[Congressional Record Volume 143, Number 111 (Thursday, July 31, 1997)]
[Senate]
[Pages S8582-S8590]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



      By Mr. HATCH (for himself, Mr. Leahy, Mr. Thompson, and Mr. 
        Kohl):
  S. 1121. A bill to amend Title 17 to implement the WIPO Copyright 
Treaty and the WIPO Performances and Phonograms Treaty; to the 
Committee on the Judiciary.


the wipo copyright and performance and phonograms treaty implementation 
                              act of 1997

  Mr. HATCH. Mr. President, today I am introducing legislation proposed 
by the Clinton administration to implement two important treaties that 
were adopted last December by the World Intellectual Property 
Organization (WIPO). The distinguished Ranking Member of the Judiciary 
Committee, Sen. Leahy, the distinguished Senator for Tennessee, Sen. 
Thompson, and the distinguished Senator from Wisconsin, Sen. Kohl, join 
me as original cosponsors. I strongly support adoption of the treaties, 
and I am introducing this bill on behalf of the Administration as an 
essential step in that process. I believe that the Administration's 
bill provides an excellent starting point for the debate on exactly 
what must be changed in U.S. law in order to comply with the treaties.
  The WIPO Copyright Treaty and the WIPO performances and Phonograms

[[Page S8583]]

Treaty--completed after years of intense lobbying by the United States 
government--will update international copyright law for the digital age 
and ensure the protection of American creative products abroad. I want 
to commend Secretary of Commerce Bill Daley, Commissioner of Patents 
and Trademarks Bruce Lehman, and their staffs for their efforts in 
moving this important issue forward, and I welcome the opportunity to 
work with them during the legislative process.
  The United States leads the world in the production of creative works 
and high-technology products--including software, movies, recordings, 
music, books, video games, and information. Copyright industries 
represent nearly 6% of the U.S. gross domestic product, and nearly 5% 
of U.S. employment. Yet American companies lose $18-20 billion every 
year due to international piracy of copyrighted works. The film 
industry alone estimates its annual losses due to counterfeiting in 
excess of $2.3 billion, even though full-length motion pictures are not 
yet available on the Internet. The recording industry estimates that it 
looses more than $1.2 billion each year due to piracy, with seizures of 
bootleg CDS up some 1,300 percent in 1995. These figures will only 
continue to grow with the recent technological developments that permit 
creative products to be pirated and distributed globally with the touch 
of a button, significantly weakening international protection for the 
copyrighted works that are such a critical part of this country's 
economic backbone and costing the U.S. economy exports and jobs.
  The WIPO treaties will raise the minimum standards for copyright 
protection worldwide, providing the U.S. with the tools it needs to 
combat international piracy. But the treaties will be meaningless 
unless they are ratified by a large number of countries. It is 
therefore up to the United States to demonstrate leadership on this 
issue by ratifying and implementing the treaties promptly. Swift U.S. 
action will encourage global implementation of the WIPO treaties, and 
will signal U.S. determination to curb the threat that international 
piracy poses to U.S. jobs and the economy.
  This bill takes the approach that the substantive protections in U.S. 
copyright law already meet the standards of the new WIPO treaties, and 
therefore very few changes to U.S. law are necessary in order to 
implement the treaties. In addition to minimal technical amendments, 
the treaties require signatory countries to provide legal protections 
against the circumvention of certain technologies that copyright owners 
use to protect their works and to guard against the alteration or 
falsification of identifying data known as copyright management 
information (CMI).
  This ``minimalist'' bill is the product of much hard work by the 
Administration, and represents many months of negotiations among 
interested parties, including software companies, computer 
manufacturers, and the copyright community. This bill is a compromise; 
it does not represent any group's ``wish list'' for WIPO implementing 
legislation. The Administration has tried to craft a bill that 
addresses only those issues required by the treaties without altering 
the substantive protections and exceptions provided under U.S. 
copyright law or injecting extraneous issues into the treaty process. 
The Administration has tried to preserve the delicate balance that U.S. 
law already strikes between copyright owners and users, since the WIPO 
treaties were not intended to upset that balance.
  I urge my colleagues to give this legislation serious consideration. 
The Judiciary Committee will begin hearings on this bill shortly. I 
would like to see the treaties go into effect this year, and I will try 
hard to meet this goal. However, the late date on which the 
Administration has submitted the legislation may render this goal 
unachievable.
  In any event, we must act promptly to ratify and implement the WIPO 
treaties in order to demonstrate leadership on international copyright 
protection, so that the WIPO treaties can be implemented globally and 
so that further theft of our nation's most valuable creative products 
may be prevented.
  Mr. President, I ask unanimous consent that a copy 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. 1121

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``WIPO Copyright and 
     Performances and Phonograms Treaty Implementation Act of 
     1997''.

     SEC. 2. TECHNICAL AMENDMENTS.

       (a) Section 101 of Title 17, United States Code is 
     amended--
       (1) by deleting the definition of ``Berne Convention 
     work'';
       (2) in the definition of ``The `country of origin; of a 
     Berne Convention work,'' by deleting ``The `country of 
     origin; of a Berne Convention work,'', capitalizing the first 
     letter of the word ``for'', deleting ``is the United States'' 
     after ``For purposes of section 411,'', and inserting ``a 
     work is a `United States work' only'' after ``For purposes of 
     section 411,'',
       (3) in subsection (1)(B) of the definition of ``The 
     `country' of a Berne Convention work'', by inserting ``treaty 
     party of parties'' and deleting ``nation of nations adhering 
     to the Berne Convention'';
       (4) in subsection (1)(C) of the definition of ``The 
     `country of origin' of a Berne Convention work'', by 
     inserting ``is not a treaty party'' and deleting ``does not 
     adhere to the Berne Convention'';
       (5) in subsection (1)(D) of the definition of ``The 
     `country of origin' of a Berne Convention work'', by 
     inserting ``is not a treaty party'' and deleting ``does not 
     adhere to the Berne Convention'';
       (6) in section (3) of the definition of ``The `country of 
     origin' of a Berne Convention work'', by deleting ``For the 
     purposes of section 411, the `country of origin' of any other 
     Berne Convention work is not the United States'';
       (7) after the definition for ``fixed'', by inserting ``The 
     `Gevena Phonograms Convention' is the Convention for the 
     Protection of Producers of Phonograms Against Unauthorized 
     Duplication of Their Phonograms, concluded at Geneva, 
     Switzerland on October 29, 1971.'';
       (8) after the definition for ``including''; by inserting 
     ``An `international agreement' is--
       ``(1) the Universal Copyright Convention;
       ``(2) the Geneva Phonograms Convention;
       ``(3) the Berne Convention;
       ``(4) the WTO Agreement;
       ``(5) the WIPO Copyright Treaty;
       ``(6) the WIPO Performances and Phonograms Treaty; and
       ``(7) any other copyright treaty to which the United States 
     is a party,'';
       (9) after the definition for ``transmit'', by inserting ``A 
     `treaty party' is a country or intergovernmental organization 
     other than the United States that is a party to an 
     international agreement.'';
       (10) after the definition for ``widow'', by inserting ``The 
     `WIPO Copyright Treaty' is the WIPO Copyright Treaty 
     concluded at Geneva, Switzerland, on December 20, 1996.'';
       (11) after the definition for ``The `WIPO Copyright Treaty' 
     '', by inserting ``The `WIPO Performances and Phonograms 
     Treaty' is the WIPO Performances and Phonograms Treaty 
     concluded at Geneva, Switzerland on December 20, 1996.'', and
       (2) by inserting, after the definition for ``work for 
     hire'', ``The `WTO Agreement' is the Agreement Establishing 
     the World Trade Organization entered into on April 15, 1994. 
     The terms ``WTO Agreement'' and ``WTO member country'' have 
     the meanings given those terms in paragraph (9) and (10) 
     respectively of section 2 of the Uruguay Round Agreements 
     Act.''
       (b) Section 104 of Title 17, United States Code is 
     amended--
       (1) in section (b)(1) by deleting ``foreign nation that is 
     a party to a copyright treaty to which the United States is 
     also a party'' and inserting ``treaty party'';
       (2) in section (b)(2) by deleting ``party to the Universal 
     Copyright Convention'' and inserting ``treaty party'';
       (3) by renumbering the present section (b)(3) as (b)(5) and 
     moving it to its proper sequential location and inserting a 
     new section (b)(3) and to read:
       ``(3) the work is a sound recording that was first fixed in 
     a treaty party; or ``;
       (4) in section (b)(4) by deleting ``Berne Convention work'' 
     and inserting ``pictorial, graphic or sculptural work that is 
     incorporated in a building or other structure, or an 
     architectural work that is embodied in a building and the 
     building or structure is located in the United States or a 
     treaty party'';
       (5) by renumbering present section (b)(5) as (b)(6),
       (6) by inserting a new section (b)(7) to read:

       ``For purposes of paragraph (2), a work that is published 
     in the United States or a treaty party within thirty days of 
     publication in foreign nation that is not a treaty party 
     shall be considered first published in the United States or 
     such treaty party as the case may be.'';

     and
       (7) by inserting a new section (d) to read:
       ``(d) Effect of Phonograms Treaties.--Notwithstanding the 
     provisions of subsection (b), no works other than sound 
     recordings shall be eligible for protection under this

[[Page S8584]]

     title solely by virtue of the adherence of the United States 
     to the Geneva Phonograms Convention or the WIPO Performances 
     and Phonograms Treaty.''.
       (c) Section 104A(h) of Title 17, United States Code, is 
     amended--
       (1) in paragraph (1), by deleting ``(A) a nation adhering 
     to the Berne Convention or a WTO member country, or (B) 
     subject to a Presidential proclamation under subsection 
     (g),'' and inserting
       ``(A) a nation adhering to the Berne Convention,
       ``(B) a WTO member country;
       ``(C) a national adhering to the WIPO Copyright Treaty;
       ``(D) a nation adhering to the WIPO Performance and 
     Phonograms Treaty, or
       ``(E) subject to a Presidential proclamation under 
     subsection (g)'';
       (2) paragraph (3) is amended to read as follows--
       ``(3) the term ``eligible country'' means a nation, other 
     than the United States that--
       ``(A) becomes a WTO member country after the date of 
     enactment of the Uruguay Round Agreements Act;
       ``(B) on the date of enactment is, or after the date of 
     enactment becomes, a nation adhering to the Berne Convention;
       ``(C) adheres to the WIPO Copyright Treaty;
       ``(D) adheres to the WIPO Performances and Phonograms 
     Treaty; or
       ``(E) after such date of enactment becomes subject to a 
     proclamation under subsection (g)'';
       (3) in paragraph (6)(C)(iii), by deleting ``and'' after 
     ``eligibility'';
       (4) at the end of paragraph (6)(D), by deleting the period 
     and inserting ``; and'';
       (5) by adding the following new paragraph (6)(E):
       ``(E) if the source country for the work is an eligible 
     country solely by virtue of its adherence to the WIPO 
     Performances and Phonograms Treaty, is a sound recording'',
       (6) in paragraph (8)(B)(i), by inserting ``of which'' 
     before ``the majority'' and striking ``of eligible 
     countries''; and
       (7) by deleting paragraph (9).
       (d) Section 411 of Title 17, United States Code, is 
     amended--
       (1) in subsection (a), by deleting ``actions for 
     infringement of copyright in Berne Convention works whose 
     country of origin is not the United States and''; and
       (2) in subsection (a), by inserting ``United States'' after 
     ``no action for infringement of the copyright in any''.
       (e) Section 507(a) of title 17, United States Code, is 
     amended by adding at the beginning, ``Except as expressly 
     provided elsewhere in this title.

     SEC. 3. COPYRIGHT PROTECTION SYSTEMS AND COPYRIGHT MANAGEMENT 
                   INFORMATION.

       Title 17, United States code, is amended by adding the 
     following new chapter: ``Chapter 12.--COPYRIGHT PROTECTION 
     AND MANAGEMENT SYSTEMS
``Sec.
``1201. Circumvention of Copyright Protection Systems
``1202. Integrity of Copyright Management Information
``1203. Civil Remedies
``1204. Criminal Offenses and Penalties

     ``Sec. 1201. Circumvention of Copyright Protection Systems

       ``(a)(1) No person shall circumvent a technological 
     protection measure that effectively controls access to a work 
     protected under title 17.
       ``(2) No person shall manufacture, import, offer to the 
     public, provide or otherwise traffic in any technology, 
     product, service, device, component, or part thereof that
       ``(A) is primarily designed or produced for the purpose of 
     circumventing a technological protection measure that 
     effectively controls access to a work protected under Title 
     17,
       ``(B) has only limited commercially significant purpose or 
     use other than to circumvent a technological protection 
     measure that effectively controls access to a work protected 
     under Title 17, or
       ``(C) is marketed by that person or another acting in 
     concert with that person for use in circumventing a 
     technological protection measure that effectively controls 
     access to a work protected under Title 17.
       ``(3) As used in this subsection,
       ``(A) `circumvent a technological protection measure' means 
     to descramble a scrambled work, to decrypt an encrypted work, 
     or otherwise to avoid, bypass, remove, deactivate, or impair 
     a technological protection measure, without the authority of 
     the copyright owner.
       ``(B) a technological protection measure `effectively 
     controls access to a work' if the measure, in the ordinary 
     course of its operation, requires the application of 
     information, or a process or a treatment, with the authority 
     of the copyright owner, to gain access to the work.
       ``(b)(1) No person shall manufacture, import, offer to the 
     public, provide or otherwise traffic in any technology, 
     product, service, device, component, or part thereof that
       ``(A) is primarily designed or produced for the purpose of 
     circumventing protection afforded by a technological 
     protection measure that effectively protects a right of a 
     copyright owner under Title 17 in a work or a portion 
     thereof,
       ``(B) has only limited commercially significant purpose or 
     use other than to circumvent protection afforded by a 
     technological protection measure that effectively protects a 
     right of a copyright owner under Title 17 in a work or a 
     portion thereof, or
       ``(C) is marketed by that person or another acting in 
     concert with that person for use in circumventing protection 
     afforded by a technological protection measure that 
     effectively protects a right of a copyright owner under Title 
     17 in a work or a portion thereof.
       ``(2) As used in this subsection,
       ``(A) `circumvent protection afforded by a technological 
     protection measure' means avoiding, bypassing removing, 
     deactivating, or otherwise impairing a technological 
     protection measure;
       ``(B) a technological protection measure `effectively 
     protects a right of a copyright owner under Title 17' if the 
     measure, in the ordinary course of its operation, prevents, 
     restricts, or otherwise limits the exercise of a right of a 
     copyright owner under Title 17.
       ``(c) The importation into the United States, the sale for 
     importation, or the sale within the United States after 
     importation by the owner, importer or consignee of any 
     technology, product, service, device, component, or part 
     thereof as described in this section shall be actionable 
     under section 1337 of Title 19.
       ``(d) Nothing in this section shall affect rights, 
     remedies, limitations, or defenses to copyright infringement, 
     including fair use, under Title 17.
       ``(e) This section does not prohibit any lawfully 
     authorized investigative, protective, or intelligence 
     activity of a law enforcement agency of the United States, a 
     State, or a political subdivision of a State, or of an 
     intelligence agency of the United States.

     ``Sec. 1202. Integrity of Copyright Management Information

       ``(a) False Copyright Management Information.--No person 
     shall knowingly--
       (1) provide copyright management information that is false, 
     or
       (2) distribute or import for distribution copyright 
     management information that is false, with the intent to 
     induce, enable, facilitate or conceal an infringement of any 
     right under Title 17.
       ``(b) Removal or Alteration of Copyright Management 
     Information.--No person shall, without the authority of the 
     copyright owner or the law--
       ``(1) intentionally remove or alter any copyright 
     management information,
       ``(2) distribute or import for distribution copyright 
     management information knowing that the copyright management 
     information has been removed or altered without authority of 
     the copyright owner or the law, or
       ``(3) distribute, import for distribution, or publicly 
     perform works, copies of works, or phonorecords knowing that 
     copyright management information has been removed or altered 
     without authority of the copyright owner or the law,

     knowing, or, with respect to civil remedies under section 
     1203, having reasonable grounds to know, that it will induce, 
     enable, facilitate or conceal an infringement of any right 
     under Title 17.
       ``(c) Definition.--As used in this chapter, `copyright 
     management information; means the following information 
     conveyed in connection with copies or phonorecords of a work 
     or performances or displays of a work, including in digital 
     form:
       ``(1) The title and other information identifying the work, 
     including the information set forth on a notice of copyright;
       ``(2) The name of, and other identifying information about, 
     the author of a work;
       ``(3) The name of, and other identifying information about, 
     the copyright owner of the work, including the information 
     set forth in a notice of copyright;
       ``(4) Terms and conditions for use of the work;
       ``(5) Identifying numbers or symbols referring to such 
     information or links to such information; or
       ``(6) Such other information as the Register of Copyrights 
     may prescribe by regulation, except that the Register of 
     Copyrights may not require the provision of any information 
     concerning the user of a copyrighted work.''
       ``(d) This section does not prohibit any lawfully 
     authorized investigative, protective, or intelligence 
     activity of a law enforcement agency of the United States, a 
     State, or a political subdivision of a State, or of an 
     intelligence agency of the United States.

     ``Sec. 1203. Civil Remedies

       ``(a) Civil Action.--Any person injured by a violation of 
     section 1201 or 1202 may bring a civil action in an 
     appropriate United States district court for such violation.
       ``(b) Powers of the Court.--In an action brought under 
     subsection (a), the court--
       ``(1) may grant temporary and permanent injunctions on such 
     terms as it deems reasonable to prevent or restrain a 
     violation;
       ``(2) at any time while an action in pending, may order the 
     impounding, on such terms as it deems reasonable, of any 
     device or product that is in the custody or control of the 
     alleged violator and that the court has reasonable cause to 
     believe was involved in a violation;
       ``(3) may award damages under subsection (c);
       ``(4) in its discretion may allow the recovery of costs by 
     or against any party other than the United States or an 
     officer thereof.
       `'(5) in its discretion may award reasonable attorney's 
     fees to the prevailing party; and
       ``(6) may, as part of a final judgment or decree finding a 
     violation, order the remedial modification or the destruction 
     of any device

[[Page S8585]]

     or product involved in the violation that is in the 
     custody or control of the violator or has been impounded 
     under subsection (2).
       ``(c) Award of Damages.--
       ``(1) In general.--Except as otherwise provided in this 
     chapter, a person committing a violation of section 1201 or 
     1202 is liable for either--
       ``(A) the actual damages and any additional profits of the 
     violator, as provided by subsection (2), or
       ``(B) statutory damages, as provided by subsection (3).
       ``(2) Actual damages.--The court shall award to the 
     complaining party the actual damages suffered by the party as 
     a result of the violation, and any profits of the violator 
     that are attributable to the violation and are not taken into 
     account in computing the actual damages, if the complaining 
     party elects such damages at any time before final judgment 
     is entered.
       ``(3) Statutory damages.--
       ``(A) At any time before final judgment is entered, a 
     complaining party may elect to recover an award of statutory 
     damages for each violation of section 1201 in the sum of not 
     less than $200 or more than $2,500 per act of circumvention 
     device, product, component, offer or performance of service, 
     as the court considers just.
       ``(B) At any time before final judgment is entered, a 
     complaining party may elect to recover an award of statutory 
     damages for each violation of section 1202 in the sum of not 
     less than $2,500 or more than $25,000.
       ``(4) Repeated violations.--In any case in which the 
     injured party sustains the burden of proving, and the court 
     finds, that a person has violated section 1201 or 1202 within 
     three years after a final judgment was entered against the 
     person for another such violation, the court may increase the 
     award of damages up to triple the amount that would otherwise 
     be awarded, as the court considers just.
       ``(5) Innocent violations.--The court in its discretion may 
     reduce or remit the total award of damages in any case in 
     which the violator sustains the burden of proving, and the 
     court finds, that the violator was not aware and had no 
     reason to believe that its acts constituted a violation.

     ``Sec. 1204. Criminal Offenses and Penalties.

       ``(a) Any person who violates section 1201 or 1202 
     willfully and for purposes of commercial advantage or private 
     financial gain shall be fined not more than $500,000 or 
     imprisoned for not more than 5 years, or both for the first 
     offense and shall be fined not more than $1,000,000 or 
     imprisoned for not more than 10 years, or both for any 
     subsequent offense.''
       ``(b) Notwithstanding section 507(a) of this title, no 
     criminal proceeding shall be brought under section 1204 
     unless such proceeding is commenced within five years after 
     the cause of action arose.''

     SEC. 4. CONFORMING AMENDMENTS.

       The table of chapters for Title 17, United States Code, is 
     amended by adding at the end the following:

``12. COPYRIGHT PROTECTION AND MANAGEMENT SYSTEMS...............1201''.

     SEC. 5. EFFECTIVE DATE.

       The amendments made by this Act shall take effect on the 
     date of the enactment of this Act, except clause (5) of the 
     definition of ``international agreement'' as amended by 
     section 2(a)(8) of this Act, section 2(a)(10) of this Act, 
     clause (C) of section 104(h)(1) of Title 17 as amended by 
     section 2(c)(1) of this Act and clause (C) of section 
     104(h)(3) of Title 17 as amended by section 2(c)(2) of this 
     Act shall take effect upon entry into force of the WIPO 
     Copyright Treaty with respect to the United States, and 
     clause (6) of the definition of ``international agreement'' 
     as amended by section 2(a)(8) of this Act, section 2(a)(11) 
     of this Act, section 2(b)(7) of this Act, clause (D) of 
     section 104A(h)(1) of Title 17 as amended by section 2(c)(2) 
     of this Act, and sections 2(c)(4) and 2(c)(5) of this Act 
     shall take effect upon entry into force of the WIPO 
     Performances and Phonograms Treaty with respect to the United 
     States.

  Mr. LEAHY. Mr. President, the successful adoption by the World 
Intellectual Property Organization [WIPO] of two new copyright 
treaties--one on written material and one on sound recordings--in 
Geneva last December was appropriately lauded in the United States. The 
WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty 
will give a significant boost to the protection of intellectual 
property rights around the world, and stand to benefit important 
American creative industries--from movies, recordings, computer 
software and many other copyrighted materials that are subject to 
piracy on-line.
  According to Secretary Daley of the Department of Commerce, for the 
most part, ``the treaties largely incorporate intellectual property 
norms that are already part of U.S. law.'' What the treaties will do is 
give American owners of copyrighted material an important tool to 
protect their intellectual property in those countries that become a 
party to the treaties. With an ever-expanding global marketplace, such 
international protection is critical to protect American companies and, 
ultimately, American jobs and the U.S. economy.
  Over the past few months, I spoke and wrote to Secretary Daley urging 
him to transmit without delay the administration's proposal for 
implementing legislation. I am very pleased that earlier this week, the 
administration did so. The legislative package we received is an 
excellent start for moving forward, and I commend the administration, 
Secretary Daley and, in particular, Assistant Secretary Bruce Lehman of 
the Patent and Trademark Office for their hard work on this proposal.
  I am glad to introduce this legislation, with Senator Hatch, on 
behalf of the administration. I hope we will take this matter up for 
hearings and further deliberation and action promptly after the recess.
  In sum, this bill makes certain technical changes to conform our 
copyright laws to the treaties and substantive amendments to comply 
with two new Treaty obligations. Specifically, the treaties oblige the 
signatories to provide legal protections against circumvention of 
technological measures used by copyright owners to protect their works, 
and against violations of the integrity of copyright management 
information [CMI], which identifies a work, its author, the copyright 
owners and any information about the terms and conditions of use of the 
work. The bill adds a new chapter to U.S. copyright law to implement 
the anti-circumvention and CMI provisions, along with corresponding 
civil and criminal penalties.
  Technological developments, such as the development of the Internet 
and remote computer information data bases, are leading to important 
advancements in accessibility and affordability of art, literature, 
music, film and information and services for all Americans. As Vinton 
Cerf, the coinventor of the computer networking protocol for the 
Internet, recently stated in The New York Times:

       The Internet is now perhaps the most global and democratic 
     form of communications. No other medium can so easily render 
     outdated our traditional distinctions among localities, 
     regions and nations.

  We see opportunities to break through barriers previously facing 
those living in rural settings and those with physical disabilities. 
Democratic values can be served by making more information and services 
available.
  These methods of distribution also dramatically affect the role of 
copyright. Properly balancing copyright interests to encourage and 
reward creativity, while serving the needs of public access to works, 
can be a challenge. The public interest requires the consideration and 
balancing of such interests. In the area of creative rights that 
balance has rested on encouraging creativity by ensuring rights that 
reward it while encouraging its public performance, distribution and 
display.
  I was glad to have played a role in the development and enactment of 
the Digital Performance Right in Sound Recording Act, Public Law 104-
39. That legislation served in many respects as the precursor to the 
WIPO Treaty on performance rights adopted last December. Performance 
rights for sound recordings is an issue that has been in dispute for 
over 20 years. I was delighted in 1995 when we were finally able to 
enact a U.S. law establishing that right.
  I believe that musicians, singers and featured performers on 
recordings ought to be compensated like other creative artists for the 
public performances of works that they create and that we all enjoy. I 
wanted companies that export American music not to be disadvantaged 
internationally by the lack of U.S. recognition of such a performance 
right. Most of all, I wanted to be sure that our laws be fair to all 
parties--to performers, musicians, songwriters, music publishers, 
performing rights societies, emerging companies expanding new 
technologies, and, in particular, consumers and the public.
  I am glad to have been able to play a role in redesigning the 
performance right in sound recording law to meet these objectives. Our 
substitute, which was ultimately enacted, preserved existing rights, 
encouraged the development of new technologies, and promoted 
competition as the best protection for consumers. Working with Senator 
Thurmond, then chairman of the Antitrust Subcommittee, and with the

[[Page S8586]]

help of the Antitrust Division of the Department of Justice, we were 
able to strengthen the bill in significant regard. I was pleased to 
cosponsor the substitute and to work for its passage.
  I have also been supportive of copyright protection and 
anticircumvention legislation over the past several years and been 
working on ways to utilize copyright management information to protect 
and inform consumers.
  I anticipate that at Judiciary Committee hearings on this important 
measure, we will examine the impact of the treaties and this 
implementing legislation, both domestically and internationally, on the 
careful balance we always strive to maintain between the authors' 
interest in protection along with the public's interest in the 
accessibility of information.
  Ours is a time of unprecedented challenge to copyright protection. 
Copyright has been the engine that has traditionally converted the 
energy of artistic creativity into publicly available arts and 
entertainment. Historically, the Government's role has been to 
encourage creativity and innovation by protecting copyrights that 
create incentives for the dissemination to the public of new works and 
forms of expression. That is the tradition which I intend to continue.
  Mr. KOHL. Mr. President, along with my colleagues, Senators Hatch and 
Leahy, I rise in support in the WIPO Copyright and Performances and 
Phonograms Treaty Implementation Act of 1997. This proposal, while 
clearly not a final product, is nevertheless an important step forward 
in our ongoing battle against illegal copying of protected works--such 
as movies, books, musical recordings, and software. Let me also commend 
the administration, especially the Commerce Department and the Patent 
and Trademark Office, for their hard work in pushing for the underlying 
treaty and assembling a workable proposal to ensure the value of 
intellectual property.
  What makes this legislation so important to our economy? Consider 
that the copyright industries had over $53 billion in foreign sales in 
1995, surpassing every other export industry except automobiles and 
agriculture. Also consider that the copyright industries employ nearly 
6 million people in the United States, or about 4.8 percent of our work 
force. But despite the tremendous contribution these businesses make to 
our economy, we still lose more than $15 billion each year due to 
foreign copyright piracy, according to some estimates. That is not only 
wrong; it is unacceptable.
  Mr. President, we need to maintain our status as an international 
leader in the fight against illegal copying because many nations look 
to us for guidance in setting their own standards for copyright 
protection. And we need to show strong leadership in this area because, 
otherwise, some nations with troubling histories of copyright piracy 
will be even less likely to improve their records. This proposal moves 
us in the right direction.
  Some of my colleagues may remember back in 1991 when I introduced 
similar legislation, the Motion Picture Anti-Piracy Act, to deal with 
the problem of video bootlegging. Although today's technology is more 
advanced than in 1991, the problem of unauthorized copying remains. 
Indeed, it has in some respects grown even worse. The spread of copying 
technology worldwide, including piracy that takes place with the touch 
of a button over the Internet, begins to explain the scope of this 
problem. And because the piracy problem extends across national 
borders, the best way to address unauthorized copying is through 
international agreements that go after devices deliberately designed to 
circumvent technological protection measures.
  Mr. President, this bill generally takes the right approach. It makes 
it illegal to circumvent various copyright protection systems, it 
protects the integrity of copyright management information, and it 
provides for both civil and criminal penalties to deter potential 
violators. Some have suggested that it goes too far, while others argue 
that the bill does not go far enough. In any event, we should view this 
proposal as a point of departure rather than a final product. And we 
should make certain, as the measure moves forward, that it doesn't 
restrict products that have other beneficial uses.
  Mr. President, let me make one additional point. The bill does not 
address the issue of online service provider liability. This issue 
needs to be discussed and resolved, whether as part of this legislation 
or separately. But it shouldn't slow down the consideration of the bill 
we have before us. The WIPO Implementation Act is a significant step in 
curbing illegal copying, and I urge my colleagues to join me in 
supporting it.
                                 ______
                                 
      By Mr. KOHL (for himself, Mr. Grassley, and Mr. Reid):
  S. 1122. A bill to establish a national registry of abusive and 
criminal patient care workers and to require criminal background checks 
of patient care workers; to the Committee on Finance.


                    THE PATIENT ABUSE PREVENTION ACT

  Mr. KOHL. Mr. President, I rise to introduce the Patient Abuse 
Prevention Act, a bill to establish greater safeguards in our health 
care system for vulnerable Americans. I am pleased to be joined in 
offering this bill by Senate Committee on Aging Chairman Charles 
Grassley and Senator Harry Reid.
  One of the most difficult times for any family is when a senior or 
disabled member enters a long-term care arrangement. That family should 
not also be faced with the worry that the long-term care facility or 
its staff may pose a threat.
  Whatever health care setting a family chooses, whether institutional 
or community-based, there should be assurances that care will be 
provided by trained and compassionate professionals.
  Thankfully, that is the case in most facilities. But in a few cases--
and that is a few cases too many--a long-term care facility hires 
someone who doesn't have the best interests of the patient in mind.
  A disturbing number of cases have been reported where health care 
workers with criminal backgrounds have been cleared to work in a long-
term care facility and have abused patients in their care. If only 
greater attention was given to discovering the background of these 
applicants, the abuses may have been prevented.
  A recent report from the Nation's long-term care ombudsmen indicates 
that, in 29 States surveyed, 7,043 cases of abuse, gross neglect or 
exploitation occurred in nursing homes and board and care facilities.
  According to a random-sample survey of nursing home staff, 10 percent 
admitted committing at least one act of physical abuse in the preceding 
year, and 40 percent committed psychological abuse. Thirty-six percent 
of the sample had seen at least one incident of physical abuse in the 
preceding year by other staff members.
  These statistics may only scratch the surface of the problem. It's 
quite likely that the incidence of abuse is far more prevalent. In 
fact, the Office of Inspector General at the Department of Health and 
Human Services has reported that 46 percent of respondents questioned 
believed abuse is only sometimes or rarely reported.
  Mr. President, the vast majority of health care facilities and their 
employees are dedicated and work hard under stressful conditions to 
provide the best care possible. But it only takes a few abusive staff 
to cast a dark shadow over what should be a healing environment.
  Although some facilities run thorough background checks on 
prospective employees, most do not. And even if they wanted to run more 
complete checks, facilities are prevented due to a fractured and 
inefficient system.
  It is far too easy for a health care worker with a criminal or 
abusive background to gain employment and prey on the most vulnerable 
patients.
  Why is this? Because current State and national safeguards are 
inadequate to screen out abusive workers. All States are required to 
maintain nurse aide registries, but these registries are not 
comprehensive or efficiently maintained.
  Many States limit their registries to nursing home aides, failing to 
cover home health aides, assisted living workers and hospital aides. 
Most States don't require criminal background checks of long-term care 
workers. Further, due to hit and miss investigations, many reports of 
abuse fall through the cracks.
  The problem I find most troubling is the lack of information sharing 
between States about known criminal

[[Page S8587]]

and abusive workers. There are no Federal requirements or guidelines on 
information sharing about abusive workers--even those who have been 
convicted in a court of law.
  Because no national registry of abusive health care workers exists, 
people with histories of abuse or serious crimes in one State can 
simply travel to another State to find work. These workers can also 
move from a nursing home to home health agencies or to hospitals 
without ever undergoing a complete background check.
  Problems also exist with reporting abuse. Rather than going through 
the trouble of making a report and drawing possible unwanted attention, 
a facility often will dismiss a worker without a report ever filed. 
Further, States hesitate to document problem workers due to the fact 
that a listing means barring a worker from nursing homes for life.
  Much of the public scrutiny on patient abuse has focused on nursing 
homes. But this is not the only care setting that should have increased 
protections. Home health care has been dramatically growing as a 
preferred long-term care option. Yet, protections for home care 
recipients are even more lax than those for nursing home residents.
  While I am pleased to report that some States, including Wisconsin, 
have begun working to establish criminal background checks and improve 
their registries, it is clear that effective national protections must 
be in place to fill the gaps in the system.
  The legislation I offer today builds on recommendations by State 
ombudsmen programs who are the watch guards for long-term care 
residents. This effort is also in response to calls from consumer 
groups and the long-term care industry for a streamlined, accurate way 
to screen potential workers for abusive or criminal histories.
  The Patient Abuse Prevention Act creates a national registry of 
abusive health care workers and requires criminal background checks for 
those entrusted to care for vulnerable patients.
  This would enable States and employers--either by computer or by 
phone--to check if a potential employee has a criminal record or other 
problem in their past that should preclude them from caring for the 
infirm.
  The national registry would also create a coordinated information 
network between States so that violators could not simply travel to 
another state to find work in a nursing home or other setting.
  By far, the best way to stop abuse is to address the situations that 
lead to problem behaviors. Most studies that have looked into patient 
abuse indicate that better training would make a big difference. 
Therefore, this bill creates a demonstration program to investigate 
best practices in patient abuse prevention. What we learn from this 
program can then be disseminated by the Department of Health and Human 
Services and made available to all health care settings.
  Mr. President, when a patient moves into a nursing home, or hires a 
home health care agency, they are entrusting that company with an 
enormous responsibility.
  Any instance of patient abuse is intolerable and inadequate 
background checks of health care workers is inexcusable.
  I believe that protecting our Nation's elderly and infirm Americans 
from abuse, neglect, and mistreatment should be a national priority. 
When senior citizens and disabled Americans check into a nursing home 
or other care setting, they should not have to check their right to a 
safe environment at the door.
  I urge my colleagues to join in this effort so that all Americans can 
rest more comfortably knowing that their loved ones are receiving the 
best and safest care possible.
  Mr. President, I ask that the text of the Patient Abuse Prevention 
Act, along with a comprehensive summary now appear in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1122

       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 ``Patient Abuse Prevention 
     Act''.

     SEC. 2. ESTABLISHMENT OF NATIONAL REGISTRY OF ABUSIVE 
                   WORKERS.

       (a) In General.--The Secretary shall establish, under the 
     health care fraud and abuse data collection program 
     established under section 1128E of the Social Security Act 
     (42 U.S.C. 1320a-7e), a registry to be known as the 
     ``National Registry of Abusive Workers'' (hereafter referred 
     to in this section as the ``Registry'') to collect and 
     maintain data on covered health care workers (as defined in 
     subsection (e)) who have been the subject of reports of 
     patient abuse.
       (b) Submission of Information By State Registries.--Each 
     State registry under sections 1819(e)(2) and 1919(e)(2) of 
     the Social Security Act (42 U.S.C. 1395i-3(e)(2) and 
     1396r(e)(2)) shall submit to the Registry any existing or 
     newly acquired information contained in the State registry 
     concerning covered health care workers who have been the 
     subject of confirmed findings of patient abuse.
       (c) Submission of Information By State.--Each State shall 
     report to the Registry any existing or newly acquired 
     information concerning the identity of any covered health 
     care worker who has been found to have committed an abusive 
     act involving a patient, including the identity of any such 
     worker who has been convicted of a Federal or State crime as 
     described in section 1128(a)(2)(A) of the Social Security Act 
     (42 U.S.C. 1320a-7(a)(2)(A)). The State shall provide such 
     workers with a right to issue a statement concerning the 
     submission of information to the Registry under this 
     subsection. Any information disclosed concerning a finding of 
     an abusive act shall also include disclosure of any statement 
     submitted by a worker in the registry relating to the finding 
     or a clear and accurate summary of such a statement.
       (d) Submission of Information by Facilities.--Each covered 
     health care facility shall report to the State concerning a 
     covered health care worker who has been found to have engaged 
     in an act of patient abuse. The State shall, in accordance 
     with the procedures described in part 483 of title 42, Code 
     of Federal Regulations (as in effect on July 1, 1995), 
     conduct an investigation with respect to a report under this 
     subsection to determine the validity of such a report.
       (e) Background Check.--
       (1) Requirements.--
       (A) In general.--Each covered health care facility (as 
     defined in subsection (f)), prior to employing a covered 
     health care worker, shall--
       (i) in the case of a covered health care worker who has not 
     otherwise undergone a criminal background check as part of 
     the licensing requirements of a State, as determined under 
     regulations promulgated by the Secretary, provide for the 
     conduct by the State of a criminal background check (through 
     an existing State database (if any) and through the 
     Integrated Automated Fingerprint Identification System) 
     concerning such worker, and provide the worker with prior 
     written notice of the requirement for such a background 
     check;
       (ii) obtain from a covered health care worker prior to 
     employment a written certification that such worker does not 
     have a criminal record, and that a finding of abuse has not 
     been made relating to such worker, that would preclude such 
     worker from carrying out duties that require direct patient 
     care; and
       (iii) in the case of all such workers, contact the State 
     health care worker registries established under sections 
     1819(e)(2) and 1919(e)(2) which shall also contact the 
     Registry for information concerning the worker.
       (B) Imposition of fees.--A State may assess a covered 
     health care facility a fee for the conduct of a criminal 
     background check under subparagraph (A)(i) in an amount that 
     does not exceed the actual cost of the conduct of the 
     background check. Such a facility may recover from the 
     covered health care worker involved a fee in an amount equal 
     to not more than 50 percent of the amount of the fee assessed 
     by the State for the criminal background check.
       (C) Effective date.--The requirement in subparagraph (A)(i) 
     shall become applicable on January 1, 1999, or on such 
     earlier date as the Director of the Federal Bureau of 
     Investigation determines that the Integrated Automated 
     Fingerprint Identification System has become operational.
       (2) Probationary employment.--Each covered health care 
     facility shall provide a probationary period of employment 
     for a covered health care worker pending the completion of 
     the background checks required under paragraph (1)(A). Such 
     facility shall maintain direct supervision of the covered 
     health care worker during the worker's probationary period of 
     employment.
       (3) Penalty.--
       (A) In general.--A covered health care facility that 
     violates paragraph (1) or (2) shall be subject to a civil 
     penalty in an amount not to exceed--
       (i) for the first such violation, $2,000; and
       (ii) for the second and each subsequent violation within 
     any 5-year period, $5,000.
       (B) Knowing retention of worker.--In addition to any civil 
     penalty under subparagraph (A), a covered health care 
     facility that--
       (i) knowingly continues to employ a covered health care 
     worker in violation of paragraph (1) or (2) in a position 
     involving direct patient care; or
       (ii) knowingly fails to report a covered health care worker 
     who has been determined to have committed patient abuse;
     shall be subject to a civil penalty in an amount not to 
     exceed $5,000 for the first such

[[Page S8588]]

     violation, and $10,000 for the second and each subsequent 
     violation within any 5-year period.
       (f) Definitions.--In this section:
       (1) Covered health care facility.--The term ``covered 
     health care facility'' means--
       (A) with respect to application under the medicare program 
     under title XVIII of the Social Security Act (42 U.S.C. 1395 
     et seq.), a provider of services, as defined in section 
     1861(u) of such Act (other than a fund for purposes of 
     sections 1814(g) and 1835(e));
       (B) with respect to application under the medicaid program 
     under title XIX of the Social Security Act (42 U.S.C. 1396 et 
     seq.), any nursing facility, home health agency, community-
     based residential facility, adult day care center, adult 
     family home, assisted living facility, hospice program, 
     hospital, treatment facility, personal care worker agency, 
     supportive home care worker agency, board and care facility, 
     or any other entity that receives assistance or benefits 
     under the medicaid program under that title;
       (C) a facility of the National Institutes of Health;
       (D) a facility of the Indian Health Service;
       (F) a health center under section 330 of the Public Health 
     Service Act (42 U.S.C. 254b);
       (G) a hospital or other patient care facility owned or 
     operated under the authority of the Department of Veterans 
     Affairs or the Department of Defense.
       (2) Covered health care worker.--The term ``covered health 
     care worker'' means any individual that has direct contact 
     with a patient of a covered health care facility under an 
     employment or other contract, or under a volunteer agreement, 
     with such facility. Such term includes individuals who are 
     licensed or certified by the State to provide such services, 
     and non-licensed individuals providing such services as 
     defined by the Secretary including nurse assistants, nurses 
     aides, home health aides, and personal care workers and 
     attendants.
       (3) Patient abuse.--The term ``patient abuse'' means any 
     incidence of abuse, neglect, mistreatment, or 
     misappropriation of property of a patient of a covered health 
     care facility. The terms ``abuse'', ``neglect'', 
     ``mistreatment'', and ``misappropriation of property'' shall 
     have the meanings given such terms in part 483 of title 42, 
     Code of Federal Regulations.
       (4) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services.
       (g) Consultation.--In carrying out this section the 
     Secretary shall consult with the Director of the Federal 
     Bureau of Investigation.
       (h) Regulations.--Not later than 6 months after the date of 
     enactment of this Act, the Secretary shall promulgate 
     regulations to carry out this section. With respect to 
     subsections (b) and (c), the regulations shall call for the 
     submission of information to the Registry not later than 30 
     days after the date of a conviction or on which a finding is 
     made.

     SEC. 3. EXCLUSION OF CERTAIN INDIVIDUALS FROM PARTICIPATION 
                   IN PROGRAMS.

       (a) Mandatory Lifetime Exclusion.--Section 1128(a) of the 
     Social Security Act (42 U.S.C. 1320a-7(a)) is amended by 
     adding at the end the following:
       ``(5) Criminal conviction.--Any individual or entity that 
     has been--
       ``(A) convicted, under Federal or State law, of a criminal 
     offense involving a crime against bodily security, including 
     homicide, battery, endangerment of safety, sexual assault, 
     child or elder abuse, and spousal abuse; or
       ``(B) found to have--
       ``(i) knowingly continued to employ an individual described 
     in subparagraph (A) in a position involving direct patient 
     care; or
       ``(ii) knowingly failed to report an individual who has 
     been determined to have committed a crime described in 
     subparagraph (A).''.
       (b) Permissive Exclusion.--
       (1) In general.--Section 1128(b) of the Social Security Act 
     (42 U.S.C. 1320a-7(b)) is amended--
       (A) in subsection (b), by adding at the end the following:
       ``(16) Finding relating to patient abuse.--Any individual 
     or entity that--
       ``(A) is or has been the subject of a specific documented 
     finding of patient abuse by a State (as determined under 
     procedures utilized by a State under section 1819(e)(2) or 
     1919(e)(2)); or
       ``(B) has been found to have--
       ``(i) knowingly continued to employ an individual described 
     in subparagraph (A) in a position involving direct patient 
     care; or
       ``(ii) knowingly failed to report an individual who has 
     been determined to have committed patient abuse as described 
     in subparagraph (A).''; and
       (B) in subsection (c)(3), by adding at the end the 
     following:
       ``(G) In the case of an exclusion of an individual or 
     entity under subsection (b)(16), the period of exclusion 
     shall be determined in accordance with regulations 
     promulgated by the Secretary based on the severity of the 
     conduct that is the subject of the exclusion.''.
       (2) Regulations.--Not later than 6 months after the date of 
     enactment of this Act, the Secretary of Health and Human 
     Services shall promulgate regulations to establish periods of 
     exclusion for purposes of section 1128(c)(3)(G) of the Social 
     Security Act.
       (c) Exclusions Apply to Any Entity Eligible for Federal 
     Reimbursement.--Section 1128 of the Social Security Act (42 
     U.S.C. 1320a-7) is amended by adding at the end the 
     following:
       ``(j) Applicability of certain exclusions.--The exclusion 
     (or direction to exclude) an individual or entity under 
     subsections (a)(2) and (b)(16) shall provide that such 
     individual or entity is excluded from working for or on 
     behalf of any entity that is eligible for reimbursement under 
     a Federal health care program, as defined in section 
     1128B(f).''.

     SEC. 4. PREVENTION AND TRAINING DEMONSTRATION PROJECT.

       (a) Establishment.--The Secretary of Health and Human 
     Services shall establish a demonstration program to provide 
     grants to develop information on best practices in patient 
     abuse prevention training (including behavior training and 
     interventions) for managers and staff of hospital and health 
     care facilities.
       (b) Eligibility.--To be eligible to receive a grant under 
     subsection (a), an entity shall be a public or private 
     nonprofit entity and prepare and submit to the Secretary of 
     Health and Human Services an application at such time, in 
     such manner, and containing such information as the Secretary 
     may require.
       (c) Use of Funds.--Amounts received under a grant under 
     this section shall be used to--
       (1) examine ways to improve collaboration between State 
     health care survey and provider certification agencies, long-
     term care ombudsman programs, the long-term care industry, 
     and local community members;
       (2) examine patient care issues relating to regulatory 
     oversight, community involvement, and facility staffing and 
     management with a focus on staff training, staff stress 
     management and staff supervision;
       (3) examine the use of patient abuse prevention training 
     programs by long-term care entities, including the training 
     program developed by the National Association of Attorneys 
     General, and the extent to which such programs are used; and
       (4) identify and disseminate best practices for preventing 
     and reducing patient abuse.
       (d) Authorization of Appropriations.--There is authorized 
     to be appropriated such sums as may be necessary to carry out 
     this section.
                                                                    ____


                      Patient Abuse Prevention Act


        section 1. short title: ``patient abuse prevention act''

      section 2. creation of national registry of abusive workers

       The National Registry will be established and maintained by 
     the Department of Health and Human Services, Office of 
     Inspector General. HHS is currently setting up a health care 
     fraud and abuse data bank pursuant to the Health Insurance 
     Portability and Accountability Act. This bill would increase 
     the scope of that data bank and require active use of the 
     registry. HHS will coordinate criminal findings and listings 
     with the FBI.
       Timeline--Within six months after the bill is enacted, HHS 
     will establish the National Abuse Registry and publish 
     regulations regarding submission of information from state 
     abuse registries to the National Registry. Abuse findings 
     will be reported to the Registry no later than 30 days 
     following confirmation.


                        contents/use of registry

       States will submit current nurse aide abuse registries to 
     HHS following issuance of regulations on standard formats for 
     submission.
       States will expand nurse aide abuse registries to include 
     other health care workers and personnel that have direct 
     contact with vulnerable patients. Current state registries 
     are limited to nurse aides, and in some states, home health 
     aides.
       The National Registry will also include all health care 
     workers who have been convicted of an abuse, who have been 
     subject to an abuse finding or who have a criminal record 
     that has a bearing on the care of vulnerable patients.
       Any provider hiring or employing a direct care worker would 
     contact the state for a check on the state registry and a 
     check of the National Registry. In addition, a criminal 
     background check will be initiated (described below).


                            reports of abuse

       Current HHS regulations require long-term care facilities 
     to investigate and report abuses for further investigations 
     to the appropriate state agency. This codifies that 
     requirement.
       Similarly, states must investigate patient abuse reports 
     and contact the National Registry with any confirmed abuses.
       Any finding of abuse will be submitted to the National 
     Registry along with a statement of the person subject to the 
     finding. Any abuse disclosure shall be accompanied by the 
     statement.
       States will also report known serious criminal convictions 
     of health care workers outside of the health care setting to 
     the national abuse registry. HHS will consult with the 
     Department of Justice to address privacy concerns and to 
     ensure coordination of the health care registry with national 
     criminal data bank maintained by the FBI.


                  mandatory criminal background checks

       FBI criminal background checks will be required for those 
     direct patient care workers who have not been subject to a 
     criminal background check under state licensing requirements. 
     This includes licensed practitioners who have not undergone a 
     background check, nurse aides, home health aides

[[Page S8589]]

     and other workers that will have unsupervised contact with a 
     vulnerable patient.
       States will submit check requests to the FBI national 
     criminal background check system (fingerprint checks). 
     Because of the current backlog at FBI for fingerprint checks, 
     the provision is delayed until no later than January 1, 1999. 
     At that time, FBI should have the Integrated Automated 
     Fingerprint Identification System fully operational. That 
     system should operate within a two-day turn around and at 
     less cost than the current manual system.
       Fees: States may charge fees to cover cost of FBI check, 
     not to exceed their cost. Facilities may split the cost of 
     the fees with the applicant.


                      penalties for non-compliance

       If a provider fails to inquire with the state and hires a 
     known abuser, the provider is subject to a fine of $2,000 for 
     the first violation and $5,000 for subsequent violations. If 
     there is willful disregard of the background check and 
     reporting requirements, the fines increase up to $10,000.


  section 3. changes to current law exclusions and obra '87 provisions

       Current law requires that only nurse aides are listed on 
     state registries. This requirement will be expanded to cover 
     all direct case workers.
       Current law already mandates exclusion for those convicted 
     of patient abuse or other crimes within the health care 
     setting. This adds a prohibition to health care workers who 
     have been convicted of the most serious crimes outside of the 
     health care setting, including homicide, battery, sexual 
     assault, and child, elder or spousal abuse.
       Varying degrees of abuse ``findings'' will be allowed on 
     state and national registry. One of the main complaints of 
     providers and state ombudsman programs is that a ``finding'' 
     of abuse equates to a ``death sentence'' by banning an 
     individual from working as a nurse aide for life. Due to the 
     severity of the ban, facilities may avoid pursuing a case and 
     States may hesitate to aggressively pursue abuse reports that 
     may or may not lead to a ``finding.'' Therefore, other health 
     facilities may be unaware of instances of abuse or 
     mistreatment. This bill will allow HHS to issue regulations 
     on varying degree's of findings and exclusions so that those 
     who have had problems will be listed, but not necessarily 
     prohibited from working for life.


                              definitions

       Covered Care Workers--Patient care workers who have direct 
     assess to vulnerable patients.
       Covered Health Care Facilities--those receiving Medicare or 
     Medicaid reimbursement, such as: nursing homes, skilled 
     nursing facilities, home health agencies, community-based 
     residential facilities, board and care facilities, adult day 
     care centers, adult family homes, assisted living facilities, 
     hospice programs, and hospitals. Federal health care 
     facilities are also subject to the requirements.
       Abuse--Any finding of abuse, neglect, mistreatment of 
     residents or misappropriation of their property as defined in 
     current Federal regulations relating to nurse aides (CFR, 
     Sect. 483.13 (c)(ii).
       Crime--those that reflect a clear disregard for the health, 
     well-being, safety and general welfare of other people must 
     be prohibited from working in direct contact with vulnerable 
     long term care residents or consumers. Current law already 
     requires exclusion of those convicted of health care fraud 
     and acts of abuse in the health care setting. Other crimes 
     may be cause for exclusion under current law at the 
     discretion of the Secretary of HHS. This bill adds a 
     mandatory exclusion of those convicted of serious crimes that 
     occur outside of the health care setting.


           section 4. abuse prevention/training demonstration

       Because the best way to combat patient abuse is to prevent 
     it from occurring, a new demonstration program is created to 
     compile information on best practices in abuse prevention 
     training for managers and staff of health care facilities. 
     The demonstration will focus on ways to improve collaboration 
     between state health care survey and certification agencies, 
     long-term care ombudsman programs, the long term care 
     industry and community members. Current patient abuse 
     prevention training programs will be studied for 
     effectiveness and application to other health care settings.
                                 ______
                                 
      By Mr. HATCH (for himself, Mr. Baucus, Mr. D'Amato, and Mrs. 
        Boxer):
  S. 1123. A bill to amend the Internal Revenue Code of 1986 relating 
to the unemployment tax for individuals employed in the entertainment 
industry; to the Committee on Finance


                    unemployment offset legislation

  Mr. HATCH. Mr. President, I rise today to introduce legislation to 
correct a problem with the way unemployment benefits are currently 
offset when received by participants in a multiemployer pension plan.
  Under our current Unemployment Compensation [UC] system States pay 
and administer UC benefits. The federal government shares in the cost 
of these benefits. Since 1980, the Federal Government has required that 
UC benefits be offset or reduced by any pension benefits that an 
individual receives from a base-period employer. A base period employer 
is any employer of the recipient during the 52-week period before the 
loss of a job.
  Here is how it works. If you are involuntarily separated from the 
same employer that is paying your retirement benefits and your 
employment caused your retirement benefits to increase any unemployment 
compensation you may qualify for will be offset by any retirement 
income received for this same employer. Thus, retirement benefits 
received could significantly reduce or eliminate any unemployment 
benefits.
  Mr. President, this policy was implemented, in part, to prevent 
employees from receiving pension benefits and qualifying for 
unemployment compensation from the same employment.
  Unfortunately, the application of the offset requirement to 
participants in multiemployer pension plans can unfairly penalize some 
taxpayers. Under current law, all employers in a multiemployer plan 
group are considered base-period employers for unemployment 
compensation purposes. Because of this, members of a multiemployer 
pension plan, such as actors and actresses that return to work, even 
through it may be for another employer (i.e., studio), are treated as 
returning to work for the same employer because all entertainment 
industry employers are part of the same multiemployer pension plan. 
Thus, when they return to work in their later years and their pension 
is increased by a nominal amount their unemployment compensation 
benefits are offset by their full pension amount. This can leave some 
with the little or no unemployment compensation benefits.
  Mr. President, to correct this, I am introducing legislation that 
would simply limit the unemployment benefit offset to the amount of the 
pension increase rather than the full pension amount received. Similar 
legislation has been introduced in the House by Rep. English as H.R. 
841.
  Mr. President, I hope we can pass this change to allow workers in 
multiemployer pension plans to receive the same treatment as 
participants in other plans.
  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. 1123

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

     SECTION 1. INDIVIDUALS EMPLOYED IN ENTERTAINMENT INDUSTRY.

       (a) In General.--Section 3304(a)(15) of the Internal 
     Revenue Code of 1986 (relating to reductions in tax) is 
     amended.
       (1) by striking ``and'' at the end of subparagraph (A),
       (2) by striking the period at the end of subparagraph (B) 
     and inserting ``;and'', and
       (3) by adding at the end of the following:
       ``(C) in the case of a pension, retirement or retired pay, 
     annuity, or other similar periodic payment under an 
     entertainment industry plan contributed to by an employer--
       ``(i) such a reduction shall not be required by reason of 
     such a payment unless--
       ``(I) such individual worked for such employer before the 
     base period, and
       ``(II) such employer contributed to such plan an account of 
     such individual's work for such employer before the base 
     period, and
       ``(ii) subject to subparagraph (B), such reduction shall 
     not exceed the amount (if any) of the increase referred to in 
     subparagraph (A)(ii) in such payment which is attributable to 
     services performed by such individual for such employer;''.
       (b) Entertainment Industry Plan and Employer.--Section 3304 
     of such Code is amended by adding at the end of the following 
     new subsection:
       ``(g) Entertainment Industry Plans and Employers.--For 
     purposes of subsection (a)(15)(C)--
       ``(1) Entertainment industry plan.--The term `entertainment 
     industry plan' means any multi-employer plan substantially 
     all of the contributions to which are made by entertainment 
     industry employers.
       ``(2) Entertainment industry employer.--The term 
     `entertainment industry employer' means any employer 
     substantially all of the trades or businesses of which 
     consists of either or both--
       ``(A) radio or television broadcasting, and
       ``(B) the production or distribution of visual images or 
     sound on--
       ``(i) video or audiotype,
       ``(ii) film, or
       ``(iii) computer-generated or other visual for audio media,
     for public dissemination (whether for entertainment, 
     informational, commercial, educational, religious, or other 
     purposes).''

[[Page S8590]]

       (c) Effective Date.--
       (1) In general.--The amendments made by this section shall 
     apply to weeks beginning after December 31, 1997.
       (2) Special rule.--In the case of any State the legislature 
     of which has not been in session for at least 30 calendar 
     days (whether or not successive) between the date of the 
     enaction of this Act and December 31, 1997, the amendments 
     made by this section shall apply to weeks beginning after the 
     date which is 30 calendar days after the first day on which 
     such legislative is in session on or after December 31, 1997.
                                 ______
                                 
      By Mr. KERRY (for himself and Mr. Coats):
  S. 1124. A bill to amend title VII of the Civil Rights Act of 1964 to 
establish provisions with respect to religious accommodation in 
employment, and for other purposes; to the Committee on the Judiciary.

                          ____________________