[Congressional Record Volume 143, Number 147 (Tuesday, October 28, 1997)]
[Senate]
[Pages S11283-S11287]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                THE RICKY RAY HEMOPHILIA RELIEF FUND ACT

  Mr. DeWINE. Mr. President, I rise today to discuss a bill I have 
introduced. That bill is called the Ricky Ray Hemophilia Relief Fund 
Act. I introduced this legislation in the last Congress and again this 
year. I introduced it along with my distinguished colleague from 
Florida, Senator Bob Graham. A House companion measure has been 
introduced by our friend, Congressman Porter Goss.
  Mr. President, the purpose of this bill is to deal with the terrible 
tragedy within the hemophilia community that was brought about by the 
HIV contamination of the blood supply and blood products during the 
1980's. A number of Americans suffered terrible harm because they 
relied on the Federal Government to protect the blood supply.
  Mr. President, those of us who are backing this legislation believe 
that the Federal Government has a moral duty to help these Americans.
  Let me first talk about the role of the Government in this tragedy.
  The Ricky Ray Hemophilia Relief Fund Act of 1997 recognizes that the 
Federal Government has a responsibility for protecting the safety of 
the blood supply in this country and a responsibility for regulating 
blood products.
  Mr. President, during the 1980's, our Government failed to meet this 
obligation to the hemophilia community of this country. The Federal 
Government failed in its obligation. People affected by hemophilia--
children, adults, and the family members who cared for them--had a 
right to expect the Nation's blood supply system to work. That system 
relies upon many organizations, both public and private. It relies on 
many organizations to collect and process, distribute, monitor, and 
regulate the blood supply and blood products.

  Unquestionably, the Federal Government bears the greatest and the 
ultimate responsibility for blood safety through its surveillance, 
research, and regulation functions. That is why, Mr. President, in 1973 
the Assistant Secretary for Health announced the national--national--
blood policy which then became, according to a report by the Office of 
Technology Assessment, ``The focal point around which blood banking 
policy has evolved over the last decade.''
  Mr. President, this is the U.S. Government's national blood policy--
the U.S. Government's national blood policy--a policy the U.S. 
Government undertook, a policy on which the American people should have 
been able to rely. The very fact that we have a national policy 
indicates a level of responsibility, a level of importance and 
involvement that we really don't see in most other areas of consumer 
protection. This policy is what gives the Federal Government a unique 
responsibility for the blood supply in this country.
  Mr. President, these functions--surveillance, regulation, and 
research on blood--are carried out through the Public Health Service. 
The Centers for Disease Control hold responsibility for surveillance of 
potential threats to blood safety. The National Institutes of Health 
are responsible for biomedical research on emerging threats and 
improved technologies for prevention. Mr. President, these two agencies 
work in conjunction with the Food and Drug Administration, the FDA, 
which through its regulatory authority and powers of inspection, 
product recall, guidelines, and fines, holds primary responsibility for 
the safety of the blood supply and blood products under the Food, Drug 
and Cosmetic Act. Together, Mr. President, these agencies form the 
backbone of our Nation's blood safety system.
  Mr. President, the awful truth is that this system failed. It failed 
to protect people with hemophilia or their families from deadly 
disease. That is why we have introduced this bill. Members of the 
Senate don't have to just take my word for it nor just the word of the 
families in the hemophilia community. Rather, in 1993, Mr. President, 
the Secretary of Health and Human Services opened an investigation, an 
investigation into the events leading to the transmission of HIV to 
individuals with hemophilia.
  One of the key questions that was asked and that they were asked to 
address at the time was this: Did the Government provide an adequate 
and timely response to the warning signs of the 1980's, the warning 
signs of HIV as it related to the blood supply in this country?
  The Secretary contracted with the Institute of Medicine, IOM, a 
private nonprofit organization that provides health policy advice under 
a congressional charter granted to the National Academy of Sciences. 
Mr. President, after 18 months of investigation, the IOM published its 
report in 1995. This report was entitled ``HIV and the Blood Supply: An 
Analysis of Crisis Decisionmaking.'' Mr. President, the report found 
inadequacies in the Government's effort. It found ``a failure of 
leadership'' that led to the HIV infection of more than one-half of the 
Nation's hemophilia population. This IOM report and its panel of 
experts from across the country found that the transmission of the HIV 
virus and AIDS revealed a weakness in the Federal Government's system 
for ensuring the safety of the Nation's blood supply.

  The Institute of Medicine was specifically not charged with laying 
blame, but in its final report it was highly critical of the Government 
agencies responsible for protecting the safety of the blood system in 
this country. It identified several areas where the Federal Government 
specifically failed to curtail the impact of HIV. Mr. President, the 
IOM found that the Government ``consistently adopted the least 
aggressive options for slowing the spread of HIV within the hemophilia 
community.'' Let me repeat: This report, this official report, found 
that the Government ``consistently adopted the least aggressive options 
for slowing the spread of HIV within the hemophilia community.''
  Time after time when decisions were made in the face of the unfolding 
HIV crisis, tragically, the wrong decisions were made about the blood 
supply. When faced with decisions about deferring donors or recalling 
products or testing for other known diseases, we know now that the 
Government officials made the wrong decisions.
  Let me talk about these decisions and about what happened. First, the 
Federal Government failed to take adequate steps to screen blood 
donors. Knowing that AIDS was transmitted through blood, the Government 
did not

[[Page S11284]]

do all it could, did not do all it could have done to screen blood 
donors.
  In January 1983 experts at the Centers for Disease Control met with 
representatives from the other Government agencies to consider 
available data on the spread of HIV and to develop at that time 
strategies for prevention. Those experts in the Centers for Disease 
Control concluded that AIDS was transmitted by sexual contact and 
through blood, and they made recommendations for enhanced screening of 
blood donors, including the use of a surrogate hepatitis test to screen 
for potentially HIV-infected blood.
  In other words, Mr. President, in January 1983 the Government knew 
that AIDS was transmitted through blood. Now, by that time 12 persons 
with hemophilia had already been diagnosed with HIV and some 10 deaths 
had already occurred.
  Let's go back now to that specific meeting in January 1983 that I 
just referenced. At that meeting, experts from the Centers for Disease 
Control estimated that intensified screening of blood donors would 
eliminate over 75 percent of AIDS-infected donors from the blood pool, 
and they estimated that requiring a surrogate blood screening test 
would detect 90 percent of donors with AIDS. Tragically, however, Mr. 
President, both of these recommendations were rejected by the other 
Government officials at this meeting. These two very specific 
recommendations were rejected again later that year in December 1983, 
rejected by the Food and Drug Administration's Blood Products Advisory 
Committee. These recommendations were never implemented.
  Let me talk about the second fact. Second, Mr. President, the Federal 
Government failed to recall potentially contaminated blood and blood 
products. In two separate instances, the FDA missed opportunities to 
get potentially dangerous products off the shelf. In the first 
instance, knowing that a blood product might have been made with AIDS-
tainted blood, the Government failed to automatically recall that 
product. In January 1983, the FDA decided not to automatically recall 
hemophilia clotting-factor products linked to donors suspected of 
having AIDS supposedly because of concerns about the impact on the 
availability of clotting factor and its cost.
  In July 1983, FDA failed to act. By the following year, 1984, 83 
cases of persons with hemophilia were diagnosed with HIV, and 81 deaths 
had, by that point in time, occurred.
  In the second instance, Mr. President, knowing that there was now a 
way to make the blood products safe, the Government failed to take the 
potentially unsafe products off the market until, incredibly, 4 years 
had passed.
  Mr. President, by 1985, heat-treated product was available--heat-
treated product, meaning that the virus was inactivated.
  Back in the late 1970's, the process of heat treatment of clotting 
factor had been developed in Europe, providing hope that the HIV virus 
could be inactivated. Now, while FDA moved quickly through 1983 and 
1984 to license new manufacturing processes for the heat treatment of 
clotting factor, by 1985, heat-treated factor had been as effective in 
inactivating HIV. However, Mr. President, tragically, the FDA did not 
act to recall the untreated products. It waited until 1989, some 4 
years later.
  Meanwhile, those dangerous products were left on the shelf to cycle 
through the system, and all that time a method of making those products 
safe was readily available.
  Let me turn to the third essential fact. Third, Mr. President, the 
Federal Government failed to act quickly to trace and to notify 
potential recipients of AIDS-contaminated blood and blood products. 
Knowing that transmission of HIV-infected blood products led to HIV 
infection, knowing some of the blood was contaminated, and knowing 
people were using it, the Government failed to immediately notify the 
people who were at risk. Recipients became infectious immediately, but 
appeared healthy, of course, for approximately 4 or 5 years, during 
which time their spouses or sexual partners were at risk of acquiring 
HIV. If nothing else, Mr. President, once the signals were clear, the 
Government should have done more to alert people to these risks not 
just to their own health, but to the health of their loved ones, their 
spouses, and their children.
  It was in 1988 that President Reagan issued a Presidential directive 
to formulate Federal policy for tracing the recipients of possibly 
infected blood products.
  However, tragically, the FDA did not issue recommendations for 
patient notification until 1991--some 3 years later. Now, by that time, 
2,040 persons with hemophilia had been diagnosed with HIV, and more 
than 1,500 members of the hemophilia community in this country had died 
of HIV. For the hemophilia community, Government action came too late--
much too late.
  Mr. President, these are the reasons why I believe that this country 
and this Congress has a moral obligation to help these families. Our 
Ricky Ray bill would authorize the establishment of a trust fund to 
provide $125,000 in compassionate payment to eligible individuals or 
families of persons with hemophilia and AIDS. The trust fund would be 
administered by the Secretary of Health and Human Services and would 
sunset 5 years after it is funded.
  Mr. President, approximately 7,200 people with hemophilia--nearly 
half of all persons with hemophilia in the United States--were infected 
with HIV through the use of blood clotting products.
  These products came from as many as 20,000 donors, sometimes even 
more. These concentrates expose individuals with inherited bleeding 
disorders to a high risk of infection by blood-borne viruses, such as 
hepatitis.
  Because of the hemophilia community's reliance on blood products, the 
Centers for Disease Control monitors the hemophilia community to aid in 
the detection of emerging viruses or pathogens that could affect all 
Americans. Problems in the blood supply tend to show up in the 
hemophilia community first--so they serve really as a kind of ``distant 
early warning system'' for our blood supply. It is a crude but accurate 
comparison to say that this community is the proverbial ``canary in the 
mine shaft.'' They serve in that function for the rest of us.
  During the 1980's, when the Nation's blood supply and blood-derived 
products became contaminated with the AIDS virus, HIV was detected in 
three men with hemophilia, providing early evidence that this disease 
could be transmitted through blood--thus affecting a far broader cross-
section of our population. We now know that this was to mean the 
devastation of the hemophilia community.
  Mr. President, more than 80 percent of people with severe hemophilia 
and half of all persons with hemophilia were infected with HIV during 
the 1980's through the use of HIV-contaminated blood products. In some 
cases, due to a lack of education and outreach, their wives, husbands, 
children, and partners became infected as well.
  The impact of HIV on the Nation's hemophilia population has been 
truly devastating. The HIV contamination of the blood supply has caused 
significant emotional and financial losses to these families.
  Our bill would make a gesture of compassion to these American 
families. It would also acknowledge that the Government played a role 
in this crisis and, therefore, has incurred some obligation.

  Eligible individuals, or their families, would be required to 
document the use of blood products between July 1982 when the first 
cases of persons with hemophilia contracted AIDS were reported to the 
Centers for Disease Control and December 1987, when the last 
manufacturer recall of blood products occurred.
  This bill, which has been referred to the Labor and Human Resources 
Committee, already has the bipartisan support of 35 Members of this 
body.
  In coming to the Senate floor this evening, it is my hope that I will 
be able to answer some of the questions that have been raised about 
this bill, and to ask those of our colleagues who have not yet 
cosponsored this bill to consider doing so after hearing the facts that 
I will be laying out in a moment.
  Let me talk for a minute about how I came to introduce this bill. In 
doing that, let me tell you a little bit about the bill's name sake--
Ricky Ray. Ricky Ray and his brothers were born with hemophilia. This 
is a rare genetic condition, impairing the ability of

[[Page S11285]]

blood to clot effectively. This disorder affects, today, about 20,000 
Americans.
  People with hemophilia historically had a short lifespan and 
typically faced numerous hospital stays and complications.
  Hemophilia was also frequently associated with crippling. Persons 
with hemophilia would suffer internal bleeding, leading eventually to 
the destruction of their joints and muscle tissues, because no 
effective treatment existed.
  But this changed in the 1970's, with the development of clotting 
factor concentrates, which are derived from blood. It was also changed 
by the introduction of comprehensive care that allowed many individuals 
with hemophilia to begin to manage their bleeding episodes at home.
  Clotting factor eliminated the need for frequent and costly 
hospitalization and ensured that even persons with severe hemophilia 
would be able to attend school, obtain full-time employment, and enjoy 
greatly increased life expectancy. Clotting factor changed the lives of 
persons with hemophilia, especially for children like the Rays, who, 
unlike their grandfathers and uncle, could now see a future involving a 
long and healthy life.
  When clotting factor was introduced, it was treated as a miracle 
drug. People were encouraged to use it not just in case of a life-
threatening bleed but also as a part of their daily lives--a preventive 
measure. It is just a slight exaggeration to say that people were 
encouraged to treat early and to treat often.
  The great promise of this new treatment, however, proved short lived 
when, tragically, it was found to be an effective means to transmit the 
virus known as HIV. Ricky Ray was diagnosed as HIV positive in 1986. He 
was only 9 years of age. He had contracted HIV through the use of this 
remarkable new treatment, this clotting factor. His two brothers 
contracted HIV as well and so did 72 other members of the hemophilia 
community across this country.
  Ricky Ray and his brothers were kicked out of school. They were 
kicked out of school because of their HIV status, and then, when their 
parents won a decision in court to readmit them, arsonists set their 
house on fire. Instead of giving in to anger, Ricky Ray became a 
spokesperson promoting understanding about HIV. And he did this until 
his death in 1992 at the age of 15.
  I personally became involved with the hemophilia community when I met 
a father from Ohio whose son Christopher had severe hemophilia. John 
Williams was the primary caregiver for his son. John accompanied 
Christopher to his doctor's appointments and learned how to infuse his 
child with the medicine that would control his bleeding disorder. John 
also shared anguish and pain with his 8-year-old little boy when he 
then later was diagnosed with AIDS.

  John was determined, as all parents would be, to help Christopher 
survive. John accompanied Christopher to the National Institutes of 
Health campus every few weeks for the latest in treatment options and 
breakthrough technologies.
  Throughout this experience, the constant thought in the father's mind 
was that he had infused his own son with the medicine that would 
eventually kill him. He often thought that he had been negligent in 
some way. Had he perhaps missed a crucial piece of information that 
could have saved Christopher? Had he missed an important news story or 
warning? Was there anything he could have done to save his son?
  For 5 years, the father, John, shared in his young son's battle. Then 
in October 1994, Christopher died of complications from AIDS. He had 
just entered the 10th grade and was contemplating college plans, a 
dream that, of course, was never fulfilled.
  This legislation is really about people. It is about people and their 
strength in facing tragedy, the devastation of an entire community of 
people that today has come to be represented by a courageous boy from 
Florida by the name of Ricky Ray.
  The concerns that I raise today have been raised repeatedly by the 
hemophilia community in this country. Unfortunately, the legal system 
has not been an effective means to address these concerns nor to 
provide the assistance to infected individuals, and there are several 
reasons why.
  The first has to do with what's called blood shield laws. Whenever 
the Federal Government writes product liability laws of any kind, we in 
the Congress insert a standard exemption for blood and blood products. 
We, therefore, defer to the States to regulate in this area, and in 
doing so we affirm the State blood shield laws that are prevalent 
throughout this country.
  Forty-seven different State jurisdictions have exempted blood and 
blood products from strict liability or implied warranty claims on the 
basis that blood and blood products are services, not products. Now, 
this classification is more than just a question of semantics. It means 
that plaintiffs must prove negligence rather than simply use of the 
blood was the proximate cause of the injury they suffered, which is the 
standard for other products.
  In 1976, blood banks began receiving exemptions from liability even 
under a negligence standard with the passage of blood shield laws. In 
1977, the courts began extending this exemption from liability to blood 
product manufacturers on similar grounds. They did all of this because 
the States believed the need for an available blood supply, for surgery 
and other medical procedures, outweighed the relatively minor risk of 
hepatitis. The rationale was that blood product manufacturers should be 
exempt from product liability, since blood products are unavoidably 
unsafe, because the risk of hepatitis simply could not be eliminated.
  There is a much higher standard of proof for consumers of blood and 
blood products. The ability of individuals in this community, the 
hemophilia community, therefore, to seek resolution in the court system 
has been severely curtailed by these State blood shield laws.
  If that were not enough, there are other legal problems confronting 
these hemophilia victims and their families. Just a couple of examples. 
First, collecting evidence for suits against manufacturers is 
extraordinarily difficult. Most individuals that became infected with 
HIV had a severe form of hemophilia that meant they were infusing 
thousands of units of clotting factor on a monthly and sometimes weekly 
basis. These individuals were understandably unable to determine 
exactly from which manufactured lot the product that infected them 
came.
  Second, hemophilia families also face the problem of statute of 
limitations. All States have them, and they prohibit individuals from 
prevailing in litigation if the suit was not filed within a few years 
of the alleged tort. To the hemophilia community, many individuals were 
diagnosed after the prescribed period in the statute of limitations and 
were unable to take any action.
  Just as significantly, they are also battling a disease with a long 
and often symptom-free incubation period. This makes statutes of 
limitation even less defensible and imposes a much greater burden on 
this community.
  All this does not mean that the hemophilia community, these people 
who have suffered so, has not tried. They have. Hundreds of suits have 
been filed against the manufacturers of clotting factor. In some States 
the hemophilia community has even been successful in rolling back the 
statute of limitations.
  Recently, many members of the hemophilia community gave up their 
right to continue to pursue the manufacturers through the courts, and 
they did this by agreeing to a class action settlement.
  This settlement brings recognition to the HIV infection of the 
hemophilia community and provides some relief to the community for 
their suffering. But this is not to say that the community was holding 
out until recently for something better. Victims were unable to meet 
the especially high liability standards established by the blood shield 
laws. It appears that increasing momentum for the Ricky Ray bills in 
the House and Senate pushed the negotiations into a final phase.
  Senators may ask about the private settlement proposal as offered by 
four manufacturers of clotting factor concentrates in 1996, an offer 
that was made in April 1996. This settlement, which has been approved 
by the U.S. District Court of Northern Illinois, will provide each 
person infected with HIV through the use of clotting factor $100,000. 
The settlement proposal was

[[Page S11286]]

drafted so the payment would be contingent upon obtaining certain 
protections for recipients receiving means-tested benefits such as 
Medicaid.
  So for this reason, when we reintroduced the Ricky Ray bill this 
year, I included a second title in the bill to protect the eligibility 
for individuals receiving Medicaid and SSI upon receipt of the 
settlement claim.
  The Balanced Budget Act of 1997 included a provision related to the 
private settlement protecting the eligibility of individuals receiving 
Medicaid benefits. Unfortunately, no similar protection for SSI 
eligibility was included.
  I support the settlement between the hemophilia community and the 
manufacturers of clotting factor and see it as the first step in 
addressing the ongoing responsibility that the companies have to the 
community they serve. I do not believe that the victims--in looking for 
compensation--should be limited to seeking from private companies. This 
should not be an exclusive remedy. It should not be seen as an 
exclusive remedy, very bluntly, because the Government shares the 
blame. And private settlements are inadequate.
  As to the specific figure at which we have arrived--$125,000--I think 
this is an eminently reasonable compensation, when you consider that 
the average cost of care for patients with severe hemophilia--per 
year--is $100,000.
  Let's look at how some other governments have dealt with this 
problem.


                    Compensation in other Countries

  Many other developed countries have established compensation programs 
to assist individuals with blood-clotting disorders who were infected 
with HIV by contaminated blood products.
  In some countries, such as Australia, France, Germany, Japan, Spain, 
and the United Kingdom, assistance has come from combined public and 
private sources. Specifically, in Japan, the government--and the same 
pharmaceutical companies we are dealing with here in the United 
States--agreed to provide, together, payments of $430,000 to victims of 
hemophilia-related AIDS. The government shouldered 44 percent of the 
burden, and the pharmaceutical companies paid the rest.
  In other countries, such as Canada, Denmark, Hong Kong, Italy, 
Portugal, and Switzerland, assistance has been provided directly from 
the government.


                               Precedents

  Some of my colleagues have raised concerns that passage of the Ricky 
Ray relief legislation may set a legal precedent. What kind of 
precedent is there? In fact, the U.S. Congress has a history of 
recognizing the country's responsibilities to aggrieved individuals and 
has provided relief for these victims.
  It is my intention, in the next few minutes, to lay out the 
precedents in some detail. But I would like to point out, first and 
foremost, that blood is unique. The Federal Government and, by its 
permission, State governments, regulate the blood supply in a unique 
way.
  Because the Government has a unique responsibility in the case of 
blood, passage of the Ricky Ray Relief Act will not set a precedent. It 
would, rather, represent another extraordinary circumstance in which 
Congress has determined that injured parties should receive 
compensation for injuries sustained as a result of Government action or 
inaction.
  Individuals in the hemophilia community are prevented from recovery 
from the Federal Government under the Federal Tort Claims Act [FTCA], 
which is designed to be the exclusive means of compensation for 
injuries sustained as a result of the negligence of the Federal 
Government. Because the Federal Tort Claims Act includes an explicit 
exemption from claims that arise directly as a result of the ``exercise 
or performance or the failure to exercise or perform a discretionary 
function,'' victims are barred from recovery for the inaction of the 
FDA in its regulation of blood products. They are barred under this 
act.

  But Congress has acted to compensate individuals when it determines 
that remedy under the Federal Torts Claims Act and other statutes is 
inadequate. Congressional passage of the Ricky Ray Act would represent 
another instance of Congress recognizing the appropriateness of 
compensating victims unable to recover under the Federal Tort Claims 
Act.
  Let me discuss two relevant precedents. One of the first major claims 
made after the passage of the Federal Tort Claims Act was the claim 
made on behalf of the victims of the explosion of two cargo ships 
containing ammonium nitrate fertilizer in the harbor of Texas City, TX, 
in 1947. In this case, the Supreme court held, in Dalehite v. United 
States, 346 U.S. 15 (1953), that the Federal Government was not liable 
because the plaintiffs could not prove negligence. Additionally, a 
claim of absolute or strict liability was rejected because the Court 
found that the Federal Tort Claims Act did not allow recovery on that 
basis. Despite--and, in part, because of--the Supreme Court's explicit 
rejection of the claim under the Federal Tort Claims Act, 2 years 
later, the Congress passed legislation providing settlement of claims 
resulting from the explosion. This legislation established the 
precedent that Congress may pass legislation authorizing compensation 
without finding the Government at fault.
  Let me turn to another example that closely reflects the hemophilia 
situation in the mid-1980's in this country. Congress combined relief 
for two different populations of victims in one statute--the Radiation 
Exposure Compensation Act. One group was made up of uranium miners who 
were seeking compensation for the adverse health effects they had 
experienced while working in private mines--private mines. The second 
group, known as ``downwinders,'' was made up of individuals who lived 
downwind of atomic test sites and were exposed to radiation. Neither 
group was able to recover from the Federal Government in court. Both 
failed.
  The courts had previously ruled against the uranium miners in Begay 
v. United States, 591 F.Supp. 991 (1984), and against the downwinders 
in Allen v. United States, 816 F2d 1417 (1987). The courts found that 
the Government could not be held liable for injuries because its 
policies were protected by the discretionary function exception in the 
Federal Tort Claims Act.
  In Begay, the plaintiffs had asserted that various government 
agencies were actionably negligent in leaving the responsibility for 
uranium mine safety--outside Federal enclaves like Indian 
reservations--to the States. They also asserted that these agencies 
were negligent in failing to enforce rigid radiation safety levels in 
the Indian reservation mines--and that all the Federal agencies 
involved were themselves negligent in failing to establish and enforce 
rigid radiation safety standards in the underground uranium mines in 
the 1940's, 1950's, and early 1960's.
  The court in Begay suggested that the miners seek redress from the 
U.S. Congress. This is what the Court said:

       This tragedy of the nuclear age . . . cries for redress. 
     Such relief should be addressed by the Congress as it was in 
     the Texas City explosion following the decision of the 
     Supreme Court in Dalehite.

  In the Allen case, the downwinder plaintiffs had singled out the 
alleged failure of the Government to fully monitor offsite fallout 
exposure, and to fully provide the necessary public information on 
radioactive fallout. As in the Begay case, the court found no 
obligation to compensate on the basis of failing to monitor or warn. A 
concurring opinion in Allen noted that the court's hands were tied:

       While we have great sympathy for the individual cancer 
     victims who have borne alone the costs of the Atomic Energy 
     Commission's choices, their plight is a matter for Congress. 
     Only Congress has the constitutional power to decide whether 
     all costs of government activity will be borne by all the 
     beneficiaries or will continue to be unfairly apportioned, as 
     in this case.

  In 1990, Congress did in fact provide relief to these two groups 
through the Radiation Exposure Compensation Act, Public Law 101-426. 
The circumstances that led to the passage of the Radiation Exposure 
Compensation Act are, I believe, very instructive.
  In that case, the States failed to require that the private mine 
operators follow Federal health and safety standards. As a result, 
people got sick. They could not recover from the private mine 
operators--nor could they recover from the Federal Government. Those 
individuals were compensated later through congressional legislation, 
through action by the House and the Senate.
  The facts are clear. In that case, little or nothing was done by the 
States to force the private mine operators to

[[Page S11287]]

improve ventilation in their mines. Although the Public Health Service 
demonstrated that adequate mine ventilation would be relatively 
inexpensive--and the Atomic Energy Commission had developed effective 
radiation level controls, which were available for all State and 
Federal agencies--the mine operators successfully resisted efforts to 
substantially reduce radiation levels by improved ventilation 
techniques. Through legislation, compensation was ultimately made to 
individual miners who worked for private mine operators that were not 
subject to Federal radiation safety requirements.
  These precedents bring us directly to the Federal Government's 
responsibility for the blood supply in this country and bring us 
directly to this bill.
  The evidence in the IOM study that I referenced previously on blood 
safety clearly demonstrates that, in a number of instances, FDA failed 
to mandate certain Federal patient safety requirements for private 
processors of blood products, failed to act on recommendations from the 
Centers for Disease Control concerning screening blood donors, failed 
to mandate recall of hemophilia clotting factor, and failed to 
implement a 1988 Presidential directive to trace recipients of possibly 
infected blood, failed to do that for 3 long years. Passage of the 
Ricky Ray Hemophilia Relief Act does not set a new precedent, but--on 
the contrary--is fully consistent with the earlier precedents set by 
Congress to provide compensation for injury when remedy could be found 
by no other means.


                        how to pay for ricky ray

  As this bill is written, the Ricky Ray Act provides $125,000 for each 
eligible individual, and so, with an estimated 7,200 
affected individuals, the total cost of the bill is estimated at $900 
million.

  In order to identify individuals and determine their eligibility, 
payments authorized by the legislation will likely occur over several 
years. This would result in at least two smaller annual appropriations 
requests.


                      Support for This Legislation

  As I stated earlier, the Ricky Ray Hemophilia Relief Fund Act has the 
support of 35 of our Senate colleagues and the support of 257 Members 
of the House of Representatives.
  The legislation is also endorsed by the American Red Cross, the 
American Association of Blood Banks, America's Blood Centers and AIDS 
advocacy organizations such as the National Association of Persons with 
AIDS and the AIDS Policy Center.
  In her letter to the National Hemophilia Foundation, American Red 
Cross President Elizabeth Dole stated:

       The American Red Cross supports a comprehensive approach to 
     addressing the needs of those infected with HIV or other 
     transmissible agents through the use of blood components or 
     blood products. For individuals with hemophilia who were 
     infected with HIV before 1985, the American Red Cross 
     believes that finalization of the manufacturers' settlement 
     offer, coupled with the government-funded compensation 
     program outlined in the Ricky Ray legislation, will provide 
     an effective means of immediate help.

  A host of other developed countries have established compensation 
programs to assist individuals with blood-clotting disorders who were 
infected with HIV by contaminated blood products.
  I believe it is now time for the United States--and for this 
Congress--to take action as well. I encourage my colleagues to 
cosponsor this legislation, to join the 35 other Members of this body 
who have already signed on as cosponsors. The Senate Labor Committee is 
scheduled to have a hearing on this bill on Thursday of this week. 
Chairman Hyde will be bringing the House bill before the full House 
Judiciary Committee tomorrow. I would invite my colleagues to examine 
the hearing record, and learn more about the need for this bill. I 
believe the case has been made and the case is clear: The Federal 
Government has a moral duty to help those Americans who counted on the 
Federal Government to protect the blood supply. No, Mr. President, this 
bill cannot reverse the tragedies, but it can serve to demonstrate that 
the Federal Government can be held accountable for its actions.
  Mr. President, we often hear that bad things happen to good people. 
That is something that governments and Congresses will never be able to 
cure. But in this case, when bad things happened to good people, the 
U.S. Government played a part in the problem. The U.S. Government 
should now play a part in the solution--and do something to help these 
American families.
  I thank the Chair.

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