involved.
       ``(d) Deadline for Determinations.--
       ``(1) Prior authorization services.--Except as provided in 
     paragraph (2), in the case of a utilization review activity 
     involving the prior authorization of health care items and 
     services, the utilization review program shall make a 
     determination concerning such authorization, and provide 
     notice of the determination to the enrollee or the enrollee's 
     designee and the enrollee's health care provider by telephone 
     and in writing, as soon as possible in accordance with the 
     medical exigencies of the cases, and in no event later than 3 
     business days after the date of receipt of the necessary 
     information respecting such determination.
       ``(2) Continued care.--In the case of a utilization review 
     activity involving authorization for continued or extended 
     health care services, or additional services for an enrollee 
     undergoing a course of continued treatment prescribed by a 
     health care provider, the utilization review program shall 
     make a determination concerning such authorization, and 
     provide notice of the determination to the enrollee or the 
     enrollee's designee and the enrollee's health care provider 
     by telephone and in writing, within 1 business day of the 
     date of receipt of the necessary information respecting such 
     determination. Such notice shall include, with respect to 
     continued or extended health care services, the number of 
     extended services approved, the new total of approved 
     services, the date of onset of services, and the next review 
     date.
       ``(3) Previously provided services.--In the case of a 
     utilization review activity involving retrospective review of 
     health care services previously provided, the utilization 
     review program shall make a the determination concerning such 
     services, and provide notice of the determination to the 
     enrollee or the enrollee's designee and the enrollee's health 
     care provider by telephone and in writing, within 30 days of 
     the date of receipt of the necessary information respecting 
     such determination.
       ``(4) Reference to special rules for emergency services, 
     maintenance care, and post-stabilization care.--For waiver of 
     prior authorization requirements in certain cases involving 
     emergency services and maintenance care and post-
     stabilization care, see sections 2771(a)(1)(A) and 
     2771(a)(2)(A), respectively.
       ``(e) Notice of Adverse Determinations.--
       ``(1) In general.--Notice of an adverse determination under 
     a utilization review program (including as a result of a 
     reconsideration under subsection (f)) shall be in writing and 
     shall include--
       ``(A) the reasons for the determination (including the 
     clinical rationale);
       ``(B) instructions on how to initiate an appeal under 
     section 2785; and
       ``(C) notice of the availability, upon request of the 
     enrollee (or the enrollee's designee) of the clinical review 
     criteria relied upon to make such determination.
       ``(2) Specification of any additional information.--Such a 
     notice shall also specify what (if any) additional necessary 
     information must be provided to, or obtained by, person 
     making the determination in order to make a decision on such 
     an appeal.
       ``(f) Reconsideration.--
       ``(1) At request of provider.--In the event that a 
     utilization review program provides for an adverse 
     determination without attempting to discuss such matter with 
     the enrollee's health care provider who specifically 
     recommended the health care service, procedure, or treatment 
     under review, such health care provider shall have the 
     opportunity to request a reconsideration of the adverse 
     determination under this subsection.
       ``(2) Timing and conduct.--Except in cases of retrospective 
     reviews, such reconsideration shall occur as soon as possible 
     in accordance with the medical exigencies of the cases, and 
     in no event later than 1 business day after the date of 
     receipt of the request and shall be conducted by the 
     enrollee's health care provider and the health care 
     professional making the initial determination or a designated 
     qualified health care professional if the original 
     professional cannot be available.
       ``(3) Notice.--In the event that the adverse determination 
     is upheld after reconsideration, the utilization review 
     program shall provide notice as required under subsection 
     (e).
       ``(4) Construction.--Nothing in this subsection shall 
     preclude the enrollee from initiating an appeal from an 
     adverse determination under section 2785.

                    ``Subpart 3--Patient Information

     ``SEC. 2782. PATIENT INFORMATION.

       ``(a) Disclosure Requirement.--A health insurance issuer in 
     connection with the provision of health insurance coverage 
     shall submit to the applicable State authority, provide to 
     enrollees (and prospective enrollees), and make available to 
     the public, in writing the information described in 
     subsection (b).
       ``(b) Information.--The information described in this 
     subsection includes the following:
       ``(1) Description of coverage.--A description of coverage 
     provisions, including health care benefits, benefit limits, 
     coverage exclusions, coverage of emergency care, and the 
     definition of medical necessity used in determining whether 
     benefits will be covered.
       ``(2) Enrollee financial responsibility.-- An explanation 
     of an enrollee's financial responsibility for payment of 
     premiums, coinsurance, copayments, deductibles, and any other 
     charges, including limits on such responsibility and 
     responsibility for health care services that are provided by 
     nonparticipating providers or are furnished without meeting 
     applicable utilization review requirements.
       ``(3) Information on providers.--A description--
       ``(A) of procedures for enrollees to select, access, and 
     change participating primary and specialty providers,
       ``(B) of the rights and procedures for obtaining referrals 
     (including standing referrals) to participating and 
     nonparticipating providers, and
       ``(C) in the case of each participating provider, of the 
     name, address, and telephone number of the provider, the 
     credentials of the provider, and the provider's availability 
     to accept new patients.
       ``(4) Utilization review activities.--A description of 
     procedures used and requirements (including circumstances, 
     time frames, and rights to reconsideration and appeal) under 
     any utilization review program under section 2781 or any drug 
     utilization program under section 2780, as well as a summary 
     of the minimum uniform data collected under section 
     2778(a)(1).
       ``(5) Grievance procedures.--Information on the grievance 
     procedures under sections 2784 and 2785, including 
     information describing--
       ``(A) the grievance procedures used by the issuer to 
     process and resolve disputes between the issuer and an 
     enrollee (including method for filing grievances and the time 
     frames and circumstances for acting on grievances);
       ``(B) written complaints and appeals, by type of complaint 
     or appeal, received by the issuer relating to its coverage; 
     and
       ``(C) the disposition of such complaints and appeals.
       ``(6) Payment methodology.--A description of the types of 
     methodologies the issuer uses to reimburse different classes 
     of providers and, as specified by the Secretary, the 
     financial arrangements or contractual provisions with 
     providers.
       ``(7) Information on issuer.--Notice of appropriate mailing 
     addresses and telephone numbers to be used by enrollees in 
     seeking information or authorization for treatment.
       ``(8) Assuring communications with enrollees.--A 
     description of how the issuer addresses the needs of non-
     English-speaking enrollees and others with special 
     communications needs, including the provision of information 
     described in this subsection to such enrollees.
       ``(c) Form of Disclosure.--
       ``(1) Uniformity.--Information required to be disclosed 
     under this section shall be provided in accordance with 
     uniform, national reporting standards specified by the 
     Secretary, after consultation with applicable State 
     authorities, so that prospective enrollees may compare the 
     attributes of different issuers and coverage offered within 
     an area.
       ``(2) Information into handbook.--Nothing in this section 
     shall be construed as preventing an issuer from making the 
     information under subsection (b) available to enrollees 
     through an enrollee handbook or similar publication.
       ``(3) Updating.--The information on participating providers 
     described in subsection (a)(3)(C) shall be updated not less 
     frequently than monthly. Nothing in this section shall 
     prevent an issuer from changing or updating other information 
     made available under this section.

[[Page S1744]]

       ``(4) Construction.--Nothing in subsection (a)(6) shall be 
     construed as requiring disclosure of individual contracts or 
     financial arrangements between an issuer and any provider. 
     Nothing in this subsection shall be construed as preventing 
     the information described in subsection (a)(3)(C) from being 
     provided in a separate document.

     ``SEC. 2783. PROTECTION OF PATIENT CONFIDENTIALITY.

       ``A health insurance issuer that offers health insurance 
     coverage shall establish appropriate policies and procedures 
     to ensure that all applicable State and Federal laws to 
     protect the confidentiality of individually identifiable 
     medical information are followed.

                   ``Subpart 4--Grievance Procedures

     ``SEC. 2784. ESTABLISHMENT OF COMPLAINT AND APPEALS PROCESS.

       ``(a) Establishment of System.--A health insurance issuer 
     in connection with the provision of health insurance coverage 
     shall establish and maintain a system to provide for the 
     presentation and resolution of complaints and appeals brought 
     by enrollees, designees of enrollees, or by health care 
     providers acting on behalf of an enrollee and with the 
     enrollee's consent, regarding any aspect of the issuer's 
     health care services, including complaints regarding quality 
     of care, choice and accessibility of providers, network 
     adequacy, and compliance with the requirements of this part.
       ``(b) Components of System.--Such system shall include the 
     following components (which shall be consistent with 
     applicable requirements of section 2785):
       ``(1) Written notification to all enrollees and providers 
     of the telephone numbers and business addresses of the issuer 
     employees responsible for resolution of complaints and 
     appeals.
       ``(2) A system to record and document, over a period of at 
     least 3 years, all complaints and appeals made and their 
     status.
       ``(3) The availability of an enrollee services 
     representative to assist enrollees, as requested, with 
     complaint and appeal procedures.
       ``(4) Establishment of a specified deadline (not to exceed 
     30 days after the date of receipt of a complaint or appeal) 
     for the issuer to respond to complaints or appeals.
       ``(5) A process describing how complaints and appeals are 
     processed and resolved.
       ``(6) Procedures for follow-up action, including the 
     methods to inform the complainant or appellant of the 
     resolution of a complaint or appeal.
       ``(7) Notification to the continuous quality improvement 
     program under section 2777(a) of all complaints and appeals 
     relating to quality of care.
       ``(c) No Reprisal for Exercise of Rights.--A health 
     insurance issuer shall not take any action with respect to an 
     enrollee or a health care provider that is intended to 
     penalize the enrollee, a designee of the enrollee, or the 
     health care provider for discussing or exercising any rights 
     provided under this part (including the filing of a complaint 
     or appeal pursuant to this section).

     ``SEC. 2785. PROVISIONS RELATING TO APPEALS OF UTILIZATION 
                   REVIEW DETERMINATIONS AND SIMILAR 
                   DETERMINATIONS.

       ``(a) Right of Appeal.--
       ``(1) In general.--An enrollee in health insurance coverage 
     offered by a health insurance issuer, and any provider acting 
     on behalf of the enrollee with the enrollee's consent, may 
     appeal any appealable decision (as defined in paragraph (2)) 
     under the procedures described in this section and (to the 
     extent applicable) section 2784. Such enrollees and providers 
     shall be provided with a written explanation of the appeal 
     process upon the conclusion of each stage in the appeal 
     process and as provided in section 2782(a)(5)
       ``(2) Appealable decision defined.--In this section, the 
     term `appealable decision' means any of the following:
       ``(A) An adverse determination under a utilization review 
     program under section 2781.
       ``(B) Denial of access to specialty and other care under 
     section 2772.
       ``(C) Denial of continuation of care under section 2773.
       ``(D) Denial of a choice of provider under section 2774.
       ``(E) Denial of coverage of routine patient costs in 
     connection with an approval clinical trial under section 
     2775.
       ``(F) Denial of access to needed drugs under section 
     2776(3).
       ``(G) The imposition of a limitation that is prohibited 
     under section 2789.
       ``(H) Denial of payment for a benefit,
       ``(b) Informal Internal Appeal Process (Stage 1).--
       ``(1) In general.--Each issuer shall establish and maintain 
     an informal internal appeal process (an appeal under such 
     process in this section referred to as a `stage 1 appeal') 
     under which any enrollee or any provider acting on behalf of 
     an enrollee with the enrollee's consent, who is dissatisfied 
     with any appealable decision has the opportunity to discuss 
     and appeal that decision with the medical director of the 
     issuer or the health care professional who made the decision.
       ``(2) Timing.--All appeals under this paragraph shall be 
     concluded as soon as possible in accordance with the medical 
     exigencies of the cases, and in no event later than 72 hours 
     in the case of appeals from decisions regarding urgent care 
     and 5 days in the case of all other appeals.
       ``(3) Further review.--If the appeal is not resolved to the 
     satisfaction of the enrollee at this level by the deadline 
     under paragraph (2), the issuer shall provide the enrollee 
     and provider (if any) with a written explanation of the 
     decision and the right to proceed to a stage 2 appeal under 
     subsection (c).
       ``(c) Formal Internal Appeal Process (Stage 2).--
       ``(1) In general.--Each issuer shall establish and maintain 
     a formal internal appeal process (an appeal under such 
     process in this section referred to as a `stage 2 appeal') 
     under which any enrollee or provider acting on behalf of an 
     enrollee with the enrollee's consent, who is dissatisfied 
     with the results of a stage 1 appeal has the opportunity to 
     appeal the results before a panel that includes a physician 
     or other health care professional (or professionals) selected 
     by the issuer who have not been involved in the appealable 
     decision at issue in the appeal.
       ``(2) Availability of clinical peers.--The panel under 
     subparagraph (A) shall have available either clinical peers 
     (as defined in section 2781(c)(2)(B)) who have not been 
     involved in the appealable decision at issue in the appeal or 
     others who are mutually agreed upon by the parties. If 
     requested by the enrollee or enrollee's provider with the 
     enrollee's consent, such a peer shall participate in the 
     panel's review of the case.
       ``(3) Timely acknowledgment.--The issuer shall acknowledge 
     the enrollee or provider involved of the receipt of a stage 2 
     appeals upon receipt of the appeal.
       ``(4) Deadline.--
       ``(A) In general.--The issuer shall conclude each stage 2 
     appeal as soon as possible after the date of the receipt of 
     the appeal in accordance with medical exigencies of the case 
     involved, but in no event later than 72 hours in the case of 
     appeals from decisions regarding urgent care and (except as 
     provided in subparagraph (B)) 20 business days in the case of 
     all other appeals.
       ``(B) Extension.--An issuer may extend the deadline for an 
     appeal that does not relate to a decision regarding urgent or 
     emergency care up to an additional 20 business days where it 
     can demonstrate to the applicable State authority reasonable 
     cause for the delay beyond its control and where it provides, 
     within the original deadline under subparagraph (A), a 
     written progress report and explanation for the delay to such 
     authority and to the enrollee and provider involved.
       ``(5) Notice.--If an issuer denies a stage 2 appeal, the 
     issuer shall provide the enrollee and provider involved with 
     written notification of the denial and the reasons therefore, 
     together with a written notification of rights to any further 
     appeal
       ``(d) Direct Use of Further Appeals.--In the event that the 
     issuer fails to comply with any of the deadlines for 
     completion of appeals under this section or in the event that 
     the issuer for any reason expressly waives its rights to an 
     internal review of an appeal under subsection (b) or (c), the 
     enrollee and provider involved shall be relieved of any 
     obligation to complete the appeal stage involved and may, at 
     the enrollee's or provider's option, proceed directly to seek 
     further appeal through any applicable external appeals 
     process.
       ``(e) External Appeal Process in Case of Use of 
     Experimental Treatment to Save Life of Patient.--
       ``(1) In general.--In the case of an enrollee described in 
     paragraph (2), the health insurance issuer shall provide for 
     an external independent review process respecting the 
     issuer's decision not to cover the experimental therapy 
     (described in paragraph (2)(B)(ii)).
       ``(2) Enrollee described.--An enrollee described in this 
     paragraph is an enrollee who meets the following 
     requirements:
       ``(A) The enrollee has a terminal condition that is highly 
     likely to cause death within 2 years.
       ``(B) The enrollee's physician certifies that--
       ``(i) there is no standard, medically appropriate therapy 
     for successfully treating such terminal condition, but
       ``(ii) based on medical and scientific evidence, there is a 
     drug, device, procedure, or therapy (in this section referred 
     to as the `experimental therapy') that is more beneficial 
     than any available standard therapy.
       ``(C) The issuer has denied coverage of the experimental 
     therapy on the basis that it is experimental or 
     investigational.
       ``(3) Description of process and decision.--The process 
     under this subsection shall provide for a determination on a 
     timely basis, by a panel of independent, impartial physicians 
     appointed by a State authority or by an independent review 
     organization certified by the State, of the medical 
     appropriateness of the experimental therapy. The decision of 
     the panel shall be in writing and shall be accompanied by an 
     explanation of the basis for the decision. A decision of the 
     panel that is favorable to the enrollee may not be appealed 
     by the issuer except in the case of misrepresentation of a 
     material fact by the enrollee or a provider. A decision of 
     the panel that is not favorable to the enrollee may be 
     appealed by the enrollee.
       ``(4) Issuer covering process costs.--Direct costs of the 
     process under this subsection shall be borne by the issuer, 
     and not by the enrollee.
       ``(f) Other Independent or External Review.--
       ``(1) In general.--In the case of appealable decision 
     described in paragraph (2), the health insurance issuer shall 
     provide for--

[[Page S1745]]

       ``(A) an external review process for such decisions 
     consistent with the requirements of paragraph (3), or
       ``(B) an internal independent review process for such 
     decisions consistent with the requirements of paragraph (4).
       ``(2) Appealable decision described.--An appealable 
     decision described in this paragraph is decision that does 
     not involve a decision described in subsection (e)(1) but 
     involves--
       ``(A) a claim for benefits involving costs over a 
     significant threshold, or
       ``(B) assuring access to care for a serious condition.
       ``(3) External review process.--The requirements of this 
     subsection for an external review process are as follows:
       ``(A) The process is established under State law and 
     provides for review of decisions on stage 2 appeals by an 
     independent review organization certified by the State.
       ``(B) If the process provides that decisions in such 
     process are not binding on issuers, the process must provide 
     for public methods of disclosing frequency of noncompliance 
     with such decisions and for sanctioning issuers that 
     consistently refuse to take appropriate actions in response 
     to such decisions.
       ``(C) Results of all such reviews under the process are 
     disclosed to the public, along with at least annual 
     disclosure of information on issuer compliance.
       ``(D) All decisions under the process shall be in writing 
     and shall be accompanied by an explanation of the basis for 
     the decision.
       ``(E) Direct costs of the process shall be borne by the 
     issuer, and not by the enrollee.
       ``(F) The issuer shall provide for publication at least 
     annually of information on the numbers of appeals and 
     decisions considered under the process.
       ``(4) Internal, independent review process.--The 
     requirements of this subsection for an internal, independent 
     review process are as follows:
       ``(A)(i) The process must provide for the participation of 
     persons who are independent of the issuer in conducting 
     reviews and (ii) the Secretary must have found (through 
     reviews conducted no less often than biannually) the process 
     to be fair and impartial.
       ``(B) If the process provides that decisions in such 
     process are not binding on issuers, the process must provide 
     for public methods of disclosing frequency of noncompliance 
     with such decisions and for sanctioning issuers that 
     consistently refuse to take appropriate actions in response 
     to such decisions.
       ``(C) Results of all such reviews under the process are 
     disclosed to the public, along with at least annual 
     disclosure of information on issuer compliance.
       ``(D) All decisions under the process shall be in writing 
     and shall be accompanied by an explanation of the basis for 
     the decision.
       ``(E) Direct costs of the process shall be borne by the 
     issuer, and not by the enrollee.
       ``(F) The issuer shall provide for publication at least 
     annually of information on the numbers of appeals and 
     decisions considered under the process.

     The Secretary may delegate the authority under subparagraph 
     (A)(ii) to applicable State authorities.
       ``(5) Oversight.--The Secretary (and applicable State 
     authorities in the case of delegation of Secretarial 
     authority under paragraph (4)) shall conduct reviews not less 
     often than biannually of the fairness and impartiality 
     issuers who desired to use an internal, independent review 
     process described in paragraph (4) to satisfy the requirement 
     of paragraph (1).
       ``(6) Report.--The Secretary shall provide for periodic 
     reports on the effectiveness of this subsection in assuring 
     fair and impartial reviews of stage 2 appeals. Such reports 
     shall include information on the number of stage 2 appeals 
     (and decisions), for each of the types of review processes 
     described in paragraph (2), by health insurance coverage.
       ``(g) Construction.--Nothing in this part shall be 
     construed as removing any legal rights of enrollees under 
     State or Federal law, including the right to file judicial 
     actions to enforce rights.

     ``SEC. 2786. STATE HEALTH INSURANCE OMBUDSMEN.

       ``(a) In General.--Each State that obtains a grant under 
     subsection (c) shall establish and maintain a Health 
     Insurance Ombudsman. Such Ombudsman may be part of a 
     independent, nonprofit entity, and shall be responsible for 
     at least the following:
       ``(1) To assist consumers in the State in choosing among 
     health insurance coverage.
       ``(2) To provide counseling and assistance to enrollees 
     dissatisfied with their treatment by health insurance issuers 
     in regard to such coverage and in the filing of complaints 
     and appeals regarding determinations under such coverage.
       ``(3) To investigate instances of poor quality or improper 
     treatment of enrollees by health insurance issuers in regard 
     to such coverage and to bring such instances to the attention 
     of the applicable State authority.
       ``(b) Federal Role.--In the case of any State that does not 
     establish and maintain such an Ombudsman under subsection 
     (a), the Secretary shall provide for the establishment and 
     maintenance of such an official as will carry out with 
     respect to that State the functions otherwise provided under 
     subsection (a) by a Health Insurance Ombudsman.
       ``(c) Authorization of Appropriations.--There are 
     authorized to be appropriated to the Secretary such amounts 
     as may be necessary to provide for grants to States to 
     establish and operate Health Insurance Ombudsmen under 
     subsection (a) or for the operation of Ombudsmen under 
     subsection (b).

``Subpart 5--Protection of Providers Against Interference with Medical 
           Communications and Improper Incentive Arrangements

     ``SEC. 2787. PROHIBITION OF INTERFERENCE WITH CERTAIN MEDICAL 
                   COMMUNICATIONS.

       ``(a) Prohibition.--
       ``(1) General rule.--The provisions of any contract or 
     agreement, or the operation of any contract or agreement, 
     between a health insurance issuer in relation to health 
     insurance coverage (including any partnership, association, 
     or other organization that enters into or administers such a 
     contract or agreement) and a health care provider (or group 
     of health care providers) shall not prohibit or restrict the 
     provider from engaging in medical communications with the 
     provider's patient.
       ``(2) Nullification.--Any contract provision or agreement 
     described in paragraph (1) shall be null and void.
       ``(3) Prohibition on provisions.--A contract or agreement 
     described in paragraph (1) shall not include a provision that 
     violates paragraph (1).
       ``(b) Rules of Construction.--Nothing in this section shall 
     be construed--
       ``(1) to prohibit the enforcement, as part of a contract or 
     agreement to which a health care provider is a party, of any 
     mutually agreed upon terms and conditions, including terms 
     and conditions requiring a health care provider to 
     participate in, and cooperate with, all programs, policies, 
     and procedures developed or operated by a health insurance 
     issuer to assure, review, or improve the quality and 
     effective utilization of health care services (if such 
     utilization is according to guidelines or protocols that are 
     based on clinical or scientific evidence and the professional 
     judgment of the provider) but only if the guidelines or 
     protocols under such utilization do not prohibit or restrict 
     medical communications between providers and their patients; 
     or
       ``(2) to permit a health care provider to misrepresent the 
     scope of benefits covered under health insurance coverage or 
     to otherwise require a health insurance issuer to reimburse 
     providers for benefits not covered under the coverage.
       ``(c) Medical Communication Defined.--
       ``(1) In general.--In this section, the term `medical 
     communication' means any communication made by a health care 
     provider with a patient of the health care provider (or the 
     guardian or legal representative of such patient) with 
     respect to--
       ``(A) the patient's health status, medical care, or 
     treatment options;
       ``(B) any utilization review requirements that may affect 
     treatment options for the patient; or
       ``(C) any financial incentives that may affect the 
     treatment of the patient.
       ``(2) Misrepresentation.--The term `medical communication' 
     does not include a communication by a health care provider 
     with a patient of the health care provider (or the guardian 
     or legal representative of such patient) if the communication 
     involves a knowing or willful misrepresentation by such 
     provider.

     ``SEC. 2788. PROHIBITION AGAINST TRANSFER OF INDEMNIFICATION 
                   OR IMPROPER INCENTIVE ARRANGEMENTS.

       ``(a) Prohibition of Transfer of Indemnification.--No 
     contract or agreement between a health insurance issuer (or 
     any agent acting on behalf of such an issuer) and a health 
     care provider shall contain any clause purporting to transfer 
     to the health care provider by indemnification or otherwise 
     any liability relating to activities, actions, or omissions 
     of the issuer or agent (as opposed to the provider).
       ``(b) Prohibition of Improper Physician Incentive Plans.--
       ``(1) In general.--A health insurance issuer offering 
     health insurance coverage may not operate any physician 
     incentive plan unless the following requirements are met:
       ``(A) No specific payment is made directly or indirectly by 
     the issuer to a physician or physician group as an inducement 
     to reduce or limit medically necessary services provided with 
     respect to a specific individual enrolled with the issuer.
       ``(B) If the plan places a physician or physician group at 
     substantial financial risk (as determined by the Secretary) 
     for services not provided by the physician or physician 
     group, the issuer--
       ``(i) provides stop-loss protection for the physician or 
     group that is adequate and appropriate, based on standards 
     developed by the Secretary that take into account the number 
     of physicians placed at such substantial financial risk in 
     the group or under the plan and the number of individuals 
     enrolled with the issuer who receive services from the 
     physician or the physician group, and
       ``(ii) conducts periodic surveys of both individuals 
     enrolled and individuals previously enrolled with the issuer 
     to determine the degree of access of such individuals to 
     services provided by the issuer and satisfaction with the 
     quality of such services.
       ``(C) The issuer provides the applicable State authority 
     (or the Secretary if such authority is implementing this 
     section) with descriptive information regarding the plan, 
     sufficient to permit the authority (or the Secretary in such 
     case) to determine whether the plan is in compliance with the 
     requirements of this paragraph.

[[Page S1746]]

       ``(2) Physician incentive plan defined.--In this section, 
     the term `physician incentive plan' means any compensation 
     arrangement between a health insurance issuer and a physician 
     or physician group that may directly or indirectly have the 
     effect of reducing or limiting services provided with respect 
     to individuals enrolled with the issuer.
       ``(3) Application of medicare rules.--The Secretary shall 
     provide for the application of rules under this subsection 
     that are substantially the same as the rules established to 
     carry out section 1876(i)(8) of the Social Security Act.

``Subpart 6--Promoting Good Medical Practice and Protecting the Doctor-
                          Patient Relationship

     ``SEC. 2789. PROMOTING GOOD MEDICAL PRACTICE.

       ``(a) Prohibiting Arbitrary Limitations or Conditions for 
     the Provision of Services.--A health insurance issuer, in 
     connection with the provision of health insurance coverage, 
     may not impose limits on the manner in which particular 
     services are delivered if the services are medically 
     necessary and appropriate for the treatment or diagnosis of 
     an illness or injury to the extent that such treatment or 
     diagnosis is otherwise a covered benefit.
       ``(b) Medical Necessity and Appropriateness Defined.--In 
     subsection (a), the term `medically necessary and 
     appropriate' means, with respect to a service or benefit, a 
     service or benefit determined by the treating physician 
     participating in the health insurance coverage after 
     consultation with the enrollee, to be required, accordingly 
     to generally accepted principles of good medical practice, 
     for the diagnosis or direct care and treatment of an illness 
     or injury of the enrollee.
       ``(c) Construction.--Subsection (a) shall not be construed 
     as requiring coverage of particular services the coverage of 
     which is otherwise not covered under the terms of the 
     coverage.''.
       (b) Application to Group Health Insurance Coverage.--
       (1) Subpart 2 of part A of title XXVII of the Public Health 
     Service Act is amended by adding at the end the following new 
     section:

     ``SEC. 2706. PATIENT PROTECTION STANDARDS.

       ``(a) In General.--Each health insurance issuer shall 
     comply with patient protection requirements under part C with 
     respect to group health insurance coverage it offers.
       ``(b) Assuring Coordination.--The Secretary of Health and 
     Human Services and the Secretary of Labor shall ensure, 
     through the execution of an interagency memorandum of 
     understanding between such Secretaries, that--
       ``(1) regulations, rulings, and interpretations issued by 
     such Secretaries relating to the same matter over which such 
     Secretaries have responsibility under part C (and this 
     section) and section 713 of the Employee Retirement Income 
     Security Act of 1974 are administered so as to have the same 
     effect at all times; and
       ``(2) coordination of policies relating to enforcing the 
     same requirements through such Secretaries in order to have a 
     coordinated enforcement strategy that avoids duplication of 
     enforcement efforts and assigns priorities in 
     enforcement.''.''.
       (2) Section 2792 of such Act (42 U.S.C. 300gg-92) is 
     amended by inserting ``and section 2706(b)'' after ``of 
     1996''.
       (c) Application to Individual Health Insurance Coverage.--
     Part B of title XXVII of the Public Health Service Act is 
     amended by inserting after section 2751 the following new 
     section:

     ``SEC. 2752. PATIENT PROTECTION STANDARDS.

       ``Each health insurance issuer shall comply with patient 
     protection requirements under part C with respect to 
     individual health insurance coverage it offers.''.
       (d) Modification of Preemption Standards.--
       (1) Group health insurance coverage.--Section 2723 of such 
     Act (42 U.S.C. 300gg-23) is amended--
       (A) in subsection (a)(1), by striking ``subsection (b)'' 
     and inserting ``subsections (b) and (c)'';
       (B) by redesignating subsections (c) and (d) as subsections 
     (d) and (e), respectively; and
       (C) by inserting after subsection (b) the following new 
     subsection:
       ``(c) Special Rules in Case of Patient Protection 
     Requirements.--Subject to subsection (a)(2), the provisions 
     of section 2706 and part C (other than section 2771), and 
     part D insofar as it applies to section 2706 or part C, shall 
     not prevent a State from establishing requirements relating 
     to the subject matter of such provisions (other than section 
     2771) so long as such requirements are at least as stringent 
     on health insurance issuers as the requirements imposed under 
     such provisions. Subsection (a) shall apply to the provisions 
     of section 2771 (and section 2706 insofar as it relates to 
     such section).''.
       (2) Individual health insurance coverage.--Section 2762 of 
     such Act (42 U.S.C. 300gg-62), as added by section 
     605(b)(3)(B) of Public Law 104-204, is amended--
       (A) in subsection (a), by striking ``subsection (b), 
     nothing in this part'' and inserting ``subsections (b) and 
     (c)'', and
       (B) by adding at the end the following new subsection:
       ``(c) Special Rules in Case of Managed Care Requirements.--
     Subject to subsection (b), the provisions of section 2752 and 
     part C (other than section 2771), and part D insofar as it 
     applies to section 2752 or part C, shall not prevent a State 
     from establishing requirements relating to the subject matter 
     of such provisions so long as such requirements are at least 
     as stringent on health insurance issuers as the requirements 
     imposed under such section. Subsection (a) shall apply to the 
     provisions of section 2771 (and section 2752 insofar as it 
     relates to such section).''.
       (e) Additional Conforming Amendments.--
       (1) Section 2723(a)(1) of such Act (42 U.S.C. 300gg-
     23(a)(1)) is amended by striking ``part C'' and inserting 
     ``parts C and D''.
       (2) Section 2762(b)(1) of such Act (42 U.S.C. 300gg-
     62(b)(1)) is amended by striking ``part C'' and inserting 
     ``part D''.
       (f) Effective Dates.--(1)(A) Subject to subparagraph (B), 
     the amendments made by subsections (a), (b), (d)(1), and (e) 
     shall apply with respect to group health insurance coverage 
     for group health plan years beginning on or after July 1, 
     1998 (in this subsection referred to as the ``general 
     effective date'') and also shall apply to portions of plan 
     years occurring on and after January 1, 1999.
       (B) In the case of group health insurance coverage provided 
     pursuant to a group health plan maintained pursuant to 1 or 
     more collective bargaining agreements between employee 
     representatives and 1 or more employers ratified before the 
     date of enactment of this Act, the amendments made by 
     subsections (a), (b), (d)(1), and (e) shall not apply to plan 
     years beginning before the later of--
       (i) the date on which the last collective bargaining 
     agreements relating to the plan terminates (determined 
     without regard to any extension thereof agreed to after the 
     date of enactment of this Act), or
       (ii) the general effective date.

     For purposes of clause (i), any plan amendment made pursuant 
     to a collective bargaining agreement relating to the plan 
     which amends the plan solely to conform to any requirement 
     added by subsection (a) or (b) shall not be treated as a 
     termination of such collective bargaining agreement.
       (2) The amendments made by subsections (a), (c), (d)(2), 
     and (e) shall apply with respect to individual health 
     insurance coverage offered, sold, issued, renewed, in effect, 
     or operated in the individual market on or after the general 
     effective date.

     SEC. 3. AMENDMENTS TO THE EMPLOYEE RETIREMENT INCOME SECURITY 
                   ACT OF 1974.

       (a) In General.--Subpart B of part 7 of subtitle B of title 
     I of the Employee Retirement Income Security Act of 1974 is 
     amended by adding at the end the following new section:

     ``SEC. 713. PATIENT PROTECTION STANDARDS.

       ``(a) In General.--Subject to subsection (b), a group 
     health plan (and a health insurance issuer offering group 
     health insurance coverage in connection with such a plan) 
     shall comply with the requirements of part C (other than 
     section 2786) of title XXVII of the Public Health Service 
     Act.
       ``(b) Application.--In applying subsection (a) under this 
     part, any reference in such subpart C--
       ``(1) to a health insurance issuer and health insurance 
     coverage offered by such an issuer is deemed to include a 
     reference to a group health plan and coverage under such 
     plan, respectively;
       ``(2) to the Secretary is deemed a reference to the 
     Secretary of Labor;
       ``(3) to an applicable State authority is deemed a 
     reference to the Secretary of Labor; and
       ``(4) to an enrollee with respect to health insurance 
     coverage is deemed to include a reference to a participant or 
     beneficiary with respect to a group health plan.
       ``(c) Group Health Plan Ombudsman.--With respect to group 
     health plans that provide benefits other than through health 
     insurance coverage, the Secretary shall provide for the 
     establishment and maintenance of such a Federal Group Health 
     Plan Ombudsman that will carry out with respect to such plans 
     the functions described in section 2786(a) of the Public 
     Health Service Act with respect to health insurance issuers 
     that offer group health insurance coverage.
       ``(d) Assuring Coordination.--The Secretary of Health and 
     Human Services and the Secretary of Labor shall ensure, 
     through the execution of an interagency memorandum of 
     understanding between such Secretaries, that--
       ``(1) regulations, rulings, and interpretations issued by 
     such Secretaries relating to the same matter over which such 
     Secretaries have responsibility under such part C (and 
     section 2706 of the Public Health Service Act) and this 
     section are administered so as to have the same effect at all 
     times; and
       ``(2) coordination of policies relating to enforcing the 
     same requirements through such Secretaries in order to have a 
     coordinated enforcement strategy that avoids duplication of 
     enforcement efforts and assigns priorities in enforcement.''.
       (b) Modification of Preemption Standards.--Section 731 of 
     such Act (42 U.S.C. 1191) is amended--
       (1) in subsection (a)(1), by striking ``subsection (b)'' 
     and inserting ``subsections (b) and (c)'';
       (2) by redesignating subsections (c) and (d) as subsections 
     (d) and (e), respectively; and
       (3) by inserting after subsection (b) the following new 
     subsection:
       ``(c) Special Rules in Case of Patient Protection 
     Requirements.--Subject to subsection (a)(2), the provisions 
     of section 713 and part C of title XXVII of the Public Health 
     Service Act (other than section 2771

[[Page S1747]]

     of such Act), and subpart C insofar as it applies to section 
     713 or such part, shall not prevent a State from establishing 
     requirements relating to the subject matter of such 
     provisions (other than section 2771 of such Act) so long as 
     such requirements are at least as stringent on health 
     insurance issuers as the requirements imposed under such 
     provisions. Subsection (a) shall apply to the provisions of 
     section 2771 of such Act (and section 713 of this Act insofar 
     as it relates to such section).''.
       (c) Conforming Amendments.-- (1) Section 732(a) of such Act 
     (29 U.S.C. 1185(a)) is amended by striking ``section 711'' 
     and inserting ``sections 711 and 713''.
       (2) The table of contents in section 1 of such Act is 
     amended by inserting after the item relating to section 712 
     the following new item:

``Sec. 713. Patient protection standards.''.

       (3) Section 734 of such Act (29 U.S.C. 1187) is amended by 
     inserting ``and section 713(d)'' after ``of 1996''.
       (d) Effective Date.--(1) Subject to paragraph (2), the 
     amendments made by this section shall apply with respect to 
     group health plans for plan years beginning on or after July 
     1, 1998 (in this subsection referred to as the ``general 
     effective date'') and also shall apply to portions of plan 
     years occurring on and after January 1, 1999.
       (2) In the case of a group health plan maintained pursuant 
     to 1 or more collective bargaining agreements between 
     employee representatives and 1 or more employers ratified 
     before the date of enactment of this Act, the amendments made 
     by this section shall not apply to plan years beginning 
     before the later of--
       (A) the date on which the last collective bargaining 
     agreements relating to the plan terminates (determined 
     without regard to any extension thereof agreed to after the 
     date of enactment of this Act), or
       (B) the general effective date.

     For purposes of subparagraph (A), any plan amendment made 
     pursuant to a collective bargaining agreement relating to the 
     plan which amends the plan solely to conform to any 
     requirement added by subsection (a) shall not be treated as a 
     termination of such collective bargaining agreement.
                                 ______
                                 
      By Mr. ROBB:
  S. 374. A bill to amend title 38, United States Code, to extend 
eligibility for hospital care and medical services under chapter 17 of 
that title to veterans who have been awarded the Purple Heart, and for 
other purposes; to the Committe on Veterans' Affairs.


             THE COMBAT VETERANS MEDICAL EQUITY ACT OF 1997

 Mr. ROBB. Mr. President, I introduce the Combat Veterans 
Medical Equity Act of 1997, legislation which will serve to codify 
America's obligation to provide for the medical needs of our combat-
wounded veterans.
  Although we have long recognized the combat-wounded vet to be among 
our most deserving veterans, and although we have long distinguished 
the sacrifices of these veterans by awarding the Purple Heart Medal, 
remarkably, there is nothing in current law that stipulates an 
entitlement to health care based upon this physical sacrifice. In fact, 
I believe most Americans would be surprised to learn that a combat-
wounded Purple Heart recipient could be denied services for which a 
noncombat veteran, with a non-service-connected disability, would be 
eligible. This legislation would seek to remedy that situation.
  Specifically, this bill establishes eligibility for VA hospital care 
and medical services based upon the award of the Purple Heart Medal. It 
also gives Purple Heart recipients an enrollment priority on par with 
former prisoners of war and veterans with service-connected 
disabilities rated between 10 and 20 percent.
  Mr. President, as a Vietnam veteran who has been privileged to lead 
marines in combat, and as a member of the Senate Armed Services 
Committee, I have a keen appreciation for the sacrifices made by all of 
our men and women in uniform. At the same time, in the face of tighter 
budgets and greater competition for services, I believe strongly that 
Congress should ensure equity in the disbursing of medical services for 
our most deserving of veterans--the combat wounded. These veterans, who 
have shed their blood to keep our country safe and free, deserve no 
less.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 374

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

     SECTION 1. ELIGIBILITY FOR HOSPITAL CARE AND MEDICAL SERVICES 
                   BASED ON AWARD OF PURPLE HEART.

       (a) Eligibility.--Section 1710(a)(2) of title 38, United 
     States Code, is amended--
       (1) by striking out ``or'' at the end of subparagraph (F);
       (2) by redesignating subparagraph (G) as subparagraph (H); 
     and
       (3) by inserting after subparagraph (F) the following new 
     subparagraph (G):
       ``(G) who has been awarded the Purple Heart; or''.
       (b) Enrollment Priority.--Section 1705(a)(3) of such title 
     is amended--
       (1) by striking out ``and veterans'' and inserting in lieu 
     thereof ``veterans''; and
       (2) by inserting ``, and veterans whose eligibility for 
     care and services under this chapter is based solely on the 
     award of the Purple Heart'' before the period at the end.
       (c) Conforming Amendments.--(1) Section 1722(a) of such 
     title is amended by striking out ``section 1710(a)(2)(G)'' 
     and inserting in lieu thereof ``section 1710(a)(2)(H)''.
       (2) Section 5317(c)(3) of such title is amended by striking 
     out ``subsection (a)(2)(G),'' and inserting in lieu thereof 
     ``subsection (a)(2)(H),''
                                 ______
                                 
      By Mr. McCAIN (for himself, Mr. Dodd, Mr. Roberts, Mr. Ford, Mr. 
        Warner, Mr. Durbin, Mr. Gregg, Mr. Bingaman, Mr. Reed, Mr. 
        DeWine, Mr. Wellstone and Mr. Hagel):
  S. 375. A bill to amend title II of the Social Security Act to 
restore the link between the maximum amount of earnings by blind 
individuals permitted without demonstrating ability to engage in 
substantial gainful activity and the exempt amount permitted in 
determining excess earnings under the earnings test; to the Committee 
on Finance.


                 THE BLIND PERSONS EARNINGS EQUITY ACT

  Mr. McCAIN. Mr. President, I rise today with my good friend, Senator 
Dodd, to introduce an important piece of legislation which would have a 
tremendous impact on the lives of many blind people. Our bill restores 
the 20-year link between blind people and senior citizens in regard to 
the Social Security earnings limit which has helped many blind people 
become self-sufficient and productive.
  Unfortunately, by passing the Senior Citizens Freedom to Work Act 
last year, Congress broke the longstanding linkage in the treatment of 
blind people and seniors under Social Security, which resulted in 
allowing the earnings limit to be raised for seniors only and did not 
give blind people the same opportunity to increase their earnings 
without penalizing their Social Security benefits.
  My intent when I sponsored the Senior Citizens Freedom to Work Act 
was not to permanently break the link between blind people and the 
senior population. Last year, time constraints and fiscal 
considerations forced me to focus solely on raising the unfair and 
burdensome earnings limit for seniors. I am happy to say that the 
Senior Citizens Freedom to Work Act became law last year, and the 
earnings exemption for seniors is being raised in annual increments 
until it reaches $30,000 in the year 2002. This law is allowing 
millions of seniors to make their lives better and continue 
contributing to society as productive workers.
  We now should work in the spirit of fairness to ensure that this same 
opportunity is given to the blind population. We should provide blind 
people the opportunity to be productive and make it on their own. We 
should not continue policies which discourage these individuals from 
working and contributing to society.
  The bill I am introducing today, along with Senator Dodd, will 
restore the traditional linkage between seniors and blind people and 
allow them the same consideration as seniors in regard to the Social 
Security earnings test. This bill would reunite the earnings exemption 
amount for blind people with the exemption amount for senior citizens. 
If we do not reinstate this link, blind people will be restricted to 
earning $14,400 in the year 2002 in order to protect their Social 
Security benefits, compared to the $30,000 which seniors will be 
permitted to earn.
  There are very strong and convincing arguments in favor of 
reestablishing the link between these two groups and increasing the 
earnings limit for blind people.

  First, the earnings test treatment of our blind and senior 
populations has historically been identical. Since 1977, blind people 
and senior citizens have

[[Page S1748]]

shared the identical earnings exemption threshold under title II of the 
Social Security Act. Now, senior citizens will be given greater 
opportunity to increase their earnings without having their Social 
Security benefits being penalized; the blind, however, will not have 
the same opportunity.
  The Social Security earnings test imposes as great a work 
disincentive for blind people as it does for senior citizens. In fact, 
the earnings test probably provides a greater aggregate disincentive 
for blind individuals since many blind beneficiaries are of working 
age--18-65--and are capable of productive work.
  Blindness is often associated with adverse social and economic 
consequences. It is often tremendously difficult for blind individuals 
to find sustained employment or any employment at all, but they do want 
to work. They take great pride in being able to work and becoming 
productive members of society. By linking the blind with seniors in 
1977, Congress provided a great deal of hope and incentive for blind 
people in this country to enter the work force. Now, we are taking that 
hope away from them by not allowing them the same opportunity to 
increase their earnings as senior citizens.
  Blind people are likely to respond favorably to an increase in the 
earnings test by working more, which will increase their tax payments 
and their purchasing power and allow the blind to make a greater 
contribution to the general economy. In addition, encouraging the blind 
to work and allowing them to work more without being penalized would 
bring additional revenue into the Social Security trust funds. In 
short, restoring the link between blind people and senior citizens for 
treatment of Social Security benefits would help many blind people 
become self sufficient, productive members of society.
  I want to stress that it was always my intent that the link between 
blind and senior populations would only be temporarily broken. I urge 
my colleagues to join me in sponsoring this important measure to 
restore fair and equitable treatment for our blind citizens and to give 
the blind community increased financial independence. Our Nation would 
be better served if we restore the work incentive equality provision 
for the blind and provide them with the same freedom, opportunities and 
fairness as our Nation's seniors.
  I ask unanimous consent that numerous letters of support from various 
community groups and state organizations be included as a part of the 
Record. In addition, I would like to thank the many chapters of the 
National Federation of the Blind from throughout the country who have 
sent letters of support for this important piece of legislation 
including the Arizona Chapter, Idaho Western Chapter, Minnesota, 
Alabama, South Carolina, Shoreline Chapter of Connecticut, Iowa, Idaho, 
Minnesota's Metro Chapter, Virginia, Maryland, Connecticut, New York, 
Utah, Pennsylvania, California, Mississippi, Wisconsin, Idaho s Elmore 
County, and the Pend Oreille Chapter of Idaho.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                            National Industries for the Blind,

                                Alexandria, VA, February 21, 1997.
     Hon. John McCain,
     241 Russell Senate Office Building, U.S. Senate, Washington, 
         DC.
       Dear Senator McCain: On behalf of National Industries for 
     the Blind and our 119 associated industries in 38 states, 
     that employ over 5,300 people who are blind, I vigorously 
     endorse your proposed legislation to amend title II of the 
     Social Security Act.
       This legislation to re-institute the linkage, between 
     people who are blind and senior citizens, if passed, will 
     allow people who are blind to strive for full employment.
       Please let us know how NIB can be of further assistance to 
     you as you seek support of this important legislation.
           Sincerely,
     Judith D. Moore.
                                  ____

                                   Rehabilitation Advisory Council


                                                for the Blind,

                                  St. Paul, MN, February 20, 1997.
     Hon. John McCain,
     U.S. Senate,
     Washington, DC.
       Dear Senator McCain: On behalf of the Rehabilitation 
     Advisory Council for the Blind in Minnesota, I wish to 
     express our strong support for the restoration of the 
     earnings limits linkage under the Social Security Act between 
     the blind and age 65 retirees. It is my understanding that 
     you will be introducing a bill to achieve this restoration. 
     We commend you for your willingness to exercise leadership on 
     behalf of blind people who want to work and participate 
     actively and productively in society. We support your bill.
       The Social Security earnings limit for the blind is 
     presently set at $12,000 per year. As I am sure you are 
     aware, this is a powerful disincentive for blind people to 
     leave the Social Security rolls and become self-supporting 
     citizens. This barrier to self-support will become even more 
     insurmountable as the gap between the blind and senior 
     citizens widens. It is vital, therefore, that the blind 
     achieve parity with age 65 retirees insofar as earnings 
     limits under the Social Security Act are concerned. Using the 
     figures that apply to senior citizens, this means raising the 
     earnings limit for the blind to $30,000 per year by the year 
     2002.
       Thank you for recognizing the problem and taking forthright 
     action to deal with it.
           Yours sincerely,

                                                 Curtis Chong,

                              Chairperson, Rehabilitation Advisory
     Council for the Blind.
                                  ____



                               Louisiana Center for the Blind,

                                    Ruston, LA, February 21, 1997.
       Dear Senator McCain: Since 1985, the Louisiana Center for 
     the Blind has provided training and job placement services 
     for hundreds of blind adults throughout the country. One of 
     our primary goals is to help blind persons become employed so 
     that they can become productive, tax-paying citizens. Over 
     the past twelve years, we have observed that one of the main 
     disincentives for employment is the earnings limit under 
     Social Security Disability Insurance.
       As the director of the Louisiana Center for the Blind, I 
     want to express my strong support for your bill which would 
     restore the linkage between the blind and retirees for the 
     earnings limit under the Social Security Act. Since the 
     unemployment rate among the blind is a staggering 70%, I 
     firmly believe that your bill will decrease this statistic by 
     helping blind Americans enter the workforce.
       Thank you for your efforts on behalf of the nation's blind.
           Sincerely,
                                                    Joanne Wilson,
                                                         Director.
                                 ______
                                 
                                         National Council of State


                                 Agencies for the Blind, Inc.,

                                    Boston, MA, February 25, 1997.
     Hon. John McCain,
     U.S. Senate, Russell Office Building, Washington, DC.
       Dear Senator McCain: Please accept this letter of support 
     and applause from the National Council of State Agencies for 
     the Blind as a testimony to the reality that your effort to 
     reestablish the link for Blind SSDI recipients to the 
     earnings limits of persons who are elderly is both timely and 
     well grounded as a benefit to the national economy.
       There is no question in the view of this organization which 
     has a primary role of assisting blind persons to return to 
     work, that reestablishment of the linkage would positively 
     impact the decision of many persons to do so. Removing the 
     disincentive of lower earnings before a total cut-off of 
     benefits and reestablishing the linkage of a higher earnings 
     limit would afford those persons capable of rejoining the 
     national work force with the powerful personal reason to do 
     so through sustained economic security.
       Please be assured of the support and any assistance you may 
     require of this organization as you take on this progressive 
     and needed challenge to restore the earnings linkage. I may 
     be reached at the above address or by phoning (617)-727-5550 
     extension 4503 in the event you wish to communicate further.
           Sincerely,
                                              Charles H. Crawford,
                                                        President.
                                 ______
                                 


                                American Council of the Blind,

                                Washington, DC, February 25, 1997.
     Hon. John McCain,
     U.S. Senate, 241 Russell Senate Office Building, Washington, 
         DC.
       Dear Senator McCain: On behalf of the national membership 
     of the American Council of the Blind, I write to applaud your 
     efforts to restore the statutory linkage between the earnings 
     limit for seniors and blind SSDI beneficiaries. This bill 
     will go a long way to improving employment opportunities for 
     blind people, who struggle to enter and remain in the work 
     force. In the words of Jim Olsen, a member of the American 
     Council of the Blind of Minnesota, ``restoring the linkage 
     will enable blind people to continue to work, pay taxes, and 
     believe in the American spirit of the work ethic.''
       Our members are urging their Senators to support your bill 
     to restore linkage, and we are keeping them informed of your 
     efforts on their behalf. Please let me know how I can be of 
     assistance in this matter.
       Thank you.
           Very truly yours,
                                                 Julie H. Carroll,
     Director of Governmental Affairs.
                                  ____



                                                 Metairie, LA,

                                                February 22, 1997.
     Hon. John McCain,
     U.S. Senate,
     Washington, DC.
       Dear Senator McCain: I am writing to express our strong 
     support for your bill to restore the linkage of earnings 
     limits under the Social Security Act which apply to age 65 
     retirees and blind people of any age. The

[[Page S1749]]

     position of the National Federation of the Blind on this 
     matter is best expressed in a resolution (copy attached) 
     which was unanimously adopted at our 1996 National 
     Convention.
       Your leadership on behalf of beneficiaries who want to 
     contribute to society by working has earned our utmost 
     respect. The Social Security earnings limit, presently at 
     $12,000 annually, is the greatest barrier to self-support for 
     blind people. In fact, I would say that the single factor of 
     the earnings limit is more destructive to the self-support 
     efforts of blind people than any other social condition.
       By raising the earnings exemption threshold for blind 
     people to $30,000 beginning in 2002, your bill would 
     substantially remove any disincentive to work for blind 
     people. For that reason, we applaud your efforts and pledge 
     our full support.
       Although I think that restoring the linkage is all right 
     for the present, I believe that congress should totally 
     eliminate the earnings limit and place us in the same 
     classification as those 70 and over, this would not only 
     provide a significant work incentive, but would also 
     eliminate the cumbersome process of reporting both our 
     earnings and impairment related work related expenses now 
     required under the law. This has caused problems because of 
     the confusion among Social Security Administration employees 
     some of whom are unaware of the special provisions for blind 
     persons.
       I personally have had my earnings continuously started and 
     stopped since 1991 not because of anything I have done that 
     disqualifies me from receiving them, but due to the confusion 
     of S.S.A. personnel. I feel that classifying blind persons 
     the same as those 70 and over would ultimately provide an 
     even better work incentive than the restoration of the 
     linkage.
       Thank you for responding to the need.
           Very truly yours,
                                                     Harvey Heagy.
         Connecticut Community Advocates, Specialized Educational 
           Services,
                                 Westbrook, CT, February 21, 1997.
     Hon. John McCain,
     U.S. Senate,
     Washington, DC.
     Attention: Sonya Sotak
       Dear Senator McCain: As a member of the CT. C.A.S.E.S., I 
     have counseled many blind individuals who want to work. I 
     have compared their potential entry level salary to their 
     Social Security benefits. Too often, these work-bound blind 
     citizens realize that after taxes and work expenses, their 
     new job will not replace or equal their lost disability 
     benefits. Few blind people can afford to sacrifice income, 
     and they must remain idle in order to receive a guaranteed 
     monthly check. The chance to work, earn, pay taxes, and 
     become a contributing member of our society is a valid goal 
     for all Americans; but with the existing law under title II 
     of the Social Security Act, it is an unobtainable goal for 
     blind people.
       However, Senator McCain, your leadership and foresight in 
     introducing a bill to restore the linkage of earnings limits 
     under the Social Security Act for seniors and the blind will 
     enable both groups to work. In addition, they will be able to 
     join the work-force without fear. Your bill will restore 
     fairness, equity, and hope for the working age blind person. 
     The blind want to work and with your bill they will work. The 
     staff of CT. C.A.S.E.S. and clients would like to convey our 
     strong support and appreciation for your bill to restore the 
     linkage of earnings limit under the Social Security Act which 
     applies to retirees and blind people of any age.
       I know from personal experience, just how strict the 
     earnings limit is for blind people who attempt to work. My 
     earnings exceeded the exempt amount and the entire sum paid 
     to the primary beneficiary, myself, and my dependents was 
     abruptly withdrawn. After subtracting the travel expenses 
     etcetera, from the salary I obtained from being employed, it 
     was quite evident that my real earnings were much less than 
     my monthly disability benefits. At present many blind people 
     will lose financially by going to work but with the enactment 
     of your bill, restoring the linkage, they will not lose. 
     These blind people will become part of the working force. 
     They will pay taxes. They will become fully integrated and 
     truly achieve first class status as working Americans.
                                                  Paula A. Krauss,
     Director CT. C.A.S.E.S.
                                  ____



                             National Federation of the Blind,

                                 Baltimore, MD, February 12, 1997.
     Hon. John McCain,
     U.S. Senate,
     Washington, DC.
       Dear Senator McCain: I am writing to express our strong 
     support for your bill to restore the linkage of earnings 
     limits under the Social Security Act which apply to age 65 
     retirees and blind people of any age. The position of the 
     National Federation of the Blind on this matter is best 
     expressed in a resolution (copy attached) which was 
     unanimously adopted at our 1996 National Convention.
       Your leadership on behalf of beneficiaries who want to 
     contribute to society by working has earned our utmost 
     respect. The Social Security earnings limit, presently at 
     $12,000 annually, is the greatest barrier to self-support for 
     blind people. In fact, I would say that the single factor of 
     the earnings limit is more destructive to the self-support 
     efforts of blind people than any other social condition.
       By raising the earnings exemption threshold for blind 
     people to $30,000 beginning in 2002, your bill would 
     substantially remove any disincentive to work for blind 
     people. For that reason, we applaud your efforts and pledge 
     our full support.
       Thank you for responding to the need.
           Very truly yours,

                                                 James Gashel,

                                Director of Governmental Affairs, 
                                 National Federation of the Blind.

  Mr. DODD. Mr. President, I rise with my dear friend and colleague, 
Senator McCain, to introduce legislation of vital importance to 
Americans who happen to be blind. Its purpose is simply to restore the 
Social Security earnings limitation for the blind to the same level as 
that for America's senior citizens.
  Mr. President, the English poet John Milton once said that ``To be 
blind is not miserable; not to be able to bear blindness, that is 
miserable.''
  Over the past 20 years, blind Americans have made amazing progress in 
shouldering those difficult burdens. Today, millions of blind Americans 
have achieved more independent and rewarding lives for themselves.
  The legislation that we introduce today will ensure that this 
progress continues by restoring an important work incentive for close 
to 150,000 blind Americans. This bill would reestablish the identical 
earnings exemption threshold for blind and senior citizen beneficiaries 
under the Social Security Act, which had been the law from 1977 until 
just last year.
  Prior to 1977, blind people were overwhelmingly dependent on 
disability benefits. What's worse, many of them could not afford to 
work without risking the loss of the basic security that these benefits 
provided.
  However, in that year, we raised the earnings exemption for the blind 
to the same level as retirees--from $500 to $940 a month. That modest 
step encouraged millions of blind Americans to work by allowing them to 
keep more of what they earned.
  Unfortunately, last year, when the Congress raised the earnings limit 
for seniors, it failed to extend the same benefits to the blind.
  The impact of this unfortunate step has been significant. As the law 
now stands, a senior citizen may earn $13,500 in 1997 and $30,000 by 
the year 2002 without any reduction of benefits. A blind person, on the 
other hand, may only earn $12,000 today, and only $14,400 in 2002. 
While this provides terrific encouragement for seniors to work, it 
reenshrines into law the disincentive for blind people that existed 
before 1977.
  There are approximately 1.1 million people in the United States who 
are blind under the Social Security definition. Of those, 713,000 of 
the 1.1 million are 65 or older, and they are considered retirees, not 
blind people.
  But there are roughly 387,000 people who are blind, and under 
retirement age, who have been adversely affected by the severed link 
between retirees and the blind. Of the 332,000 blind people who are 20 
or older, more than 70 percent are unemployed. We must not make their 
efforts to find meaningful and rewarding work more difficult. Rather, 
we should encourage blind Americans in their noble endeavors. Our 
legislation would do just that by raising the earnings limit and 
linking it once again to the senior citizens exempt account.
  In closing, Mr. President, allow me to commend Senator McCain for his 
leadership here. He has once again demonstrated his commitment to 
ensuring that all Americans have a fair and equal opportunity to enjoy 
the fruits of their labors and the blessings of our great Nation. I 
urge our colleagues to join us in supporting this legislation.
                                 ______
                                 
      By Mr. LEAHY (for himself, Mr. Burns, Mrs. Murray, and Mr. 
        Wyden):
  S. 376. A bill to affirm the rights of Americans to use and sell 
encryption products, to establish privacy standards for voluntary key 
recovery encryption systems, and for other purposes; to the Committee 
on the Judiciary.


            THE ENCRYPTED COMMUNICATION PRIVACY ACT OF 1997

  Mr. LEAHY. Mr. President, in the 104th Congress, a bipartisan group 
of Senators came together to overhaul our country's outdated export 
rules and bring some sense to our country's encryption policy. We are 
back at it again in this Congress. I am pleased to

[[Page S1750]]

introduce with Senator Burns, and others, two encryption bills, the 
Encrypted Communications Privacy Act [ECPA] and Promotion of Commerce 
On-Line in the Digital Era [PRO-CODE] Act.
  This legislation bars government-mandated key recovery, or key escrow 
encryption, and ensures that all computer users are free to choose any 
encryption method to protect the privacy of their online communications 
and computer files. These bills also roll back current restrictions on 
the export of strong cryptography so that high-tech U.S. firms are free 
to compete in the global marketplace and meet the demands of 
customers--both foreign and domestic--for strong encryption.
  As an avid Internet user myself, I care deeply about protecting 
individual privacy and encouraging the development of the Internet as a 
secure and trusted communications medium. As more Americans every year 
use the Internet and other computer networks to obtain critical medical 
services, to conduct business, to be entertained and communicate with 
their friends, maintaining the privacy and confidentiality of our 
computer communications both here and abroad has only grown in 
importance.
  Strong encryption also has an important use as a crime prevention 
shield, to stop hackers, industrial spies and thieves from snooping 
into private computer files and stealing valuable proprietary 
information. We should be encouraging the use of strong encryption to 
prevent certain types of computer and online crime.
  We made progress in the last Congress on encryption. The attention we 
gave to this issue in classified briefings and public hearings helped 
the administration recognize the need for reform. In fact, in the 
waning days of the last Congress, the administration took steps to 
adopt one element proposed in these bills by transferring export 
control authority for certain encryption products from the State 
Department to the Commerce Department. The administration also loosened 
export controls on 56-bit key length encryption--at least for 2 years. 
Although the administration is moving in the right direction by 
loosening some export controls, its unilateral regulatory reforms are 
not enough.

  Even under the current regime, popular browser software, such as 
Microsoft's Internet Explorer and Netscape Navigator, may not be 
exported in the form generally available here, since both software 
packages use 128-bit encryption. Lotus Notes shareware, which uses 64-
bit encryption, cannot be exported in the same version sold 
domestically.
  We need to loosen export restrictions on encryption products so that 
American companies are able to export any generally available or mass 
market encryption products without obtaining Government approval. ECPA 
would allow our companies to do that.
  We are mindful of the national security and law enforcement concerns 
that have dictated the administration's policy choices on encryption. 
Both bills contain important exceptions to restrict encryption exports 
for military end-uses, or to terrorist designated or embargoed 
countries, such as Cuba or North Korea. This is not enough to satisfy 
our national security and law enforcement agencies, who fear that the 
widespread use of strong encryption will undercut their ability to 
eavesdrop on terrorists or other criminals, or decipher computer files 
containing material evidence of a crime.
  Administration officials have made clear that they seek nothing less 
than a world-wide key recovery encryption scheme in which the U.S. 
Government is able to obtain decryption assistance to decipher 
encrypted communications and stored electronic files. I have 
significant concerns about the administration conditioning the export 
of 56-bit key encryption on companies moving forward with key recovery 
encryption systems. In aggressively promoting a global key recovery 
scheme the administration is ignoring the conclusion of the National 
Research Council in its thorough CRISIS report issued last year. 
Specifically, the report warned that ``Aggressive government promotion 
of escrowed encryption is not appropriate at this time.''
  The administration is putting the proverbial cart-before-the-horse by 
promoting key recovery without having in place privacy safeguards 
defining how and under what circumstances law enforcement and others 
may get access to decryption keys. Many users have legitimate concerns 
about investing in and using key recovery products without clear 
answers on how the law enforcement here, let alone other countries, 
including those with bad human rights records or a history of economic 
espionage, will get access to their keys.
  ECPA provides those answers with clear guidelines on how and when law 
enforcement and foreign countries may obtain decryption assistance from 
key holders, who are voluntarily entrusted with decryption keys or have 
the capability to provide decryption assistance.
  It is time for Congress to take steps to put our national encryption 
policy on the right course. Both the PRO-CODE bill and the Encrypted 
Communications Privacy Act reflect a bipartisan effort to reform our 
nation's cryptography policy in a constructive and positive manner.
  I ask unanimous consent that the Encrypted Communications Privacy Act 
and a section-by-section summary be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 376

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Encrypted Communications 
     Privacy Act of 1997''.

     SEC. 2. PURPOSES.

       The purposes of this Act are--
       (1) to ensure that Americans have the maximum possible 
     choice in encryption methods to protect the security, 
     confidentiality, and privacy of their lawful wire and 
     electronic communications and stored electronic information; 
     and
       (2) to establish privacy standards for key holders who are 
     voluntarily entrusted with the means to decrypt such 
     communications and information, and procedures by which 
     investigative or law enforcement officers may obtain 
     assistance in decrypting such communications and information.

     SEC. 3. FINDINGS.

       Congress finds that--
       (1) the digitization of information and the explosion in 
     the growth of computing and electronic networking offers 
     tremendous potential benefits to the way Americans live, 
     work, and are entertained, but also raises new threats to the 
     privacy of American citizens and the competitiveness of 
     American businesses;
       (2) a secure, private, and trusted national and global 
     information infrastructure is essential to promote economic 
     growth, protect privacy, and meet the needs of American 
     citizens and businesses;
       (3) the rights of Americans to the privacy and security of 
     their communications and in the conducting of personal and 
     business affairs should be preserved and protected;
       (4) the authority and ability of investigative and law 
     enforcement officers to access and decipher, in a timely 
     manner and as provided by law, wire and electronic 
     communications and stored electronic information necessary to 
     provide for public safety and national security should also 
     be preserved;
       (5) individuals will not entrust their sensitive personal, 
     medical, financial, and other information to computers and 
     computer networks unless the security and privacy of that 
     information is assured;
       (6) business will not entrust their proprietary and 
     sensitive corporate information, including information about 
     products, processes, customers, finances, and employees, to 
     computers and computer networks unless the security and 
     privacy of that information is assured;
       (7) encryption technology can enhance the privacy, 
     security, confidentiality, integrity, and authenticity of 
     wire and electronic communications and stored electronic 
     information;
       (8) encryption techniques, technology, programs, and 
     products are widely available worldwide;
       (9) Americans should be free to use lawfully whatever 
     particular encryption techniques, technologies, programs, or 
     products developed in the marketplace they desire to use in 
     order to interact electronically worldwide in a secure, 
     private, and confidential manner;
       (10) American companies should be free--
       (A) to compete and to sell encryption technology, programs, 
     and products; and
       (B) to exchange encryption technology, programs, and 
     products through the use of the Internet, as the Internet is 
     rapidly emerging as the preferred method of distribution of 
     computer software and related information;
       (11) there is a need to develop a national encryption 
     policy that advances the development of the national and 
     global information infrastructure, and preserves the right to 
     privacy of Americans and the public safety and national 
     security of the United States;
       (12) there is a need to clarify the legal rights and 
     responsibilities of key holders who are voluntarily entrusted 
     with the

[[Page S1751]]

     means to decrypt wire and electronic communications and 
     stored electronic information;
       (13) Congress and the American people have recognized the 
     need to balance the right to privacy and the protection of 
     the public safety with national security;
       (14) the Constitution permits lawful electronic 
     surveillance by investigative or law enforcement officers and 
     the seizure of stored electronic information only upon 
     compliance with stringent standards and procedures; and
       (15) there is a need to clarify the standards and 
     procedures by which investigative or law enforcement officers 
     obtain assistance from key holders who--
       (A) are voluntarily entrusted with the means to decrypt 
     wire and electronic communications and stored electronic 
     information; or
       (B) have information that enables the decryption of such 
     communications and information.

     SEC. 4. DEFINITIONS.

       As used in this Act, the terms ``decryption key'', 
     ``encryption'', ``key holder'', and ``State'' have the same 
     meanings as in section 2801 of title 18, United States Code, 
     as added by section 6 of this Act.

     SEC. 5. FREEDOM TO USE ENCRYPTION.

       (a) Lawful Use of Encryption.--Except as provided in this 
     Act and the amendments made by this Act, it shall be lawful 
     for any person within any State, and by any United States 
     person in a foreign country, to use any encryption, 
     regardless of encryption algorithm selected, encryption key 
     length chosen, or implementation technique or medium used.
       (b) Prohibition on Mandatory Key Recovery or Key Escrow 
     Encryption.--Neither the Federal Government nor a State may 
     require, as a condition of a sale in interstate commerce, 
     that a decryption key be given to another person.
       (c) General Construction.--Nothing in this Act or the 
     amendments made by this Act shall be construed to--
       (1) require the use by any person of any form of 
     encryption;
       (2) limit or affect the ability of any person to use 
     encryption without a key recovery function; or
       (3) limit or affect the ability of any person who chooses 
     to use encryption with a key recovery function to select the 
     key holder, if any, of the person's choice.

     SEC. 6. ENCRYPTED WIRE OR ELECTRONIC COMMUNICATIONS AND 
                   STORED ELECTRONIC COMMUNICATIONS.

       (a) In General.--Part I of title 18, United States Code, is 
     amended by inserting after chapter 123 the following new 
     chapter:

 ``CHAPTER 125--ENCRYPTED WIRE OR ELECTRONIC COMMUNICATIONS AND STORED 
                         ELECTRONIC INFORMATION

``Sec.
``2801. Definitions.
``2802. Prohibited acts by key holders.
``2803. Reporting requirements.
``2804. Unlawful use of encryption to obstruct justice.
``2805. Freedom to sell encryption products.
``2806. Requirements for release of decryption key or provision of 
              encryption assistance to a foreign country.

     ``Sec. 2801. Definitions

       ``In this chapter--
       ``(1) the term `decryption key' means the variable 
     information used in or produced by a mathematical formula, 
     code, or algorithm, or any component thereof, used to decrypt 
     a wire communication or electronic communication or stored 
     electronic information that has been encrypted;
       ``(2) the term `decryption assistance' means assistance 
     which provides or facilitates access to the plain text of an 
     encrypted wire communication or electronic communication or 
     stored electronic information;
       ``(3) the term `encryption' means the scrambling of wire 
     communications or electronic communications or stored 
     electronic information using mathematical formulas or 
     algorithms in order to preserve the confidentiality, 
     integrity, or authenticity of such communications or 
     information and prevent unauthorized recipients from 
     accessing or altering such communications or information;
       ``(4) the term `key holder' means a person (including a 
     Federal agency) located within the United States who--
       ``(A) is voluntarily entrusted by another independent 
     person with the means to decrypt that person's wire 
     communications or electronic communications or stored 
     electronic information for the purpose of subsequent 
     decryption of such communications or information; or
       ``(B) has information that enables the decryption of such 
     communications or information for such purpose; and
       ``(5) the terms `person', `State', `wire communication', 
     `electronic communication', `investigative or law enforcement 
     officer', `judge of competent jurisdiction', and `electronic 
     storage' have the same meanings given such terms in section 
     2510 of this title.

     ``Sec. 2802. Prohibited acts by key holders

       ``(a) Unauthorized Release of Key.--Except as provided in 
     subsection (b), any key holder who releases a decryption key 
     or provides decryption assistance shall be subject to the 
     criminal penalties provided in subsection (e) and to civil 
     liability as provided in subsection (f).
       ``(b) Authorized Release of Key.--A key holder shall only 
     release a decryption key in the possession or control of the 
     key holder or provide decryption assistance with respect to 
     the key--
       ``(1) with the lawful consent of the person whose key is 
     possessed or controlled by the key holder;
       ``(2) as may be necessarily incident to the provision of 
     service relating to the possession or control of the key by 
     the key holder; or
       ``(3) upon compliance with subsection (c)--
       ``(A) to investigative or law enforcement officers 
     authorized to intercept wire communications or electronic 
     communications under chapter 119 of this title;
       ``(B) to a governmental entity authorized to require access 
     to stored wire and electronic communications and 
     transactional records under chapter 121 of this title; or
       ``(C) to a governmental entity authorized to seize or 
     compel the production of stored electronic information.
       ``(c) Requirements for Release of Decryption Key or 
     Provision of Decryption Assistance.--
       ``(1) Wire and electronic communications.--(A) A key holder 
     may release a decryption key or provide decryption assistance 
     to an investigative or law enforcement officer if--
       ``(i) the key holder is given--
       ``(I) a court order--

       ``(aa) signed by a judge of competent jurisdiction 
     directing such release or assistance; and
       ``(bb) issued upon a finding that the decryption key or 
     decryption assistance sought is necessary for the decryption 
     of a communication that the investigative or law enforcement 
     officer is authorized to intercept pursuant to chapter 119 of 
     this title; or

       ``(II) a certification in writing by a person specified in 
     section 2518(7) of this title, or the Attorney General, 
     stating that--

       ``(aa) no court order is required by law;
       ``(bb) the conditions set forth in section 2518(7) of this 
     title have been met; and
       ``(cc) the release or assistance is required;

       ``(ii) the order or certification under clause (i)--
       ``(I) specifies the decryption key or decryption assistance 
     being sought; and
       ``(II) identifies the termination date of the period for 
     which the release or assistance is authorized; and
       ``(iii) in compliance with the order or certification, the 
     key holder provides only the release or decryption assistance 
     necessary for the access specified in the order or 
     certification.
       ``(B) If an investigative or law enforcement officer 
     receives a decryption key or decryption assistance under this 
     paragraph for purposes of decrypting wire communications or 
     electronic communications, the judge issuing the order 
     authorizing the interception of such communications shall, as 
     part of the inventory required to be served pursuant to 
     subsection (7)(b) or (8)(d) of section 2518 of this title, 
     cause to be served on the persons named in the order, or the 
     application for the order, and on such other parties as the 
     judge may determine in the interests of justice, notice of 
     the receipt of the key or decryption assistance, as the case 
     may be, by the officer.
       ``(2) Stored wire and electronic communications and stored 
     electronic information.--(A) A key holder may release a 
     decryption key or provide decryption assistance to a 
     governmental entity requiring disclosure of stored wire and 
     electronic communications and transactional records under 
     chapter 121 of this title only if the key holder is directed 
     to release the key or give such assistance pursuant to a 
     court order issued upon a finding that the decryption key or 
     decryption assistance sought is necessary for the decryption 
     of communications or records the disclosure of which the 
     governmental entity is authorized to require under section 
     2703 of this title.
       ``(B) A key holder may release a decryption key or provide 
     decryption assistance under this subsection to a governmental 
     entity seizing or compelling production of stored electronic 
     information only if the key holder is directed to release the 
     key or give such assistance pursuant to a court order issued 
     upon a finding that the decryption key or decryption 
     assistance sought is necessary for the decryption of stored 
     electronic information--
       ``(i) that the governmental entity is authorized to seize; 
     or
       ``(ii) the production of which the governmental entity is 
     authorized to compel.
       ``(C) A court order directing the release of a decryption 
     key or the provision of decryption assistance under 
     subparagraph (A) or (B) shall specify the decryption key or 
     decryption assistance being sought. A key holder may provide 
     only such release or decryption assistance as is necessary 
     for access to the communications, records, or information 
     covered by the court order.
       ``(D) If a governmental entity receives a decryption key or 
     decryption assistance under this paragraph for purposes of 
     obtaining access to stored wire and electronic communications 
     or transactional records under section 2703 of this title, 
     the notice required with respect to such access under 
     subsection (b) of such section shall include notice of the 
     receipt of the key or assistance, as the case may be, by the 
     entity.
       ``(3) Use of key.--(A) An investigative or law enforcement 
     officer or governmental entity to which a decryption key is 
     released under this subsection may use the key only in the 
     manner and for the purpose and period expressly provided for 
     in the certification or

[[Page S1752]]

     court order authorizing such release and use. Such period may 
     not exceed the duration of the interception for which the key 
     was released or such other period as the court, if any, may 
     allow.
       ``(B) Not later than the end of the period authorized for 
     the release of a decryption key, the investigative or law 
     enforcement officer or governmental entity to which the key 
     is released shall destroy and not retain the key and provide 
     a certification that the key has been destroyed to the 
     issuing court, if any.
       ``(4) Nondisclosure of release.--No key holder, officer, 
     employee, or agent thereof may disclose the release of an 
     encryption key or the provision of decryption assistance 
     under subsection (b)(3), except as otherwise required by law 
     or legal process and then only after prior notification to 
     the Attorney General or to the principal prosecuting attorney 
     of a State or of a political subdivision of a State, as 
     appropriate.
       ``(d) Records or Other Information Held by Key Holders.--
       ``(1) In general.--A key holder may not disclose a record 
     or other information (not including the key or the contents 
     of communications) pertaining to any person, which record or 
     information is held by the key holder in connection with its 
     control or possession of a decryption key, except--
       ``(A) with the lawful consent of the person whose key is 
     possessed or controlled by the key holder; or
       ``(B) to an investigative or law enforcement officer 
     pursuant to a warrant, subpoena, court order, or other lawful 
     process authorized by Federal or State law.
       ``(2) Certain notice not required.--An investigative or law 
     enforcement officer receiving a record or information under 
     paragraph (1)(B) is not required to provide notice of such 
     receipt to the person to whom the record or information 
     pertains.
       ``(3) Liability for civil damages.--Any disclosure in 
     violation of this subsection shall render the person 
     committing the violation liable for the civil damages 
     provided for in subsection (f).
       ``(e) Criminal Penalties.--The punishment for an offense 
     under subsection (a) is--
       ``(1) if the offense is committed for a tortious, 
     malicious, or illegal purpose, or for purposes of direct or 
     indirect commercial advantage or private commercial gain--
       ``(A) a fine under this title or imprisonment for not more 
     than 1 year, or both, in the case of a first offense; or
       ``(B) a fine under this title or imprisonment for not more 
     than 2 years, or both, in the case of a second or subsequent 
     offense; and
       ``(2) in any other case where the offense is committed 
     recklessly or intentionally, a fine of not more than $5,000 
     or imprisonment for not more than 6 months, or both.
       ``(f) Civil Damages.--
       ``(1) In general.--Any person aggrieved by any act of a 
     person in violation of subsection (a) or (d) may in a civil 
     action recover from such person appropriate relief.
       ``(2) Relief.--In an action under this subsection, 
     appropriate relief includes--
       ``(A) such preliminary and other equitable or declaratory 
     relief as may be appropriate;
       ``(B) damages under paragraph (3) and punitive damages in 
     appropriate cases; and
       ``(C) a reasonable attorney's fee and other litigation 
     costs reasonably incurred.
       ``(3) Computation of damages.--The court may assess as 
     damages the greater of--
       ``(A) the sum of the actual damages suffered by the 
     plaintiff and any profits made by the violator as a result of 
     the violation; or
       ``(B) statutory damages in the amount of $5,000.
       ``(4) Limitation.--A civil action under this subsection 
     shall be commenced not later than 2 years after the date on 
     which the plaintiff first knew or should have known of the 
     violation.
       ``(g) Defense.--It shall be a complete defense against any 
     civil or criminal action brought under this chapter that the 
     defendant acted in good faith reliance upon a warrant, 
     subpoena, or court order or other statutory authorization.

     ``Sec. 2803. Reporting requirements

       ``(a) In General.--In reporting to the Administrative 
     Office of the United States Courts as required under section 
     2519(2) of this title, the Attorney General, an Assistant 
     Attorney General specially designated by the Attorney 
     General, the principal prosecuting attorney of a State, or 
     the principal prosecuting attorney of any political 
     subdivision of a State shall report on the number of orders 
     and extensions served on key holders under this chapter to 
     obtain access to decryption keys or decryption assistance and 
     the offenses for which the orders and extensions were 
     obtained.
       ``(b) Requirements.--The Director of the Administrative 
     Office of the United States Courts shall include in the 
     report transmitted to Congress under section 2519(3) of this 
     title the number of orders and extensions served on key 
     holders to obtain access to decryption keys or decryption 
     assistance and the offenses for which the orders and 
     extensions were obtained.

     ``Sec. 2804. Unlawful use of encryption to obstruct justice

       ``Whoever willfully endeavors by means of encryption to 
     obstruct, impede, or prevent the communication to an 
     investigative or law enforcement officer of information in 
     furtherance of a felony that may be prosecuted in a court of 
     the United States shall--
       ``(1) in the case of a first conviction, be sentenced to 
     imprisonment for not more than 5 years, fined under this 
     title, or both; or
       ``(2) in the case of a second or subsequent conviction, be 
     sentenced to imprisonment for not more than 10 years, fined 
     under this title, or both.

     ``Sec. 2805. Freedom to sell encryption products

       ``(a) In General.--It shall be lawful for any person within 
     any State to sell in interstate commerce any encryption, 
     regardless of encryption algorithm selected, encryption key 
     length chosen, or implementation technique or medium used.
       ``(b) Control of Exports by Secretary of Commerce.--
       ``(1) General rule.--Notwithstanding any other law and 
     subject to paragraphs (2), (3), and (4), the Secretary of 
     Commerce shall have exclusive authority to control exports of 
     all computer hardware, computer software, and technology for 
     information security (including encryption), except computer 
     hardware, software, and technology that is specifically 
     designed or modified for military use, including command, 
     control, and intelligence applications.
       ``(2) Items subject to license exception.--Except as 
     otherwise provided under the Trading With The Enemy Act (50 
     U.S.C. App. 1 et seq.) or the International Emergency 
     Economic Powers Act (50 U.S.C. 1701 et seq.) (but only to the 
     extent that the authority of the International Emergency 
     Economic Powers Act is not exercised to extend controls 
     imposed under the Export Administration Act of 1979), a 
     license exception shall be made available for the export or 
     reexport of--
       ``(A) any computer software, including computer software 
     with encryption capabilities, that is--
       ``(i) generally available, as is, and designed for 
     installation by the user or purchaser; or
       ``(ii) in the public domain (including computer software 
     available through the Internet or another interactive 
     computer service) or publicly available because the computer 
     software is generally accessible to the interested public in 
     any form;
       ``(B) any computing device or computer hardware that 
     otherwise would be restricted solely on the basis that it 
     incorporates or employs in any form computer software 
     (including computer software with encryption capabilities) 
     that is described in subparagraph (A);
       ``(C) any computer software or computer hardware that is 
     otherwise restricted solely on the basis that it incorporates 
     or employs in any form interface mechanisms for interaction 
     with other hardware and software, including encryption 
     hardware and software; or
       ``(D) any encryption technology related or ancillary to a 
     device, software, or hardware described in subparagraph (A), 
     (B), or (C).
       ``(3) Computer software, computer hardware, and technology 
     with encryption capabilities.--(A) Except as provided in 
     subparagraph (B), the Secretary of Commerce shall authorize 
     the export or reexport of computer software, computer 
     hardware, and technology with encryption capabilities under a 
     license exception if--
       ``(i) a product offering comparable security is 
     commercially available from a foreign supplier without 
     effective restrictions;
       ``(ii) a product offering comparable security is generally 
     available in a foreign country; or
       ``(iii) the sole basis for otherwise withholding the 
     license exception is the employment in the software, 
     hardware, or technology of encryption from a foreign source.
       ``(B) The Secretary of Commerce shall prohibit the export 
     or reexport of computer software, computer hardware, and 
     technology described in subparagraph (A) to a foreign country 
     if the Secretary determines that there is substantial 
     evidence that such software, hardware, or technology will 
     be--
       ``(i) diverted to a military end-use or an end-use 
     supporting international terrorism;
       ``(ii) modified for military or terrorist end-use; or
       ``(iii) reexported without requisite United States 
     authorization.
       ``(4) Definitions.--As used in this subsection--
       ``(A) the term `as is' means, in the case of computer 
     software (including computer software with encryption 
     capabilities), a computer software program that is not 
     designed, developed, or tailored by the computer software 
     company for specific purchasers, except that such purchasers 
     may supply certain installation parameters needed by the 
     computer software program to function properly with the 
     purchaser's system and may customize the computer software 
     program by choosing among options contained in the computer 
     software program;
       ``(B) the term `computing device' means a device which 
     incorporates one or more microprocessor-based central 
     processing units that can accept, store, process, or provide 
     output of data;
       ``(C) the term `computer hardware', when used in 
     conjunction with information security, includes computer 
     systems, equipment, application-specific assemblies, modules, 
     and integrated circuits;
       ``(D) the term `generally available' means, in the case of 
     computer software (including computer software with 
     encryption capabilities), computer software that is widely 
     offered for sale, license, or transfer including over-the-
     counter retail sales, mail order

[[Page S1753]]

     transactions, telephone order transactions, electronic 
     distribution, and sale on approval;
       ``(E) the term `interactive computer service' has the 
     meaning provided that term in section 230(e)(2) of the 
     Communications Act of 1934 (47 U.S.C. 230(e)(2));
       ``(F) the term `Internet' has the meaning provided that 
     term in section 230(e)(1) of the Communications Act of 1934 
     (47 U.S.C. 230(e)(1));
       ``(G) the term `is designed for installation by the 
     purchaser' means, in the case of computer software (including 
     computer software with encryption capabilities)--
       ``(i) that the computer software company intends for the 
     purchaser (including any licensee or transferee), who may not 
     be the actual program user, to install the computer software 
     program on a computing device and has supplied the necessary 
     instructions to do so, except that the company may also 
     provide telephone help-line services for software 
     installation, electronic transmission, or basic operations; 
     and
       ``(ii) that the computer software program is designed for 
     installation by the purchaser without further substantial 
     support by the supplier;
       ``(H) the term `license exception' means a general 
     authorization applicable to a type of export that does not 
     require an exporter to, as a condition of exporting--
       ``(i) submit a written application to the Secretary of 
     Commerce; or
       ``(ii) receive prior written authorization by the Secretary 
     of Commerce; and
       ``(I) the term `technology' means specific information 
     necessary for the development, production, or use of a 
     product.

     ``Sec. 2806. Requirements for release of decryption key or 
       provision of decryption assistance to a foreign country

       ``(a) In General.--Except as provided in subsection (b), no 
     investigative or law enforcement officer or key holder may 
     release a decryption key or provide decryption assistance to 
     a foreign country.
       ``(b) Conditions for Cooperation With Foreign Country.--
       ``(1) In general.--In any case in which the United States 
     has entered into a treaty or convention with a foreign 
     country to provide mutual assistance with respect to 
     decryption, the Attorney General (or the designee of the 
     Attorney General) may, upon an official request to the United 
     States from the foreign country, apply for an order described 
     in paragraph (2) from the district court in which a key 
     holder resides for--
       ``(A) assistance in obtaining the release of a decryption 
     key from the key holder; or
       ``(B) obtaining decryption assistance from the key holder.
       ``(2) Contents of order.--An order described in this 
     paragraph is an order that directs the key holder involved 
     to--
       ``(A) release a decryption key to the Attorney General (or 
     the designee of the Attorney General) for furnishing to the 
     foreign country; or
       ``(B) provide decryption assistance to the Attorney General 
     (or the designee of the Attorney General) for furnishing to 
     the foreign country.
       ``(3) Requirements for order.--A judge of a court described 
     in paragraph (1) may issue an order described in paragraph 
     (2) if the judge finds, on the basis on an application made 
     by the Attorney General under this subsection, that--
       ``(A) the decryption key or decryption assistance sought is 
     necessary for the decryption of a communication or 
     information that the foreign country is authorized to 
     intercept or seize pursuant to the law of the foreign 
     country;
       ``(B) the law of the foreign county provides for adequate 
     protection against arbitrary interference with respect to 
     privacy rights; and
       ``(C) the decryption key or decryption assistance is being 
     sought in connection with a criminal investigation for 
     conduct that would constitute a violation of a criminal law 
     of the United States if committed within the jurisdiction of 
     the United States.
       ``(c) Definition.--As used in this section, the term 
     `official request' has the meaning given that term in section 
     3506(c) of this title.''.
       (b) Clerical Amendment.--The chapter analysis for part I of 
     title 18, United States Code, is amended by inserting after 
     the item relating to chapter 123 the following new item:

``125. Encrypted wire or electronic communications and stored 
    electronic information..................................2801''.....

     SEC. 7. INTELLIGENCE ACTIVITIES.

       (a) Construction.--Nothing in this Act or the amendments 
     made by this Act constitutes authority for the conduct of any 
     intelligence activity.
       (b) Certain Conduct.--Nothing in this Act or the amendments 
     made by this Act shall affect the conduct, by officers or 
     employees of the United States Government in accordance with 
     other applicable Federal law, under procedures approved by 
     the Attorney General, of activities intended to--
       (1) intercept encrypted or other official communications of 
     United States executive branch entities or United States 
     Government contractors for communications security purposes;
       (2) intercept radio communications transmitted between or 
     among foreign powers or agents of a foreign power as defined 
     by the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.); or
       (3) access an electronic communication system used 
     exclusively by a foreign power or agent of a foreign power as 
     so defined.
                                  ____


         Encrypted Communications Privacy Act of 1997--Summary

       Sec. 1. Short Title. The Act may be cited as the 
     ``Encrypted Communications Privacy Act of 1997.''
       Sec. 2. Purpose. The Act would ensure that Americans have 
     the maximum possible choice in encryption methods to protect 
     the security, confidentiality and privacy of their lawful 
     wire and electronic communications and stored electronic 
     information. Americans are free to choose an encryption 
     method with a key recovery feature, in which another person, 
     called a ``key holder,'' is voluntarily entrusted with a 
     decryption key or with the means to decrypt, or has 
     information that would enable the decryption of, encrypted 
     communications or information. The Act would establish 
     privacy standards for the key holder, and procedures for law 
     enforcement officers and foreign countries to follow to 
     obtain assistance from the key holder in decrypting encrypted 
     communications and information.
       Sec. 3. Findings. The Act enumerates fifteen congressional 
     findings, including that a secure, private and trusted 
     national and global information infrastructure is essential 
     to promote citizens' privacy and meet the needs of both 
     American citizens and businesses, that encryption technology 
     widely available worldwide can help meet those needs, that 
     Americans should be free to use, and American businesses free 
     to compete and sell, encryption technology, programs and 
     products, and that there is a need to develop a national 
     encryption policy to advance the global information 
     infrastructure and preserve Americans' right to privacy and 
     the Nation's public safety and national security.
       Sec. 4. Definitions. The terms ``decryption key'', 
     ``encryption'', ``key holder'', and ``State'' as used in the 
     Act are defined in section 6 of the Act.
       Sec. 5. Freedom to Use Encryption.
       (a) Lawful Use of Encryption. The Act legislatively 
     confirms current practice in the United States that any 
     person in this country may lawfully use any encryption 
     method, regardless of encryption algorithm, key length or 
     implementation selected.
       The Act further makes clear that it is lawful under U.S. 
     law for by any United States persons in a foreign country to 
     use any encryption method. This provision is consistent with, 
     though broader than, the Commerce Department's license 
     exceptions published in the Federal Register on December 30, 
     1996, for temporary encryption exports that effectively 
     replace the Department of State's personal use exemption. 
     This personal use exemption that permits the export of 
     cryptographic products by U.S. citizens and permanent 
     residents who have the need to temporarily export the 
     cryptographic products when leaving the U.S. for brief 
     periods of time. For example, under this exemption, U.S. 
     citizens traveling abroad are able to take their laptop 
     computers containing copies of Lotus Notes software, many 
     versions of which contain an encryption program otherwise 
     not exportable.
       (b) Prohibition on Mandatory Key Recovery or Key Escrow 
     Encryption. The Act expressly bars the government from 
     mandating that encryption technology or products be sold in 
     interstate commerce with a key recovery feature.
       (c) General Construction. Nothing in the Act is to be 
     construed to require the use of encryption, the use of 
     encryption with or without a key recovery feature, or the use 
     of a key holder if a person chooses to use encryption with a 
     key recovery feature.
       Sec. 6. Encrypted Wire or Electronic Communications and 
     Stored Electronic Information. This section of the act adds a 
     new chapter 125, entitled ``Encrypted Wire or Electronic 
     Communications and Stored Electronic Information,'' to title 
     18 of the United States Code to establish privacy standards 
     for key holders and to set forth procedures that law 
     enforcement officers, governmental entities and foreign 
     countries must follow to obtain release of decryption keys or 
     decryption assistance from key holders.
       (a) In General. New chapter 125 has six sections.
       Sec. 2801.  Definitions. Generally, the terms used in the 
     new chapter have the same meanings as in the federal wiretap 
     statute, 18 U.S.C. 2510. Definitions are provided for 
     ``decryption key'', ``decryption assistance'', ``encryption'' 
     and ``key holder''. A ``key holder'' is a person located 
     within the United States who is voluntarily entrusted by 
     another independent person with the means to decrypt, or who 
     has information that would enable the decryption of, that 
     person's encrypted wire or electronic communications or 
     stored electronic information. A key holder may, but is not 
     required to be, a Federal agency.
       This chapter applies to wire or electronic communications 
     and communications in electronic storage, as defined in 18 
     U.S.C. 2510, and to stored electronic data. Thus, this 
     chapter describes procedures for law enforcement to obtain 
     assistance in decrypting encrypted electronic mail messages, 
     encrypted telephone conversations, encrypted facsimile 
     transmissions, encrypted computer transmissions and encrypted 
     file transfers over the Internet that are lawfully 
     intercepted pursuant to a wiretap order, under 18 U.S.C. 
     2518, or obtained pursuant to lawful process, under 18 U.S.C. 
     2703, and encrypted information stored on computers that is 
     seized pursuant to a search warrant or other lawful process.

[[Page S1754]]

       Sec. 2802.  Prohibited acts by key holders
       (a) Unauthorized Release of Key.--Key holders will be 
     subject to both criminal and civil liability for the 
     unauthorized release of decryption keys or providing 
     unauthorized decryption assistance.
       (b) Authorized Release of Key.--Key holders are authorized 
     to release decryption keys or provide decryption assistance 
     (1) with the consent of the key owner, (2) as may be 
     necessarily incident to the provision of the key holder's 
     service in possessing or controlling the key, or (3) to 
     investigative or law enforcement officers authorized to 
     conduct wiretaps and intercept wire or electronic 
     communications, governmental entities authorized to access 
     stored wire or electronic communications and transactional 
     records, and governmental entities authorized to seize or 
     compel production of stored electronic records, and upon 
     compliance with the procedures set forth in subsection (c).
       (c) Requirements for Release of Decryption Key or Provision 
     of Decryption Assistance.--Generally decryption keys may be 
     released and decryption assistance provided only pursuant to 
     a court order issued upon a finding that the key or 
     assistance is necessary to decrypt communications or stored 
     data lawfully intercepted or seized. The standard for release 
     of the key or provision of decryption assistance is tied 
     directly to the problem at hand: the need to decrypt a 
     message or information that the government is otherwise 
     authorized to intercept or obtain. This will ensure that key 
     holders need respond to only one type of compulsory process--
     a court order. Moreover, this Act will set a single standard 
     for law enforcement, removing any extra burden on law 
     enforcement to demonstrate, for example, probable cause for 
     two separate orders (i.e., for the encrypted communications 
     or information and for decryption assistance) and possibly 
     before two different judges (i.e., the judge issuing the 
     order for the encrypted communications or information and the 
     judge issuing the order to the key holder).
       (1) Wire and electronic communications.--To obtain access 
     to a decryption key or decryption assistance from a key 
     holder, an investigative or law enforcement officer must 
     present to the key holder a court order (or a certification 
     issued under the emergency situation procedures in 18 U.S.C. 
     2518(7)) issued upon a finding that the decryption key or 
     decryption assistance is necessary for the decryption of a 
     communication that the officer is authorized to intercept. 
     The order or certification shall specify the key or 
     assistance being sought and identify the termination date of 
     the period for which the release or assistance is authorized. 
     Released keys or other decryption assistance may only be 
     used in the manner and for the purpose and duration 
     expressly provided by the court order.
       The Act reinforces the principle of minimization. A key 
     holder may only provide the minimal key release or decryption 
     assistance needed to access the particular communications or 
     information specified by court order. Under some key recovery 
     schemes, release of a key holder's private key--rather than 
     an individual session key--might provide the ability to 
     decrypt every communication or stored file ever encrypted by 
     a particular key owner, or by every user in an entire 
     corporation, or by every user who was ever a customer of the 
     key holder. The Act protects against such over broad releases 
     of keys by requiring the court issuing the order to find the 
     keys or decryption assistance being sought are necessary.
       A key holder who fails to comply with the court order to 
     provide a decryption key or decryption assistance may be 
     penalized under current contempt or obstruction laws.
       (2) Stored wire and electronic communications and stored 
     electronic information.--
       (A) A key holder is authorized to release a decryption key 
     or provide decryption assistance to a governmental entity 
     when directed to do so by a court order issued upon a finding 
     that the key or assistance sought is necessary for the 
     decryption of stored wire and electronic communications and 
     transactional records, which a governmental entity is 
     authorized to obtain under 18 U.S.C. Sec. 2703. The notice 
     required to be given to subscribers or customers, under 18 
     U.S.C. Sec. 2703(b), shall include notice of the receipt of 
     the key or assistance, as the case may be, by the 
     governmental entity.
       (B) A key holder is authorized to release a decryption key 
     or provide decryption assistance to a governmental entity 
     when directed to do so by a court order issued upon a finding 
     that the key or assistance sought is necessary for the 
     decryption of stored electronic information, which a 
     governmental entity is authorized to seize or for which the 
     governmental entity is authorized to compel production.
       (C) A court order issued under either (A) or (B) must 
     specify the decryption key or decryption assistance being 
     sought, and the key holder may provide only such release or 
     assistance as is necessary for access to the communications, 
     records or information covered by the court order.
       (3) Use of key.--An investigative or law enforcement 
     officer or governmental entity to which a decryption key has 
     been released may use the key only in the manner, for the 
     purpose and for the period expressly provided for in the 
     court order or certification authorizing the release and 
     use. At the end of the period for authorized release of 
     the decryption key, the investigative or law enforcement 
     officer or governmental entity must destroy and not retain 
     the key and certify this has been done to the issuing 
     court, if any.
       (4) Nondisclosure of Release.--A key holder may not 
     disclose the release of a decryption key or provision of 
     decryption assistance unless otherwise ordered to do so by 
     law or legal process and then only after prior notification 
     to the Attorney General or principal prosecuting attorney of 
     a State or of a political subdivision of a State, as 
     appropriate.
       (d) Records or Other Information Held by Key Holders.--Key 
     holders are prohibited from disclosing records or other 
     information (not including decryption keys or the contents of 
     communications) pertaining to key owners, except with the 
     owner's consent or to an investigative or law enforcement 
     officer, pursuant to a subpoena, court order or other lawful 
     process. Investigative or law enforcement officers receiving 
     such information are not required to notify the person to 
     whom such information pertains. Key holders who violate this 
     section are liable for civil damages as provided in 
     subsection (f).
       (e) Criminal Penalties.--Key holders who violate this 
     section for a tortuous, malicious or an illegal purpose, or 
     for direct or indirect commercial advantage or private 
     commercial gain, will be subject to a fine and up to 1 year 
     imprisonment for a first offense, and fine and up to 2 years' 
     imprisonment for a second offense. Other reckless and 
     intentional violations would subject the key holder to a fine 
     of not more than $5,000 and not more than 6 months' 
     imprisonment.
       (f) Civil Damages.--Persons aggrieved by key holder 
     violations may sue for injunctive relief, and actual damages 
     or statutory damages of $5,000, whichever is greater. A civil 
     action must be commenced not later than 2 years after the 
     date on which the plaintiff first knew or should have known 
     of the offense.
       (g) Defense.--A complete defense against any civil or 
     criminal action is provided if the defendant acted in good 
     faith reliance upon a court order, warrant, grand jury or 
     trial subpoena or other statutory authorization.
       Sec. 2803.  Reporting requirements. The Attorney General is 
     required to include in his or her report to the 
     Administrative Office of the U.S. Courts, under 18 U.S.C. 
     Sec. 2519(2), the number of orders and extensions served on 
     key holders to obtain access to decryption keys or decryption 
     assistance. The Director of the Administrative Office of the 
     U.S. Courts is required to include this information, and the 
     offenses for which the orders were obtained, in the report to 
     Congress under 18 U.S.C. Sec. 2519(3).
       Sec. 2804.  Unlawful use of encryption to obstruct justice
       Persons who willfully use encryption in an effort and for 
     the purpose of obstructing, impeding, or prevent the 
     communication of information in furtherance of a federal 
     felony crime to a law enforcement officer, would be subject 
     to a fine and up to 5 years' imprisonment for a first 
     offense, and up to 10 years' imprisonment for a second or 
     subsequent offense.
       Sec. 2805.  Freedom to sell encryption products
       (a) In General.--The Act legislatively confirms that it is 
     lawful to sell any encryption, regardless of encryption 
     algorithm, key length or implementation used, domestically in 
     the United States or its territories.
       (b) Control of Exports by Secretary of Commerce.--
     Notwithstanding any other law, the Act vests the Secretary of 
     Commerce with control of exports of hardware, software and 
     technology for information security, including encryption for 
     both communications and other stored data, except when the 
     hardware, software or technology is specifically designed or 
     modified for military use. Under the Act, the Secretary must 
     grant export license exceptions to computer software, 
     computer hardware and technology with encryption capabilities 
     if the Secretary determines that a product with comparable 
     security is commercially available from a foreign supplier 
     without effective restrictions, is generally available in a 
     foreign country, or if the product employs encryption from a 
     foreign source that otherwise would be the sole basis for 
     restriction.
       The Secretary of Commerce would be required to grant a 
     license exception for the export of computer software with 
     encryption capabilities that is generally available, 
     including mass market products (i.e., those generally 
     available, sold ``as is'', and designed for installation by 
     the purchaser) or in the public domain and generally 
     accessible. For example, no license would be required for 
     encryption products commercially available without 
     restriction and sold ``as is'', such as Netscape's 
     commercially available World Wide Web Browser with strong 
     encryption, which can not be exported. Similarly, a license 
     exception would be granted to export encryption software 
     placed in the public domain and generally accessible, such as 
     Phil Zimmermann's Pretty Good Privacy program, which has been 
     distributed to the public free of charge via the Internet.
       The Secretary of Commerce would also be required to grant a 
     license exception for the export of computer hardware that 
     would otherwise be restricted solely on the basis that it 
     incorporates computer software with encryption capabilities 
     described above, or so-called ``crypto-ready'' computer 
     software or hardware incorporating an interface mechanism for 
     interaction with encryption hardware or software. Finally, 
     the Secretary

[[Page S1755]]

     of Commerce would be required to grant a license exception 
     for the export of encryption technology related or 
     ancillary to the items described above, to enable American 
     companies to license their technology for production, use 
     and sale abroad.
       Significantly, the government is authorized to continue 
     export controls on countries that pose terrorism concerns, 
     such as Libya, Syria and Iran, or other embargoed countries, 
     such as Cuba and North Korea, pursuant to the Trading With 
     the Enemy Act or the International Emergency Economic Powers 
     Act.
     Sec. 2806.  Requirements for release of decryption key or 
         provision of decryption assistance to a foreign country
       The Act bars investigative or law enforcement officers and 
     key holders from releasing a decryption key or providing 
     decryption assistance to a foreign country except when 
     certain conditions are satisfied. First, the foreign country 
     must have entered into a treaty or convention to provide 
     mutual assistance with respect to decryption. Second, the 
     foreign country must make a formal request to the United 
     States for such assistance. Third, the Attorney General or 
     the Attorney General's designee must obtain an order from the 
     district court in which the key holder resides directing the 
     key holder to release the decryption key or provide 
     decryption assistance. Finally, the order may only be issued 
     if the judge finds that (1) the decryption key or decryption 
     assistance being sought is necessary for the decryption of a 
     communication or information that the foreign country is 
     authorized to intercept or seize pursuant to its own domestic 
     law; (2) the law of the foreign country provides adequate 
     protection against the arbitrary interference of privacy 
     rights; and (3) the decryption key or decryption assistance 
     being sought is in connection with a criminal investigation 
     for conduct that would constitute a violation of a criminal 
     law of the United States if committed within the jurisdiction 
     of the United States.
       The grounds for issuance of the court order ensure that a 
     U.S. court will examine the quality of legal protections in 
     place in the foreign country on whose behalf of request for 
     decryption assistance is made and that the United States does 
     not facilitate the provision of decryption assistance to 
     legal system that do not meet minimum international human 
     rights standards or in cases that would violate American 
     constitutional standards.
       (b) Technical Amendment.--The Act adds new chapter 125 and 
     the new title in the table of chapters in title 18 of the 
     United States Code.
       Sec. 6. Intelligence Activities.--The Act does not 
     authorize the conduct of intelligence activities, nor affect 
     the conduct by Federal government officers or employees in 
     intercepting (1) encrypted or other official communications 
     of Federal executive branch or Federal contractors for 
     communications security purposes; (2) radio communications 
     between or among foreign powers or agents, as defined by the 
     Foreign Intelligence Surveillance Act (FISA); or (3) 
     electronic communication systems used exclusively by foreign 
     powers or agents, as defined by FISA.
                                 ______
                                 
      By Mr. BURNS (for himself, Mr. Leahy, Mr. Lott, Mr. Nickles, Mr. 
        Dorgan, Mrs. Hutchison, Mr. Craig, Mr. Wyden, Mr. Ashcroft, Mr. 
        Domenici, Mr. Thomas, Mr. Campbell, Mrs. Boxer, Mr. Brownback, 
        Mrs. Murray, Mr. Kempthorne, Mr. Inhofe, Mr. Faircloth, Mr. 
        Grams, and Mr. Allard):
  S. 377. A bill to promote electronic commerce by facilitating the use 
of strong encryption, and for other purposes; to the Committee on 
Commerce, Science, and Transportation.


THE PROMOTION OF COMMERCE ON-LINE IN THE DIGITAL ERA [PRO-CODE] ACT OF 
                                  1997

  Mr. BURNS. Mr. President, when I want to communicate, sometimes I 
send a postcard. In that case, I know not to say anything that I don't 
want printed on the front page of the newspaper. Somebody, anybody, can 
read it. When I buy an envelope and put a stamp on it, I am taking a 
step toward securing that information. I have a reasonable expectation 
that people will not open my mail.

  When I talk on the telephone--at least on a landline telephone--I 
have a reasonable expectation that nobody is listening in. Today, we 
are in a world that is characterized by the fact that nearly everyone 
has a computer and that those computers are, for the most part, 
connected to one another. In light of that fact, it is becoming more 
and more important to ensure that our communications over these 
computer networks are conducted in a secure way. It is no longer 
possible to say that when we move into the information age, we'll 
secure these networks, because we are already there. We use computers 
in our homes and businesses in a way that couldn't have been imagined 
10 years ago, and these computers are connected through networks, 
making it easier to communicate than ever before. This phenomenon holds 
the promise of transforming life in States like Montana, where health 
care and state-of-the-art education can be delivered over networks to 
people located away from population centers. These new technologies can 
improve the lives of real people, but only if the security of 
information that moves over these networks is safe and reliable.
  The problem today is that our computer networks are not as secure as 
they could be; it is fairly easy for amateur hackers to break into our 
networks. They can intercept information; they can steal trade secrets 
and intellectual property; they can alter medical records; the list is 
endless. Last Congress, FBI Director Freeh stated his profound concerns 
about the threat of economic espionage on a global basis. One solution 
to this, of course, is to let individuals and businesses alike to take 
steps to secure that information. Encryption is one technology that 
accomplishes that. Domestically, Americans are free to use strong 
encryption to secure their information--we are determined to make sure 
that that guarantee prevails.
  I rise today to introduce a bill, similar to one I introduced during 
the 104th Congress, which designed to promote electronic commerce, both 
domestically and globally, by facilitating the use of strong 
encryption. Last Congress, my bill was criticized for not acknowledging 
the legitimate law enforcement and national security interests raised 
by the widespread use of strong, or unbreakable encryption. In response 
to those criticisms, this Congress, working with Senator Leahy, Senator 
Dorgan, and Senator Lott, has modified this bill to address those 
concerns. Our approach, though, encourages Government officials to 
abandon the head-in-the-sand approach that they've taken for the past 7 
years, hoping that strong encryption would not become available 
globally, and take a proactive approach to addressing this technology. 
Because everyone agrees that this technology will eventually be widely 
available globally--many of us believe that the technology is already 
widely available globally--now is the time to get industry working with 
Government officials to teach them how to execute their duties in a 
global communications network where strong encryption is ubiquitous.
  We believe that this bill lays the most responsible course for 
addressing this technology, and I am pleased to announce that the 
following Senators have signed onto this bill as original cosponsors: 
Majority Leader Lott, Assistant Majority Leader Nickles, Senator 
Dorgan, Senator Wyden, Senator Kay Bailey Hutchison, Senator Craig, 
Senator Ashcroft, Senator Domenici, Senator Murray, Senator Brownback, 
Senator Kempthorne, Senator Inhofe, Senator Boxer, Senator Faircloth, 
Senator Thomas, Senator Grams, and Senator Allard. With such impressive 
bipartisan support, I am extremely optimistic that the bill will be 
reported out of the Commerce Committee quickly and will pass the Senate 
during this Congress.
  As I mentioned earlier, this legislation was drafted to not only 
address the concerns raised by industry but also to encourage law 
enforcement and national security officials to prepare themselves to do 
their job in an environment where strong, unbreakable encryption is 
everywhere. To date, the FBI/NSA/CIA have devoted their efforts in this 
area to maintaining the status quo and hoping that strong encryption 
does not become common worldwide. The evidence from a Commerce 
Department study conducted over a year ago, indicates that this has 
already taken place--the study identified 497 foreign-made products 
that were capable of offering encryption at a level in excess of that 
which domestic companies could export under the present export 
restrictions in 28 foreign countries. Therefore, this legislation 
encourages these officials to address this technology proactively. 
Essentially the bill was designed to accomplish the following:
  Ending the imposition of U.S. Government-designed encryption 
standards. This is accomplished by restricting the Department of 
Commerce [NIST] from imposing Government encryption standards intended 
for use by the private sector, and by prohibiting the Department of 
Commerce from setting de facto encryption standards through use of 
export controls.

[[Page S1756]]

  Promoting the use of commercial encryption. This is accomplished by 
prohibiting the restrictions on the sale of commercial encryption 
programs and products in interstate commerce; by prohibiting 
governmental imposition, expressly or in practice, of mandatory key 
escrow; and by permitting the export of, first, generally available 
software with encryption capabilities, and second, other software and 
hardware with encryption capabilities if exports of products with 
similar security have been exported for use by foreign financial 
institutions.
  Protecting the national security and public safety. This is 
accomplished by, first, imposing industry reporting requirements upon 
companies wishing to export products with strong encryption; second, 
creating an Information Security Board whose purpose is to get industry 
experts and law enforcement/national security officers to work 
together--both publicly and privately--to address the execution of law 
enforcement/national security functions in an environment where strong 
encryption has widely proliferated; and third, by prohibiting exports 
of particular encryption software and hardware to identified 
individuals or organizations in specific foreign countries if there is 
substantial evidence that it will be diverted to, or modified for, 
military or terrorist end-use.
  We believe that getting law enforcement and national security 
officials to address this technology proactively is a more responsible 
and defensible position than mandating a key escrow or other key 
recovery system upon industry.
  This legislation is vitally important to a wide range of domestic 
industries. The export restriction poses serious commercial threats to 
three distinct classes of industry: first, the industry that 
manufacturers and sells encryption software and hardware; second, 
industries that purchase encryption hardware and software and 
incorporate that technology into their products; and third, all 
industries that communicate with subsidiaries or customers over the 
global communications network.


                 The Encryption Manufacturing Industry

  While domestic companies presently hold a position of global 
leadership in the manufacture of products that provide strong 
encryption, this leadership is threatened by the provisions restricting 
the export of this technology. Because there are no import restrictions 
on the sale of this technology and because there are no domestic 
restrictions on the sale of this technology, foreign manufacturers of 
encryption technology have seized the opportunity provided by the 
continued application of these export restrictions to steal market 
share from domestic companies. Because we are already seeing hundreds 
of different foreign-made products offering strong encryption in the 
global marketplace, the foreign companies who manufacture these 
products are not only cornering the foreign market for this technology, 
they are beginning to compete for the U.S. market--as the global export 
of their product increases, their per-unit cost decreases; thus, 
domestic companies may soon find themselves competing for the U.S. 
market against a foreign product which offers comparable security but 
at a lower cost. In effect, these export restrictions are effectively 
exporting the entire encryption manufacturing industry.


 industries that incorporate encryption technology into their products

  The export restrictions apply not only to companies who are in the 
business of the manufacture and sale of encryption technology, but also 
to entire industries that purchase this technology and incorporate it 
into their products. The restrictions even apply to domestic industries 
who import encryption technology and incorporate it into their 
products. Furthermore, the restrictions prohibit export of products 
that are encryption-ready, that is, are designed to have the encryption 
package installed elsewhere. These industries suffer the same 
competition disadvantage in the global marketplace that our domestic 
encryption manufacturing companies face. Likewise, it will not be long 
before these industries find themselves (having already conceded all 
foreign markets to foreign competitors) competing for the U.S. market 
with foreign competitors offering similar products but at a lower 
price. Thus, continued application of the export restrictions on 
encryption technology could result in the export of a wide range of 
industries.
  As information security becomes an increasingly important 
consideration, we are seeing a broad range of products that are 
incorporating encryption technology. For example, the entire 
telecommunications manufacturing industry--from cellular telephones to 
switches--has a direct stake in this debate. Likewise, virtually all 
manufacturing concerns are impacted. I am in the process of collecting 
statements from 23 separate industries who see the speedy resolution of 
this problem as critical to their survival in the global marketplace.


                           nightmare scenario

  During the first hearing on Pro-Code last Congress, one of the 
witnesses, Jim Bidzos, the founder and owner of RSA Data Security, a 
prominent domestic encryption manufacturing company, pointed out that 
the United States is presently on the verge of exporting, industry by 
industry, the lion's share of our country's industry base. At that 
hearing, he pointed out that Nippon Telephone & Telegraph [NTT], the 
largest company on the planet with $600 billion in annual revenues and 
$300 million in annual subsidies from the Japanese Government has just 
announced the production--and intention to export globally--of a 
computer chip that provided unbreakable encryption, with a key of 1,024 
bit length. Thus, NTT is now in the position of cornering--quite 
easily, I might add--the global market on this technology and will soon 
be competing directly with RSA for the U.S. market with similar chips 
which, due to economies of scale, cost less to consumers. Once NTT has 
run all of its U.S. competitors out of business, it will be uniquely 
poised to take over every industry that incorporates the NTT chip into 
a product, in the exact same way as they took over the chips 
manufacturing industry.


    companies who transmit proprietary information over the global 
                         communications network

  Not only do the export restrictions pose commercial problems for 
industries that manufacture or incorporate encryption technology into 
their products, they also raise serious economic threats to any 
industry that transmits proprietary information over the global 
communications network. Because the public communications network is 
global, the export restrictions effectively prohibit companies who wish 
to communicate with subsidiaries, partners, or customers outside the 
United States in a secure way; transmitting the hardware or software to 
international associates to provide communications security in excess 
of that allowable under the export restrictions violate those 
restrictions. The economic implications arising from this application 
of the export restrictions is staggering: petroleum companies can't 
send exploration data to overseas subsidiaries; automotive companies 
can't send design information to factories abroad; Walt Disney can't 
send the digital package of the movie the Lion King to its distributor 
in England; the list is endless. Thus, all intellectual property or 
other proprietary information that travels over the public network is 
put at risk of economic espionage as a result of this application of 
these export restrictions.
  Finally, the controversy over this technology raises serious fourth 
amendment constitutional issues. In a new era where one's personal and 
economic information is increasingly rendered in digital form, the 
ability of the Government to peer into such data at will raises serious 
fourth amendment concerns.
  Further, it raises first amendment constitutional issues as well. 
Last month, a California Appellate Court affirmed a favorable ruling in 
the first amendment challenge to the Arms Export Control Act [AECA] and 
the International Traffic in Arms Regulations [ITAR] in Bernstein 
versus U.S. Department of State. Bernstein involved a graduate student, 
Daniel J. Bernstein, who developed an encryption algorithm called 
Snuffle. He had articulated his mathematical ideas in two ways: in an 
academic paper and in a source code. The State Department denied 
Bernstein's request to export his cryptographic product for the 
purposes

[[Page S1757]]

of teaching the Snuffle algorithm, to disclose it at academic 
conferences, or to publish it in journals or online discussion groups. 
Bernstein alleged that the restrictions were: an unconstitutional prior 
restraint on speech; an infringement on his free speech; and infringed 
the rights of association and equal protection. The State Department 
moved to dismiss the case of the grounds that these issues were 
nonjusticible, and the Court denied the motion finding that source code 
was considered to be speech for the purposes of the first amendment 
analysis.
  In light of the pressing commercial and constitutional impact of 
restricting the sale of this technology, both domestically and abroad, 
I believe that we must act now, before we effectively export entire 
industries. I encourage my colleagues to join me in supporting Pro-
Code.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 377

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Promotion of Commerce On-
     Line in the Digital Era (Pro-CODE) Act of 1997''.

     SEC. 2. FINDINGS; PURPOSE.

       (a) Findings.--The Congress finds the following:
       (1) The ability to digitize information makes carrying out 
     tremendous amounts of commerce and personal communication 
     electronically possible.
       (2) Miniaturization, distributed computing, and reduced 
     transmission costs make communication via electronic networks 
     a reality.
       (3) The explosive growth in the internet and other computer 
     networks reflects the potential growth of electronic commerce 
     and personal communication.
       (4) The internet and the global information infrastructure 
     have the potential to revolutionize the way individuals and 
     businesses conduct business.
       (5) The full potential of the internet for the conduct of 
     business cannot be realized as long as it is an insecure 
     medium in which confidential business information and 
     sensitive personal information remain at risk of unauthorized 
     viewing, alteration, and use.
       (6) Encryption of information enables businesses and 
     individuals to protect themselves against the unauthorized 
     viewing, alteration, and use of information by employing 
     widely understood and readily available science and 
     technology to ensure the confidentiality, authenticity, and 
     integrity of information.
       (7) In order to promote economic growth and meet the needs 
     of businesses and individuals in the United States, a variety 
     of encryption products and programs should be available to 
     promote strong, flexible, and commercially acceptable 
     encryption capabilities.
       (8) United States computer, computer software and hardware, 
     communications, and electronics businesses are leading the 
     world technology revolution, as those businesses have 
     developed and are prepared to offer immediately to computer 
     users worldwide a variety of communications and computer 
     hardware and computer software that provide strong, robust, 
     and easy-to-use encryption.
       (9) United States businesses seek to market the products 
     described in paragraph (8) in competition with scores of 
     foreign businesses in many countries that offer similar, and 
     frequently stronger, encryption products and programs.
       (10) The regulatory efforts by the Secretary of Commerce, 
     acting through the National Institute of Standards and 
     Technology, and other entities to promulgate standards and 
     guidelines in support of government-designed solutions to 
     encryption problems that--
       (A) were not developed in the private sector; and
       (B) have not received widespread commercial support,

     have had a negative impact on the development and marketing 
     of products with encryption capabilities by United States 
     businesses.
       (11) Because of outdated Federal controls, United States 
     businesses have been prohibited from exporting strong 
     encryption products and programs.
       (12) In response to the desire of United States businesses 
     to sell commercial products to the United States Government 
     and to sell a single product worldwide, the Secretary of 
     Commerce, acting through the National Institute of Standards 
     and Technology, has sought to require them to include 
     features in products sold both in the United States and 
     foreign countries that will allow the Federal Government easy 
     access to the plain text of all electronic information and 
     communications.
       (13) The Secretary of Commerce, acting through the National 
     Institute of Standards and Technology, has proposed that 
     United States businesses be allowed to sell products and 
     programs offering strong encryption to the United States 
     Government and in foreign countries only if the products and 
     programs include a feature guaranteeing the Federal 
     Government access to a key that decrypts information 
     (hereafter in this section referred to as ``key escrow 
     encryption'').
       (14) The key escrow encryption approach to regulating 
     encryption is reflected in the approval in 1994 by the 
     National Institute of Standards and Technology of a Federal 
     information processing standard for a standard of escrowed 
     encryption, known as the ``clipper chip'', that was flawed 
     and controversial.
       (15) The current policy of the Federal Government to 
     require that keys to decrypt information be made available to 
     the Federal Government as a condition of exporting strong 
     encryption technology has had the effect of prohibiting the 
     exportation of strong encryption technology.
       (16) The Federal Government has legitimate law enforcement 
     and national security objectives which necessitate the 
     disclosure to the Federal Government of general information 
     that is neither proprietary nor confidential by experts in 
     information security industries, including cryptographers, 
     engineers, and others designated in the design and 
     development of information security products. By relaxing 
     export controls on encryption products and programs, this Act 
     creates an obligation on the part of representatives of 
     companies involved in the export of information security 
     products to share information about those products to 
     designated representatives of the Federal Government.
       (17) In order to promote electronic commerce in the twenty-
     first century and to realize the full potential of the 
     internet and other computer networks--
       (A) United States businesses should be encouraged to 
     develop and market products and programs offering encryption 
     capabilities; and
       (B) the Federal Government should be prohibited from 
     promulgating regulations and adopting policies that 
     discourage the use and sale of encryption.
       (b) Purpose.--The purpose of this Act is to promote 
     electronic commerce through the use of strong encryption by--
       (1) recognizing that businesses in the United States that 
     offer computer hardware and computer software made in the 
     United States that incorporate encryption technology are 
     ready and immediately able, with respect to electronic 
     information that will be essential to conducting business in 
     the twenty-first century to provide products that are 
     designed to--
       (A) protect the confidentiality of that information; and
       (B) ensure the authenticity and integrity of that 
     information;
       (2) restricting the Department of Commerce with respect to 
     the promulgation or enforcement of regulations, or the 
     application of policies, that impose government-designed 
     encryption standards; and
       (3) promoting the ability of United States businesses to 
     sell to computer users worldwide computer software and 
     computer hardware that provide the strong encryption demanded 
     by such users by--
       (A) restricting Federal or State regulation of the sale of 
     such products and programs in interstate commerce;
       (B) prohibiting mandatory key escrow encryption systems; 
     and
       (C) establishing conditions for the sale of encryption 
     products and programs in foreign commerce.

     SEC. 3. DEFINITIONS.

       For purposes of this Act, the following definitions shall 
     apply:
       (1) As Is.--The term ``as is'' means, in the case of 
     computer software (including computer software with 
     encryption capabilities), a computer software program that is 
     not designed, developed, or tailored by a producer of 
     computer software for specific users or purchasers, except 
     that such term may include computer software that--
       (A) is produced for users or purchasers that supply certain 
     installation parameters needed by the computer software 
     program to function properly with the computer system of the 
     user or purchaser; or
       (B) is customized by the user or purchaser by selecting 
     from among options contained in the computer software 
     program.
       (2) Computing Device.--The term ``computing device'' means 
     a device that incorporates one or more microprocessor-based 
     central processing units that are capable of accepting, 
     storing, processing, or providing output of data.
       (3) Computer Hardware.--The term ``computer hardware'' 
     includes computer systems, equipment, application-specific 
     assemblies, modules, and integrated circuits.
       (4) Decryption.--The term ``decryption'' means the 
     unscrambling of wire or electronic communications or 
     information using mathematical formulas, codes, or 
     algorithms.
       (5) Decryption Key.--The term ``decryption key'' means the 
     variable information used in a mathematical formula, code, or 
     algorithm, or any component thereof, used to decrypt wire or 
     electronic communications or information that has been 
     encrypted.
       (6) Designed for Installation by the User or Purchaser.--
     The term ``designed for installation by the user or 
     purchaser'' means, in the case of computer software 
     (including computer software with encryption capabilities) 
     computer software--

[[Page S1758]]

       (A) with respect to which the producer of that computer 
     software--
       (i) intends for the user or purchaser (including any 
     licensee or transferee), to install the computer software 
     program on a computing device; and
       (ii) has supplied the necessary instructions to do so, 
     except that the producer or distributor of the computer 
     software program (or any agent of such producer or 
     distributor) may also provide telephone help-line or onsite 
     services for computer software installation, electronic 
     transmission, or basic operations; and
       (B) that is designed for installation by the user or 
     purchaser without further substantial support by the 
     supplier.
       (7) Encryption.--The term ``encryption'' means the 
     scrambling of wire or electronic communications or 
     information using mathematical formulas, codes, or algorithms 
     in order to preserve the confidentiality, integrity, or 
     authenticity of such communications or information and 
     prevent unauthorized recipients from accessing or altering 
     such communications or information.
       (8) General License.--The term ``general license'' means a 
     general authorization that is applicable to a type of export 
     that does not require an exporter of that type of export to, 
     as a condition to exporting--
       (A) submit a written application to the Secretary; or
       (B) receive prior written authorization by the Secretary.
       (9) Generally Available.--The term ``generally available'' 
     means, in the case of computer software (including software 
     with encryption capabilities), computer software that--
       (A) is distributed via the internet or that is widely 
     offered for sale, license, or transfer (without regard to 
     whether it is offered for consideration), including over-the-
     counter retail sales, mail order transactions, telephone 
     order transactions, electronic distribution, or sale on 
     approval; or
       (B) preloaded on computer hardware that is widely 
     available.
       (10) Internet.--The term ``internet'' means the 
     international computer network of both Federal and non-
     Federal interconnected packet-switched data networks.
       (11) Secretary.--The term ``Secretary'' means the Secretary 
     of Commerce.
       (12) State.--The term ``State'' means each of the several 
     States of the United States, the District of Columbia, the 
     Commonwealth of Puerto Rico, and any Territory or Possession 
     of the United States.

     SEC. 4. RESTRICTION OF DEPARTMENT OF COMMERCE ENCRYPTION 
                   ACTIVITIES IMPOSING GOVERNMENT ENCRYPTION 
                   SYSTEMS.

       (a) Limitation on Regulatory Authority Concerning 
     Encryption Standards.--The Secretary may not (acting through 
     the National Institute of Standards and Technology or 
     otherwise) promulgate, or enforce regulations, or otherwise 
     adopt standards or carry out policies that result in 
     encryption standards intended for use by businesses or 
     entities other than Federal computer systems.
       (b) Limitation on Authority Concerning Exports of Computer 
     Hardware and Computer Software with Encryption 
     Capabilities.--Except as provided in section 5(c)(3)(B), the 
     Secretary may not promulgate or enforce regulations, or adopt 
     or carry out policies in a manner inconsistent with this act, 
     or that have the effect of imposing government-designed 
     encryption standards on the private sector by restricting the 
     export of computer hardware and computer software with 
     encryption capabilities.

     SEC. 5. PROMOTION OF COMMERCIAL ENCRYPTION PRODUCTS.

       (a) Prohibition on Restrictions on Sale or Distribution in 
     Interstate Commerce.--
       (1) In General.--Except as provided in this Act, neither 
     the Federal government nor any State may restrict or regulate 
     the sale in interstate commerce by any person of any product 
     or program designed to provide encryption capabilities solely 
     because such product or program has encryption capabilities. 
     Nothing in this paragraph may be construed to preempt any 
     provision of Federal or State law applicable to contraband or 
     regulated substances.
       (2) Applicability.--Paragraph (1) shall apply without 
     regard to the encryption algorithm selected, encryption key 
     length chosen, or implementation technique or medium used for 
     a product or program with encryption capabilities.
       (b) Prohibition on Mandatory Key Escrow.--Neither the 
     Federal government nor any State may require, as a condition 
     of sale in interstate commerce, that a decryption key, or 
     access to a decryption key, be given to any other person 
     (including a Federal agency or an entity in the private 
     sector that may be certified or approved by the Federal 
     government or a State).
       (c) Control of Exports by Secretary.--
       (1) General Rule.--Notwithstanding any other provision of 
     law and subject to paragraphs (2), (3), and (4), the 
     Secretary shall have exclusive authority to control exports 
     of all computer hardware, computer software, and technology 
     with encryption capabilities, except computer hardware, 
     computer software, and technology that is specifically 
     designed or modified for military use, including command, 
     control, and intelligence applications.
       (2) Items That Do Not Require Individual Licenses.--Except 
     as provided in paragraph (3)(b) of this subsection, only a 
     general license may be required, except as otherwise provided 
     under the Trading with the Enemy Act (50 U.S.C. App. 1 et 
     seq.) or the International Emergency Economic Powers Act (50 
     U.S.C. 1701 et seq.) (but only to the extent that the 
     authority of the International Emergency Economic Powers Act 
     is not exercised to extend controls imposed under the Export 
     Administration Act of 1979), for the export or reexport of--
       (A) any computer software, including software with 
     encryption capabilities, that--
       (i) is generally available, as is, and designed for 
     installation by the user or purchaser; or
       (ii) is available on the date of enactment of this Act, or 
     becomes legally available thereafter, in the public domain 
     (including on the internet) or publicly available because it 
     is generally accessible to the interested public in any form; 
     or
       (B) any computing device or computer hardware solely 
     because it incorporates or employs in any form computer 
     software (including computer software with encryption 
     capabilities) that is described in subparagraph (A).
       (3) Computer Software and Computer Hardware with Encryption 
     Capabilities.--
       (A) In General.--Except as provided in subparagraph (B), 
     the Secretary shall authorize the export or reexport of 
     computer software and computer hardware with encryption 
     capabilities under a general license for nonmilitary end-uses 
     in any foreign country to which those exports of computer 
     software and computer hardware of similar capability are 
     permitted for use by financial institutions that the 
     Secretary determines not to be controlled in fact by United 
     States persons.
       (B) Exception.--The Secretary shall prohibit the export or 
     reexport of particular computer software and computer 
     hardware described in this subsection to an identified 
     individual or organization in a specific foreign country if 
     the Secretary determines that there is substantial evidence 
     that such software and computer hardware will be--
       (i) diverted to a military end-use or an end-use supporting 
     international or domestic terrorism;
       (ii) modified for military or terrorist end-use, including 
     acts against the national security, public safety, or the 
     integrity of the transportation, communications, or other 
     essential systems of interstate commerce in the United 
     States;
       (iii) reexported without the authorization required under 
     Federal law; or
       (iv) intentionally used to evade enforcement of United 
     States law or taxation by the United States or by any State 
     or local government.
       (4) Reporting.--
       (A) Exports.--The publisher or manufacturer of computer 
     software or hardware with encryption capabilities shall 
     disclose (for reporting purposes only) within 30 days after 
     export to the Secretary such information regarding a 
     program's or product's encryption capabilities as would be 
     required for an individual license to export that program or 
     product.
       (B) Report Not an Export Precondition.--Nothing in this 
     paragraph shall be construed to require, or to permit the 
     Secretary to impose any conditions or reporting requirements, 
     including reporting under subparagraph (A), as a precondition 
     to the exportation of any such product or program.

     SEC. 6. INFORMATION SECURITY BOARD.

       (a) Information Security Board to be Established.--The 
     Secretary shall establish an Information Security Board 
     comprised of representatives of agencies within the Federal 
     Government responsible for or involved in the formulation of 
     information security policy, including export controls on 
     products with information security features (including 
     encryption). The Board shall meet at such times and in such 
     places as the Secretary may prescribe, but not less 
     frequently than quarterly. The Federal Advisory Committee Act 
     (5 U.S.C. App.) does not apply to the Board or to meetings 
     held by the Board under subsection (d).
       (b) Purposes.--The purposes of the Board are--
       (1) to provide a forum to foster communication and 
     coordination between industry and the Federal government; and
       (2) to foster the aggregation and dissemination of general, 
     nonproprietary, and nonconfidential developments in important 
     information security technologies, including encryption.
       (c) Requirements.--
       (1) Reports to agencies.--The Board shall regularly report 
     general, nonproprietary, and nonconfidential information to 
     appropriate Federal agencies to keep law enforcement and 
     national security agencies abreast of emerging technologies 
     so they are able effectively to execute their 
     responsibilities.
       (2) Publications.--The Board shall cause such information 
     (other than classified, proprietary, or confidential 
     information) as it deems appropriate, consistent with its 
     purposes, to be published from time to time through any 
     appropriate medium and to be made available to the public.
       (d) Meetings.--The Secretary shall establish a process for 
     quarterly meetings between the Board and representatives from 
     the private sector with interest or expertise in information 
     security, including cryptographers, engineers, and product 
     managers. The Board may meet at anytime with one or more 
     representatives of any person involved in the development, 
     production, or distribution of encryption technology or of 
     computing devices that contain encryption technology.

[[Page S1759]]

     SEC. 7. STATUTORY CONSTRUCTION.

       Nothing in this Act may be construed to affect any law 
     intended to prevent the--
       (1) distribution of descramblers or any other equipment for 
     illegal interceptions of cable and satellite television 
     signals;
       (2) illegal or unauthorized distribution or release of 
     classified, confidential, or proprietary information; or
       (3) enforcement of Federal or State criminal law.

  Mr. GRAMS. Mr. President, I rise in support of Senator Burns' 
legislation, the Promotion of Commerce On-Line in the Digital Era (Pro-
CODE) Act of 1997 and am pleased to be an original co-sponsor of the 
bill.
  This is important legislation which will create the proper balance 
between encryption technology export interests as well as national 
security interests. The administration's encryption policy was 
disappointing to me, since it tipped the balance too far in the 
direction of security and law enforcement concerns, risking important 
privacy rights of producers and users of cncryption technology.
  Again our Government has found itself in the position of creating 
unilateral export controls that will do only one thing--essentially 
terminate export opportunities for U.S. companies. To limit U.S. 
companies from exporting encyrption technology at 56 bits without a 
costly key recovery system will simply price us out of the market. Many 
of our allies are ready to sell far more sophisticated technology 
without a key recovery system. It's not hard to see who will pick up 
most of a growing encryption technology global market.
  Also, key recovery is not needed for encryption technology sold 
domestically or imported. If U.S. companies are forced to sell only the 
technology including the key recovery for cost savings reasons, it's 
also not hard to see how quickly the domestic market will dry up in 
favor of imports. The solution is not import controls. The Burns bill 
is the solution that 18 Senators of both parties have supported today.
  Senator Burns' bill protects national security interests. It would 
not allow exports over what is available from our allies. It also 
allows Commerce to prohibit specific exports where there is substantial 
evidence the technology will be diverted or used by terrorists, drug 
dealers and other criminals. Further, it creates an Information 
Security Board designed to get industry and law enforcement interests 
together to address this important issue.
  I am sensitive to law enforcement and national security concerns, but 
the holes in the administration's policy are enormous and smack of 
politics more than sound policy. Criminals and terrorists will simply 
not use U.S. technology, or they will find a way to circumvent the key 
recovery system. Also, they can use encryption technology within the 
U.S. without the same scrutiny.
  Senator Burns has described the many problems and questions raised by 
a key recovery system held by a third party, so I won't belabor them. 
But the privacy concerns are real. I can't imagine why users would want 
to buy a product that simply puts at risk unwarranted release of the 
encrypted material. No matter how many protections can be built into 
the key escrow system, there is no way to avoid some misuse or abuse of 
the system.
  Senator Burns should be congratulated for his effort to correct this 
policy. I applaud his efforts and strongly support them as chairman of 
the International Finance Subcommittee of the Banking Committee which 
has jurisdiction over many export control issues.
                                 ______
                                 
      By Mr. MURKOWSKI (for himself and Mr. Stevens):
  S. 379. A bill entitled the ``Native Alaskan Subsistance Whaling 
Provision''; to the Committee on Finance.


                 alaska subsistence whaling legislation

  Mr. MURKOWSKI. Mr. President, I rise on behalf of myself and Senator 
Stevens to introduce legislation that would resolve a dispute that has 
existed for several years between the IRS and native whaling captains 
in my State. Our legislation would amend the Internal Revenue Code to 
ensure that a charitable donation tax deduction would be allowed for 
native whaling captains who organize and support subsistence whaling 
activities in their communities.
  Subsistence whaling is a necessity to the Alaska Native community. In 
many of our remote village communities, the whale hunt is a tradition 
that has been carried on for generations over many millennia. It is the 
custom that the captain of the hunt make all provisions for the meals, 
wages, and equipment costs associated with this important activity.
  In most instances, the captain is repaid in whale meat and muktuck, 
which is blubber and skin. However, as part of the tradition, the 
captain is required to donate a substantial portion of the whale to his 
village in order to help the community survive.
  The proposed deduction would allow the captain to deduct up to $7,500 
to help defray the costs associated with providing this community 
service.
  Mr. President, I want to point out that if the captain incurred all 
of these expenses and then donated the whale meat to a local charitable 
organization, the captain would almost certainly be able to deduct the 
costs he incurred in outfitting the boat for the charitable purpose. 
However, the cultural significance of the captain's sharing the whale 
with the community would be lost.
  This is a very modest effort to allow the Congress to recognize the 
importance of this part of our Native Alaskan tradition. Last year, the 
Joint Committee on Taxation estimated that this provision would cost a 
mere $3 million over a 10-year period. I think that is a very small 
price for preserving this vital link with our natives' heritage.
  I ask unanimous consent that the text of the legislation be included 
in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 379

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

     SECTION 1. CHARITABLE CONTRIBUTION DEDUCTION FOR CERTAIN 
                   EXPENSES INCURRED IN SUPPORT OF NATIVE ALASKAN 
                   SUBSISTENCE WHALING.

       (a) In General.--Section 170 of the Internal Revenue Code 
     of 1986 (relating to charitable, etc., contributions and 
     gifts) is amended by redesignating subsection (m) as 
     subsection (n) and by inserting after subsection (l) of the 
     following new subsection:
       ``(m) Expenses Paid by Certain Whaling Captains in Support 
     of Native Alaska Subsistence Whaling.--
       ``(1) In general.--In the case of an individual who is 
     recognized by the Alaska Eskimo Whaling Commission as a 
     whaling captain charged with the responsibility of 
     maintaining and carrying out sanctioned whaling activities 
     and who engages in such activities during the taxable year, 
     the amount described in paragraph (2) (to the extent such 
     amount does not exceed $7,500 for the taxable year) shall be 
     treated for purposes of this section as a charitable 
     contribution.
       ``(2) Amount described.--The amount described in this 
     paragraph is the aggregate of the reasonable and necessary 
     whaling expenses paid by the taxpayer during the taxable year 
     in carrying out sanctioned whaling activities. For purposes 
     of the preceding sentence, the term `whaling expenses' 
     includes expenses for--
       ``(A) the acquisition and maintenance of whaling boats, 
     weapons, and gear used in sanctioned whaling activities,
       ``(B) the supplying of food for the crew and other 
     provisions for carrying out such activities, and
       ``(C) storage and distribution of the catch from such 
     activities.
       ``(3) Sanctioned whaling activities.--For purposes of this 
     subsection, the term `sanctioned whaling activities' means 
     subsistence bowhead whale hunting activities conducted 
     pursuant to the management plan of the Alaska Eskimo Whaling 
     Commission.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to all taxable years beginning before, on, or 
     after the date of the enactment of this Act.
                                 ______
                                 
      By Mr. DURBIN (for himself, Mr. Kennedy, and Mr. Kohl):
  S. 380. A bill to prohibit foreign nationals admitted to the United 
States under a nonimmigrant visa from possessing a firearm; to the 
Committee on the Judiciary.


               Empire State Building Counterterrorism Act

  Mr. DURBIN. Mr. President, I rise today to introduce with Senators 
Kennedy and Kohl the ``Durbin-Kennedy Empire State Building Counter-
Terrorism Act of 1997.''
  This legislation is spurred by the recent tragedy at the Empire State 
Building where a man in this country on a tourist visa shot and killed 
Chris Burmeister, a young Danish tourist, wounded six and then turned 
the gun on himself.

[[Page S1760]]

  But this bill is about much more than that one tragedy. It is an 
effort to address a real problem and to pass a sensible measure to deal 
with it. The shooting at the Empire State Building has sadly served to 
reveal a glaring gap in our laws--a gap that any would-be terrorist 
could walk through.
  The fact is that any foreign national who is coming into the United 
States on a tourist visa will probably pass through several airport 
security checks to determine whether or not he is carrying a firearm. 
But as we have learned in the tragedy at the Empire State Building, 
that foreign tourist can slip through our Nation's laws and can 
probably buy a gun once here in the United States more easily than you 
or I could.
  The motivation for the killing in New York is not clearly terrorist 
in nature. But I do not want to wait until a terrorist exploits these 
loopholes in order to act. Let us close the gap now.
  Let me briefly explain the problem. Currently, more than 20 million 
people a year come into the United States on nonimmigrant visas. Nearly 
1 million of them came in via Chicago last year. And by the way, that 
number does not include people from Mexico and Canada. There are more 
than 50 types of nonimmigrant visas, including tourist visas, work 
visas, student visas, and diplomatic visas. These visas are issued to 
people who do not intend to reside permanently in the United States and 
they are issued without any kind of criminal background check of the 
applicant.
  Under the Brady law, anyone who wants to buy a gun in this country 
has to undergo a criminal background check. In the last 28 months, this 
requirement has stopped more than 186,000 illegal gun purchases. 
Seventy percent of those denied were felons.
  But what the Empire State Building shooting reveals is a gap in this 
law. Someone who just came to the United States on a tourist visa 
clearly does not have a criminal record in this country. Yet he or she 
may have such a record in their country of origin. The Brady bill 
cannot catch them since we do not search criminal records in foreign 
countries. So the tourist with a criminal record can easily get a gun.
  It is frightening to anticipate the damage that a foreign terrorist 
could wreak by exploiting this gap. But closing this loophole is easy. 
And we should do it now. Not later.
  The measure I propose is straightforward. It bars people who have 
come to this country on nonimmigrant visas from being able to purchase 
or possess a gun.
  Let me emphasize that the vast majority of the people who come to 
this country on nonimmigrant visas do not have any kind of criminal 
background and do not intend to buy guns or harm anyone. And that is 
why the legislation has two important and sensible exceptions.
  First, foreign nationals who enter this country on nonimmigrant visas 
and who are here for legitimate sporting purposes, law enforcement 
purposes or diplomatic purposes will be exempt. It only makes sense 
that someone who is here to take part in a shooting competition should 
be able to bring in their gun.
  The second exception allows people here on nonimmigrant visas to buy 
a firearm if they have been in this country for 6 months and if they 
can prove that they do not have a criminal record in their country of 
origin.
  Mr. President, this is a rational piece of legislation. We are all 
concerned with the growing terrorist threat in our country. No one who 
has followed the news in the last decade can be unaware of the fact 
that our Nation is a terrorist target. Well, we should not be putting 
guns in the hands of terrorists. This bill will stop that from 
happening.
  I hope all of us can work quickly to pass this measure.
  Mr. KENNEDY. Mr. President, the killings at the Empire State Building 
last Sunday were the shots heard 'round the country. The entire Nation 
was horrified to learn of the senseless assault on seven tourists, and 
hopefully we will be shocked into action to close the flagrant loophole 
in the gun laws that allowed the attack to happen. It's preposterous 
that a deranged alien could arrive in this country, set up temporary 
residence in a motel, buy a semiautomatic handgun, and start blasting 
away in a crowded tourist site. The gunman at the Empire State Building 
killed himself. One other person died, six were injured, and countless 
others on the observation deck at the time bear the psychological scars 
from this senseless atrocity. Most of the victims were visitors from 
other countries--France, Switzerland, and Argentina--and were there 
seeing one of the most famous symbols of America.
  Imagine the nightmare for a 16-year-old French tourist who saw both 
her parents shot, or the 10-year-old girl from the Bronx whose father 
was wounded. The thoughts and prayers of all Americans are with the 
victims and their families.
  The shock and disbelief turned to anger as we learned more about the 
circumstances of the shooting. The gunman, Abu Kamal, was in the United 
States on a tourist visa, and was easily able to purchase a Berreta 
semiautomatic handgun in Florida, even though there is a 90-day 
residency requirement under Federal law before aliens can purchase a 
handgun.
  The current gaps in Federal law are appalling. A foreign national 
can come to the United States on a tourist visa, or a work visa, and 
then obtain a handgun legally with ease. There is virtually nothing to 
stop a terrorist from entering the United States on a tourist visa, and 
then purchasing a supply of weapons legally in the United States for 
use in a terrorist activity. There is no legitimate reason why someone 
who is in the United States temporarily should be able to purchase or 
carry a firearm here.

  Senator Durbin and I are introducing a bill today to close this 
gaping loophole. Our bill will prohibit foreign nationals who are in 
the United States on a nonimmigrant visa from possessing a firearm. 
Foreign nationals here on a tourist visa, or a temporary work visa, 
would be prohibited from carrying a firearm, and dealers would be 
prohibited from knowingly selling them a firearm. The INS already 
provides immigration information to law enforcement authorities 
conducting background checks on gun purchasers, so they are well-
positioned to provide this additional information to firearms dealers.
  The bill does not apply to permanent residents. In addition, a series 
of sensible exceptions will permit certain foreign nationals who are in 
the United States temporarily to carry a firearm. For example, foreign 
nationals performing official State functions, such as bodyguards and 
other Embassy personnel, would be exempted. Foreign nationals who are 
coming to the United States to go hunting would also be exempted. The 
Justice Department would have the discretion to grant additional 
exemptions to qualified applicants.
  We intend to address in future legislation another major aspect of 
the gun violence problem in America--which is the widespread disparity 
between gun control laws in various States. It will be impossible to 
stop guns from coming into New York or Massachusetts, or elsewhere, if 
we don't solve this problem. Fifteen percent of the gun crimes 
committed in New York City in 1995 involved guns traced to Florida. 
Gun-running will always be a profitable business, as long as some 
States make it as easy to buy guns as to buy groceries. We must address 
this larger problem, or we will continue to suffer these senseless acts 
of violence.
  This bill cannot undo the tragedy last Sunday at the Empire State 
Building. But we can prevent future similar tragedies by closing the 
loopholes that exist in current Federal law that enable foreign 
nationals to obtain firearms too easily. I urge my colleagues to 
support this sensible and needed proposal.
  Mr. President, I commend the Senator from Illinois for his forceful 
statement in support of this legislation which will address a gaping 
loophole that exists in the gun laws and which he has ably explained on 
the floor of the Senate this afternoon where individuals would be able 
to come into the United States on a temporary visa and be able to 
purchase not just perhaps one weapon but a whole series of weapons and 
be able to use them for whatever purposes they might want here in the 
United States or perhaps take them outside of the United States. This 
is a gaping loophole. With the information that is being acquired by 
the INS, there is no reason it cannot be made available to gun dealers 
around the

[[Page S1761]]

country with a minimum amount of interference in their ability to sell 
guns in conformance with other provisions of the law.
  I think this is a really important piece of legislation, and I 
welcome the opportunity to work with the Senator. Hopefully, we will 
have it acted on as well as the other provisions that are before the 
Senate dealing with the massive movement of weapons from State to 
State. In my own State of Massachusetts, about 80 percent of the 
weapons that are used in crimes of violence are imported. As good as we 
have, in terms of the local and State control, we are not able to 
control it and deal with the issues of providing security to our people 
in our State.
  But I thank the Senator and welcome the chance to join with him and 
look forward to working with him on the legislation.
                                 ______
                                 
      By Mr. ROCKEFELLER (for himself, Mr. Mack, Mr. Frist, Mr. 
        Moynihan, Mr. Kennedy, Mr. Abraham, Mr. Kerrey, Mr. Craig, Mr. 
        Wellstone, Mr. Cochran, Ms. Mikulski, Mr. Campbell, Mr. Leahy, 
        Mr. Jeffords, Mrs. Hutchison, Mr. Hollings, Mr. Faircloth, and 
        Mr. Bingaman.
  S. 381. A bill to establish a demonstration project to study and 
provide coverage of routine patient care costs for Medicare 
beneficiaries with cancer who are enrolled in an approved clinical 
trail program; to the Committee on Finance.


        the medicare cancer clinical trial coverage act of 1997

  Mr. ROCKEFELLER. Mr. President, I am very pleased to be reintroducing 
a modest but important bill that would establish a demonstration 
project to assure Medicare beneficiaries with cancer that Medicare will 
cover their routine patient costs when part of a clinical research 
trial. I am especially proud to have Senator Mack joining me again as 
my key cosponsor. It is a privilege to work with Senator Mack, who 
knows the anguish of fighting cancer only too well. And, we are 
especially glad to be joined by so many of our colleagues, including 
Senators Frist, Moynihan, Kennedy, Abraham, Kerrey, Craig, Wellstone, 
Cochran, Mikulski, Campbell, Leahy, Jeffords, Hutchison, Hollings, and 
Faircloth.
  Mr. President, cancer is the second leading cause of death in the 
United States. Medicare beneficiaries account for more than half of all 
cancer diagnoses, and 60 percent of all cancer deaths. Over 12,000 new 
cases of cancer will be diagnosed this year in my own State of West 
Virginia.
  Access to clinical trials is especially important in the field of 
cancer. With today's rapid discoveries of new cancer therapies and the 
lack of effective treatments for some cancers, peer-reviewed clinical 
trials often provide cancer patients the best available care. Given 
differences in biological responses according to age, research is 
needed on the particular effects of cancer and cancer treatments on 
those age 65 and older. Our legislation will promote that vital 
research. At the same time, it will provide the Health Care Financing 
Administration with the information it needs on whether coverage for 
experimental therapies and treatments should be eventually extended to 
the entire Medicare population. In the long run, the coverage of 
patient care costs in clinical trials will save the health care 
delivery system millions of dollars by telling us at the earliest 
possible time which medical interventions work and which do not.
  Our legislation is an effort to give Medicare beneficiaries the 
security and decency of knowing that if they are diagnosed with cancer, 
their treatment options will be determined by whatever therapy they and 
their doctor decide will give them the best shot of beating the 
disease. These life and death decisions should not be guided by what 
may or may not be paid for by the Medicare Program.
  Currently, Medicare's payment policies are unclear and, as a result, 
unpredictable. There is anecdotal evidence that Medicare, in fact, 
usually pays for the routine patient care costs associated with 
clinical research trials. But when denials do happen, they tend to be 
arbitrary and random. This unpredictability discourages Medicare 
patients from enrolling in a clinical trial, even when it may medically 
be their best treatment option.

  Three winners of the Nobel Prize in Medicine and Physiology have 
written me and Senator Mack in support of our legislation. They wrote, 
``clinical trials represent the standard of care and are often the best 
hope for a successful treatment outcome. Only by supporting clinical 
research will we be able to advance the state of medical knowledge and 
learn more quickly which medical interventions are effective and which 
are not.''
  Mr. President, our legislation is very targeted to give older 
Americans their best shot at fighting cancer. This bill does not create 
a new benefit. It merely ensures that patients enrolled in clinical 
studies receive Medicare coverage for the same type of routine patient 
care costs, such as hospital and physician fees, that would be covered 
outside of a trial setting. We are not asking Medicare to pay for the 
cost of research. These expenses will still be covered by trial 
sponsors, including pharmaceutical companies.
  In establishing a demonstration project, this bill will also provide 
valuable information about the costs and benefits of providing coverage 
for clinical trials for other life threatening diseases. We started 
with cancer first because cancer is a major affliction of Medicare 
beneficiaries. In addition, there is a well-established national cancer 
clinical trial system to deliver this patient care.
  Mr. President, this is the year to enact this bill into law. This 
proposal is a key Medicare reform to include in the action expected in 
the upcoming budget process that will deal with Medicare spending and 
policy.
  Mr. President, I ask unanimous consent that additional material be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 381

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Medicare Cancer Clinical 
     Trial Coverage Act of 1997''.

     SEC. 2. MEDICARE CANCER PATIENT DEMONSTRATION PROJECT.

       (A) Establishment.--Not later than January 1, 1998, the 
     Secretary of Health and Human Services (in this Act referred 
     to as the ``Secretary'') shall establish a demonstration 
     project which provides for payment under the medicare program 
     under title XVIII of the Social Security Act (42 U.S.C. 1395 
     et seq.) of routine patient care costs--
       (1) which are provided to an individual diagnosed with 
     cancer and enrolled in the medicare program under such title 
     as part of the individual's participation in an approved 
     clinical trial program; and
       (2) which are not otherwise eligible for payment under such 
     title for individuals who are entitled to benefits under such 
     title.
       (b) Application.--The beneficiary cost sharing provisions 
     under the medicare program, such as deductibles, coinsurance, 
     and copayment amounts, shall apply to any individual 
     participating in a demonstration project conducted under this 
     Act.
       (c) Approved Clinical Trial Program.--For purposes of this 
     Act, the term ``approved clinical trial program'' means a 
     clinical trial program which is approved by--
       (1) the National Institutes of Health;
       (2) a National Institutes of Health cooperative group or a 
     National Institutes of Health center;
       (3) the Food and Drug Administration (in the form of an 
     investigational new drug or device exemption);
       (4) the Department of Veterans Affairs;
       (5) the Department of Defense; or
       (6) a qualified nongovernmental research entity identified 
     in the guidelines issued by the National Institutes of Health 
     for center support grants.
       (d) Routine Patient Care Costs.--
       (1) In general.--for purposes of this Act, ``routine 
     patient care costs'' shall include the costs associated with 
     the provision of items and services that--
       (A) would otherwise be covered under the medicare program 
     if such items and services were not provided in connection 
     with an approved clinical trial program; and
       (B) are furnished according to the design of an approved 
     clinical trial program.
       (2) Exclusion.--For purposes of this Act, ``routine patient 
     care costs'' shall not include the costs associated with the 
     provision of--
       (A) an investigational drug or device, unless the Secretary 
     has authorized the manufacturer of such drug or device to 
     charge for such drug or device; or
       (B) any item or service supplied without charge by the 
     sponsor of the approved clinical trial program.

     SEC. 3. STUDY, REPORT, AND TERMINATION.

       (a) Study.--The Secretary shall study the impact on the 
     medicare program under title

[[Page S1762]]

     XVIII of the Social Security Act of covering routine patient 
     care costs for individuals with a diagnosis of cancer and 
     other diagnoses, who are entitled to benefits under such 
     title and who are enrolled in an approved clinical trial 
     program.
       (b) Report to Congress.--Not later than January 1, 2002, 
     the Secretary shall submit a report to Congress that contains 
     a statement regarding--
       (1) any incremental cost to the medicare program under 
     title XVIII of the Social Security Act resulting from the 
     provisions of this Act; and
       (2) a projection of expenditures under the medicare program 
     if coverage of routine patient care costs in an approved 
     clinical trial program were extended to individuals entitled 
     to benefits under the medicare program who have a diagnosis 
     other than cancer.
       (c) Termination.--The provisions of this Act shall not 
     apply after December 31, 2002.
                                  ____


          Medicare Cancer Clinical Trial Coverage Act of 1997


                              current Law

       Medicare's policy regarding coverage of clinical trials is 
     unclear. Medicare carriers occasionally deny coverage of 
     physician services or hospital charges on the grounds that 
     they have been provided in the context of a clinical trial. 
     Patients or physicians may be at risk for the cost of items 
     or services that are normally covered by Medicare if they 
     choose to enroll in a clinical trial, even though such trials 
     are regarded as the standard of care for treatment of cancer.


                            proposed change

       The Secretary of HHS would be required to conduct a 
     demonstration project, beginning no later than January 1, 
     1998, which would study the feasibility of covering patient 
     costs for beneficiaries diagnosed with cancer and enrolled in 
     certain approved clinical trials. Eligibility for coverage 
     would be dependent on approval of the trial design by one of 
     several high quality peer-review organizations, including the 
     National Institutes of Health, the Food and Drug 
     Administration, the Department of Defense, and the Department 
     of Veterans Affairs. No later than January 1, 2002, the 
     Secretary would be required to report to Congress concerning 
     any incremental costs of such coverage and the advisability 
     of covering other diagnoses under the same circumstances. The 
     demonstration project would sunset on December 31, 2002.
       Supported by: National Coalition for Cancer Survivorship; 
     Candlelighters Childhood Cancer Foundation; Cancer Care, 
     Inc.; National Alliance of Breast Cancer Organizations 
     (NABCO); US TOO International; Y-ME National Breast Cancer 
     Organization; American Cancer Society; American Society of 
     Clinical Oncology; American Society of Pediatric Hematology/
     Oncology; Association of American Cancer Institutes; 
     Association of Community Cancer Centers; Cancer Research 
     Foundation of America; North American Brain Tumor Coalition; 
     Leukemia Society of America; National Breast Cancer 
     Coalition; National Childhood Cancer Foundation; National 
     Coalition for Cancer Research; Oncology Nursing Society; 
     Prostate Cancer Support-group Network; and Society of 
     Surgical Oncology.

  Mr. MACK. Mr. President, I am pleased to join Senator Rockefeller 
today as we introduce legislation to provide Medicare patients fighting 
cancer with coverage of benefits when they participate in approved 
clinical trials.
  Under current law, Medicare will not generally pay for the costs of 
patient care if they are participating in clinical trials. 
Beneficiaries are denied access to clinical trials of promising new 
therapies because Medicare deems these therapies experimental, and 
therefore not qualified for coverage. This means cancer patients who 
are Medicare beneficiaries essentially have two choices when they have 
exhausted all traditional cancer therapies--either pay the costs of 
participating in a clinical trial themselves, or go without additional 
treatment. For all but the most wealthy beneficiaries, it is too cost-
prohibitive to take part in a clinical trial.
  Clinical trials are one of the most effective ways the Federal 
Government has of determining which treatments are most effective. Yet, 
researchers have told me they have difficulty accruing the required 
number of patients to participate in the trials they are conducting. 
Researchers have identified noncoverage by Medicare and private 
insurers as one of the primary reasons why patients do not participate 
in clinical trials. At a time when American researchers are making such 
tremendous progress in cancer genetics and cancer biology, it is 
essential that this knowledge be translated into new therapies through 
well-designed clinical trials. This legislation will help enhance our 
research efforts by facilitating broad patient participation in 
important cancer clinical trials.
  Our legislation is limited to only the highest-quality clinical 
trials. Only those trials which have undergone the rigors of peer-
review will be considered. These include trials approved by the 
National Institutes of Health [NIH], the Food and Drug Administration, 
the Department of Veterans Affairs, the Department of Defense, or 
organizations which are approved by the NIH, such as the American 
Cancer Society.
  Like most of my colleagues, I am very reluctant to introduce 
legislation to expand Medicare at a time when the report of the Board 
of Trustees of Social Security and Medicare clearly shows that Medicare 
is going broke. My support of such legislation is conditional upon the 
added benefit providing a clear and needed service at no significant 
cost to taxpayers.
  The legislation we introduce today does not add to Medicare's basic 
benefit package, but merely provides coverage for routine patient costs 
which Medicare is already obligated to reimburse when provided outside 
a clinical trial. Medicare will not be responsible for paying for 
research or new pharmaceutical products. In addition, Medicare 
beneficiaries will still be responsible for meeting deductibles and 
copayment requirements traditionally required by Medicare. Because 
these beneficiaries are cancer patients, they are already receiving, or 
will receive in the future, many of the medical services covered by 
this legislation.
  Finally, this is a true demonstration program. In 2002, the Secretary 
of Health and Human Services must submit a report to Congress detailing 
any cost increases to the Medicare program and provide projects for 
future expenditures, if the program continues. Congress can then 
decide, based upon these data and any hearings which may take place, 
whether to enact legislation to make coverage of cancer clinical trials 
permanent.
  Therefore, I am convinced this legislation meets my two criteria for 
expanding Medicare. First, there is an indisputable urgent need for 
this benefit and, second, I believe it will not add significantly to 
the costs of the Medicare system. In fact, the information we learn 
from these clinical trials may provide us with more cost-effective 
means of treating cancer patients.
  As I have mentioned to my colleagues before, many members of my 
family have battled cancer. As a family, we have worked extensively 
with numerous cancer organizations. As a Senator, I have met with 
thousands of cancer patients throughout Florida and the rest of the 
United States. They have told me how important it is that patients 
themselves, not the Government, be responsible for making treatment 
decisions with their physicians. Patients desperately want to 
participate in clinical trials when traditional therapies are no longer 
beneficial. The legislation which Senator Rockefeller and I introduce 
today, which has the enthusiastic support of cancer patient, physician, 
nurse, and research organizations, will empower cancer patients with 
more treatment choices in a cost-effective manner.
  I want to commend Senator John Rockefeller for his leadership in 
bringing this issue to the forefront. Senator Rockefeller has always 
been there for cancer patients, as evidenced by his landmark 1993 
legislation which provided Medicare coverage of anticancer drugs. We've 
worked together on cancer issues on several occasions over the years, 
and it's always a pleasure to work with him.
  Mr. President, our legislation would provide cancer patients who are 
Medicare participants with an additional choice at a time when a 
clinical trial may be their best, or only, hope for survival. I 
therefore urge my colleagues to cosponsor the Medicare Cancer Clinical 
Trial Program Coverage Act of 1997.

                          ____________________