[Congressional Record Volume 143, Number 87 (Friday, June 20, 1997)]
[Senate]
[Pages S6041-S6044]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. SPECTER (for himself and Mr. Santorum):
  S. 943. A bill to amend title 49, United States Code, to clarify the 
application of the act popularly known as the ``Death on the High Seas 
Act'' to aviation accidents; to the Committee on Commerce, Science, and 
Transportation.


                   DEATH ON THE HIGH SEAS REFORM ACT

  Mr. SPECTER. Mr. President, I have sought recognition today to 
introduce legislation which will provide equitable treatment for 
families of passengers involved in international aviation disasters. I 
am very pleased that my colleague, Senator Santorum, is joining me as 
an original cosponsor of this bill. Companion legislation is being 
introduced in the House of Representatives by Congressman Joe McDade 
and 10 other members of the Pennsylvania congressional delegation.
  As my colleagues know, the devastating crash of Trans World Airlines 
flight 800 on July 17, 1996 took the lives of 230 individuals. Perhaps 
the community hardest hit by this tragedy was Montoursville, PA, which 
lost 16 students and 5 adult chaperones from Montoursville High School 
who were participating in a long-awaited French Club trip to France.
  It has been brought to my attention by constituents who include 
parents of the Montoursville children lost on TWA 800 that their 
ability to seek redress in court is hampered by a 1920 shipping law 
known as the Death on the High Seas Act, which was originally intended 
to cover the widows of seafarers, not the relatives of jumbo-jet 
passengers embarking on international air travel.
  Under the Warsaw Convention of 1929, airlines do not have to pay more 
than $75,000 to families of passengers who died on an international 
flight. However, domestic air crashes are covered by U.S. law, which 
allow for greater damages if negligent conduct is proven in court.
  The Warsaw Convention limit on liability can be waived if the 
passengers' families show that there was intentional misconduct which 
led to the crash. This is where the Death on the High Seas Act comes 
into play. This law states that where the death of a person is caused 
by wrongful act, neglect, or default occurring on the high seas more 
than 1 marine league which is 3 miles from U.S. shores, a personal 
representative of a decedent can sue for pecuniary loss sustained by 
the decedent's wife, child, husband, parent, or dependent relative. The 
act, however, does not allow families of the victims of TWA 800 or 
other aviation incidents to obtain other types of damages, such as 
recovery for loss of society or punitive damages, no matter how great 
the wrongful act or neglect by an airline or airplane manufacturer.

  My legislation would amend Federal law to provide that the Death on 
the High Seas Act shall not affect any remedy existing at common law or 
under State law with respect to any injury or death arising out of an 
aviation incident occurring after January 1, 1995. In effect, it would 
clarify that Federal aviation law does not limit remedies in the same 
manner as maritime law, and permits international flights to be 
governed by the same laws as domestic flights.
  My legislation is not about blaming an airline or airplane 
manufacturer. It is not about multimillion dollar damage awards. It is 
about ensuring access to justice and clarifying the rights of families 
of victims of plane crashes such as TWA 800. I am open to exploring 
with my colleagues the possibility of expanding the retroactive relief 
provided in this legislation, bearing in mind that many of the 
plaintiffs in cases arising out of previous airplane disasters, such as 
the Korean Air Lines 007 incident in 1983, have agreed to out-of-court 
settlements.
  The need for this legislation is suggested by the most recent Supreme 
Court decision on this issue, Zicherman v. Korean Airlines, 116 S. Ct. 
629 (1996), in which a unanimous Court held that the Death on the High 
Seas Act of 1920 applies to determine damages in airline accidents that 
occur more than 3 miles from shore. By contrast, the Court has ruled 
that State tort law applies to determine damages in accidents that 
occur in waters 3 miles or less from our shores. Yamaha v. Calhoun, 
(1996 WL 5518)
  I believe it is inequitable to make such a distinction at the 3 mile 
limit in civil aviation cases where the underlying statute predates 
international air travel. I would note that the Gore Commission on 
Aviation Safety and Security noted in its final report this February 
that ``certain statutes and international treaties, established over 50 
years ago, historically have not provided equitable treatment for 
families of passengers involved in international aviation disasters. 
Specifically, the Death on the High Seas Act of 1920 and the Warsaw 
Convention of 1929, although designed to aid families of victims of 
maritime and aviation disasters, have inhibited the ability of family 
members of international aviation disasters from obtaining fair 
compensation.''

  I would further note that in an October 1996 brief filed at the 
Department of Transportation by the Air Transport Association, the 
trade association of U.S. airlines, there is an acknowledgment that the 
Supreme Court in Zicherman did not apparently consider 49 U.S.C. 40120 
(a) and (c), which preserve the application of State and common law 
remedies in tort cases and also prohibit the application of Federal 
shipping laws to aviation. My legislation amends 49 U.S.C. 40120(c) to 
clarify that nothing in the Death on the High Seas Act restricts the 
availability of remedies in suits arising out of aviation disasters.
  At a time when so many Americans live, work, and travel abroad, 
taking part in the global economy or seeing the cultural riches of 
foreign lands, they and their families should know that the American 
civil justice system will be accessible to the fullest extent if the 
unthinkable occurs.
  I urge my colleagues to support this legislation and look forward to 
working with them to ensure its ultimate enactment during the 105th 
Congress.
  Mr. President, I ask unanimous consent that the bill be printed in 
the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 943

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

     SECTION 1. DEATH ON THE HIGH SEAS ACT.

       Section 40120(c) of title 49, United States Code, is 
     amended to read as follows:
       ``(c) Additional Remedies.--
       ``(1) In general.--Nothing in this part or the Act entitled 
     `An Act relating to the maintenance of actions for death on 
     the high seas and other navigable waters' approved March 30, 
     1920 (46 U.S.C. App. 761 et seq.), popularly known as the 
     `Death on the High Seas Act', shall, with respect to any 
     injury or death arising out of any covered aviation incident, 
     affect any remedy--
       ``(A) under common law; or
       ``(B) under State law.
       ``(2) Additional remedies.--Any remedy provided for under 
     this part or the Act referred to in paragraph (1) for an 
     injury or death arising out of any covered aviation incident 
     shall be in addition to any of the remedies described in 
     subparagraphs (A) and (B) of paragraph (1).

[[Page S6042]]

       ``(3) Covered aviation incident defined.--In this 
     subsection, the term `covered aviation incident' means an 
     aviation disaster occurring on or after January 1, 1995.''.
                                 ______
                                 
      By Mr. D'AMATO:
  S. 944. A bill to require the Secretary of Housing and Urban 
Development to establish procedures for requesting waivers on behalf of 
qualified international medical graduates of the 2-year foreign 
residency requirement; to the Committee on the Judiciary.


              THE COMMUNITY HEALTH CARE ACCESS ACT OF 1997

 Mr. D'AMATO. Mr. President, I introduce the Community Health 
Care Access Act of 1997. This act will help ensure that the residents 
of our inner-city and rural areas, in New York and across the Nation, 
will have increased access to affordable health care. This legislation 
will establish a procedure within the Department of Housing and Urban 
Development [HUD] for foreign medical students, who are granted 
temporary residency status in order to complete their medical 
education, to retain their legal status in exchange for practicing in 
areas with serious physician shortages.
  Mr. President, throughout my home State of New York, there are 
numerous inner-city and rural communities which face a real crisis in 
the availability of qualified physicians. Too often, these communities 
face enormous difficulty attracting physicians to help serve the needs 
of their residents. Physicians are desperately needed to help cope with 
the growing incidence of drug-resistant tuberculosis, HIV, and other 
infectious diseases, as well as other critical health care needs such 
as pre-natal and neo-natal care.
  The act I am introducing today will help address this crisis by 
requiring the Secretary of the Department of Housing and Urban 
Development to request a J-1 visa waiver for any qualified medical 
professional who agrees to practice in an underserved area. This bill 
will allow hundreds of qualified doctors who are willing and able to 
serve in these communities to partner with existing health care 
facilities in order to serve needy populations who lack access to 
affordable health care.
  This legislation will help hospitals which are located in areas which 
are designated by the Department of Health and Human Services [HHS] as 
``Health Professional Shortage Areas'' to draw upon a pool of doctors 
who are among the best and the brightest in the world. Currently, there 
is a severe shortage of U.S. medical residents who are willing to serve 
in these areas. These urban and rural areas often have large uninsured 
populations with a variety of critical unmet health needs.
  In a nation with the greatest health care system in the world, there 
exist communities which are unfairly denied access to affordable 
quality health care. This disparity can be seen both in isolated rural 
areas and in the high-impact urban cores of some of our largest cities. 
Too often, the members of these communities have been left out of the 
American dream. It is intolerable that certain parts of many American 
cities are experiencing higher infant mortality rates than many third-
world countries.
  The costs of providing health care increase as hospitals struggle to 
attract qualified physicians. As costs rise, the unmet health care 
needs of local residents are exacerbated. Thus, the supply shortage of 
qualified physicians creates a vicious cycle in which local residents 
are trapped.
  My legislation will help break this cycle by increasing the 
availability of doctors in underserved areas while reducing health care 
costs.

  Let me briefly provide some background information. Under the J-1 
visa program, foreign medical students are temporarily admitted to the 
United States in order to complete their medical education and clinical 
training. Upon completion of their education, these students are 
required to leave the United States for a minimum of 2 years before 
they can become eligible for an extension of their legal residency 
status. However, current law provides an exception to this 2-year 
foreign residency requirement if the medical graduate agrees to 
practice in a designated ``Health Professional Shortage Area.''
  Congress reaffirmed its commitment to the J-1 program, as well as to 
the waiver of the 2-year foreign residency requirement for 
international medical graduates who agree to practice in underserved 
areas, when it passed the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996--Public Law 104-208. This Act was signed 
into law on September 30, 1996.
  Mr. President, in December 1996, the General Accounting Office [GAO] 
released a report assessing the J-1 visa waiver program. This report, 
entitled ``Foreign Physicians: Exchange Visitor Program Becoming Major 
Route to Practicing in U.S. Underserved Areas'' noted the growing use 
of the visa waiver process and made several recommendations for 
improvement.
  In conjunction with the reforms enacted last year as part of the 
Immigration Reform Act, the legislation I introduce today will 
effectively implement several of the recommendations made by the GAO. 
As noted in the report, last year's Immigration Reform Act required 
Federal agencies to utilize the same criteria for approval that 
previously applied to State health departments seeking such waivers. 
These new safeguards required physicians to: First, agree to work for 
at least 3 years for the health facility named in the application; 
second, work in an area designated by the Secretary of HHS as having a 
shortage of health care professionals; third, commence work within 90 
days of receipt of the waiver; and fourth, maintain a nonimmigrant 
status until the completion of the 3-year commitment term. In addition, 
physicians who fail to comply with the terms of their agreements would 
face a termination of their residency status and a loss of eligibility 
to apply for legal immigrant status in the future.
  This legislation would further improve compliance with the waiver 
requirements. This act will address the GAO report's finding that 
Federal agencies need to improve coordination in granting waivers. The 
act requires HUD to report to HHS on the number and location of 
physicians requesting waivers. I fully expect the Department of Health 
and Human Services to utilize this information in its annual 
designations of physician underserved areas. In addition, the 
legislation would require the sponsoring hospitals to provide HUD with 
periodic notices as to the compliance of physicians with the terms of 
the waiver agreements. Hospitals will also be required to provide HUD 
with immediate notice of the termination or cessation of compliance 
with these terms.
  The addition of these reforms will ensure the effective continuation 
of this vital program. The GAO noted that, as of January 1, 1996, there 
were approximately 1,374 physicians admitted to practice in underserved 
areas through the J-1 visa waiver program. These physicians served in 
49 States and the District of Columbia. According to a survey conducted 
by the General Accounting Office, approximately 40 percent of these 
physicians served in nonprofit community or migrant health care 
centers. Almost all of these physicians were practicing in primary care 
specialties. More than half were practicing in internal medicine. The 
other major specialties were pediatrics and family practice.

  Mr. President, it is important to note the outstanding caliber and 
the unique qualifications of the doctors participating in this program. 
In order to receive a J-1 visa, many of the participants were accepted 
into medical universities and world-renowned teaching hospitals with 
rigorous acceptance standards. In some cases, the admitted physicians 
are often specifically recruited by particular health facilities on the 
basis of their superior foreign language skills and cultural 
familiarity. For instance, the GAO cited a migrant health center in 
eastern Washington which actively recruited native-Spanish speakers for 
its program.
  HUD plays a critical role in the reduction of health care costs. The 
agency operates a number of programs which benefit hospitals, nursing 
homes, and other health care organizations. The role played by HUD's 
hospital insurance program, for instance, is absolutely essential for 
many health care institutions in obtaining private market financing for 
hospital construction, renovation, and modernization. The credit 
enhancement provided by this program results in a tangible reduction in 
health care costs at little or no cost to the taxpayer.
  I believe it is essential for Congress to continue to act 
expeditiously to address the valid concerns raised by the

[[Page S6043]]

GAO. At the same time, we must remain cognizant of the basic soundness 
of the waiver program and strive to improve and reform it. The waiver 
process has made basic health care available to many communities with 
desperate needs.
  Mr. President, in conclusion I would emphasize the hardships which 
face many of our Nation's urban and rural residents as a result of the 
crisis in health care availability. The J-1 visa waiver program is an 
important tool to address these needs. The reforms to the current 
waiver process are also critical to ensuring that any noncompliance 
within the program is eradicated. I urge my colleagues to support the 
Community Health Care Access Act of 1997 in order to ensure that the 
waiver program remains a viable option in addressing our country's 
local health care needs for years to come.
  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. 944

       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 ``Community Health Care Access 
     Act of 1997''.

     SEC. 2. PROCEDURES.

       (a) Establishment.--Pursuant to section 212(e) and section 
     214(l) of the Immigration and Nationality Act (8 U.S.C. 
     1182(e) and 8 U.S.C. 1184(l)), the Secretary shall establish 
     procedures under which an individual may apply to the 
     Secretary to request the Director of the United States 
     Information Agency to recommend a waiver of the foreign 
     residence requirement under section 212(e) of the Immigration 
     and Nationality Act (8 U.S.C. 1182(e)) for that individual.
       (b) Requirements.--The procedures under subsection (a) 
     shall require the Secretary to issue a request on behalf of 
     an applicant whenever the applicant--
       (1) meets the requirements under section 214(l) (8 U.S.C. 
     1184(l)) of the Immigration and Nationality Act; and
       (2) meets such other terms and conditions established by 
     the Secretary, which may include a requirement for the 
     applicant to include as part of the waiver application a 
     written agreement on the part of the health facility or 
     health care organization named in the application to provide 
     the Secretary with--
       (A) periodic notification of the applicant's continued 
     employment; and
       (B) immediate notification of a failure on the part of the 
     applicant to comply with the terms of the contract between 
     the applicant and the health facility or health care 
     organization.

     SEC. 3. HHS REPORTING REQUIREMENT.

       At least biannually, the Secretary shall submit a report to 
     the Secretary of Health and Human Services setting forth the 
     number of requests issued under section 2 and identifying the 
     geographic areas in which aliens serve under those requests.

     SEC. 4. IMPLEMENTATION.

       Not later than 90 days after the date of enactment of this 
     Act, the Secretary shall issue final regulations to implement 
     the provisions of the Act. Such regulations shall be issued 
     only after notice and opportunity for public comment pursuant 
     to the provisions of section 553 of title 5, United States 
     Code, regarding notice or opportunity for comment.

     SEC. 5. DEFINITIONS.

       In this Act:
       (1) Applicant.--The term ``applicant'' means an alien as 
     described in clause (iii) of section 212(e) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(e)).
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of the Department of Housing and Urban Development.
                                 ______
                                 
      By Mr. GRASSLEY (for himself and Mr. Breaux):
  S. 948. A bill to amend the Older Americans Act of 1965 to improve 
the provisions relating to pension rights demonstration projects; to 
the Committee on Labor and Human Resources.


           The Pension Assistance and Counseling Act of 1997

  Mr. GRASSLEY. Mr. President, today I am introducing legislation to 
achieve one of my primary objectives as chairman of the Special 
Committee on Aging: to help workers and retirees achieve a secure 
retirement.
  As with any discussion about retirement planning, it is the norm to 
point to the ``three-legged stool'' of retirement--Social Security, 
personal savings, and a pension. Unfortunately, the legs of the stool 
may be getting warped.
  Just this week, the Aging Committee confronted an issue that is 
affecting hundreds of thousands of workers and retirees--miscalculation 
of their hard-earned pensions. This hearing was intended to raise 
consumer awareness about the need to be proactive about policing your 
pension. As one of our witnesses said, ``never assume your pension is 
error-free.''
  While it is impossible to know how many pension payments and lump sum 
distributions may be miscalculated, we know the number is on the rise. 
An audit conducted by the Pension Benefit Guaranty Corporation--focused 
on plans that were voluntarily terminated--showed that the number of 
people underpaid has increased from 2.8 to 8.2 percent. Anecdotal 
evidence suggests that the number of people receiving lump sum 
distributions who end up getting shortchanged could be 15 to 20 
percent. Those numbers are very disturbing. The practical impact is 
that retirees, and young and old workers alike, are losing dollars that 
they have earned.
  Workers and retirees need to be aware that they are at risk. They can 
help themselves by knowing how their benefits are calculated, that they 
should keep all the documents their employer gives them, and to start 
asking questions at a young age--don't wait until the eve of 
retirement.
  Unfortunately, policing your pension is not easy. Employers are 
trying to do a good job but they are confronted with one of the most 
complex regulatory schemes in the Federal Government. Pensions operate 
in a complex universe of laws, rules, and regulations. Over the last 20 
years, 16 laws have been enacted that require employers to amend their 
pension plans and then notify their workers of changes. It is not a 
simple task. If employers have problems trying to comply with Federal 
requirements, it is understandable that workers and retirees are having 
trouble getting a grasp on how their pension works.

  Trying to educate yourself about pensions implies that someone is out 
there providing information to those who need it. That is where the 
legislation that I am introducing today comes in. People who are 
concerned about their pensions--whether it's an unintentional mistake 
or outright fraud--often don't have anywhere to go for expert advice.
  Fortunately, there is an answer. Already authorized by the Older 
Americans Act, seven pension counseling projects have assisted 
thousands of people around this country with their pension problems. 
These projects provide information and counseling to retirees, and 
young and old workers in a very cost-effective manner.
  Each project received $75,000 of Federal assistance over a 17-month 
period. As is normal for other programs under the Older Americans Act, 
these dollars were supplemented by money raised from private sources. 
During their operation, the projects recovered nearly $2 million in 
pension benefits and payments. That is a return of $4 for every $1 
spent.
  My legislation contains two key provisions: First, it updates the 
Older Americans Act to encourage the creation of more pension 
counseling projects. Seven projects are not enough to reach the 80 
million people who are covered by pensions in this country. Hopefully, 
more counseling projects can be established to provide more regionally 
comprehensive assistance.
  Second, the legislation would create an 800 number that people could 
call for one-stop advice on where to get assistance. Jurisdiction over 
pension issues is spread across three government agencies--none of 
which are focused on helping individuals with individual problems--
especially if the problem does not seem to be a clear fiduciary breach 
or indicate that there may be criminal wrongdoing. An 800 number 
linking people to assistance will help close that gap.
  I look forward to working with the Labor Subcommittee on Aging, the 
entity with jurisdiction over the Older Americans Act--to get these 
changes enacted as part of the reauthorization this year.
  It is also crucial to emphasize the need for pension counseling 
projects with congressional appropriators. The projects have not 
received earmarked funding since the end of fiscal year 1996 and we 
simply cannot afford to lose the expertise that has been developed over 
the last 3\1/2\ years--especially in light of the growing concern over 
pension security.

[[Page S6044]]

  My committee has been focusing on preparing for the retirement of the 
baby boom generation--it can be anticipated that the need for 
assistance with pensions will increase as that generation begins to 
retire. Social Security, by itself, was never intended to be the 
primary source of income for a retiree. A pension from an employer can 
prove to be a determining factor in whether retirees are able to 
maintain a decent standard of living. If there is no one to go for 
assistance to get all of the pension they have earned, their chances at 
a secure retirement are gloomy indeed.

                          ____________________