[Congressional Record Volume 144, Number 84 (Wednesday, June 24, 1998)]
[Senate]
[Pages S7013-S7018]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           NURSING RELIEF FOR DISADVANTAGED AREAS ACT OF 1998

   Mr. DURBIN. Mr. President, Today I introduce the Nursing 
Relief for Disadvantaged Areas Act of 1998. Today,

[[Page S7014]]

some of our nation's poorest rural and inner-city communities face a 
crisis --they may soon have inadequate or no hospital health care 
because nurses are unwilling to work in these neighborhoods. The 
Nursing Relief Act will ensure that hospitals located in these 
desperately under served areas can continue to provide adequate health 
care to our most needy communities.
  Hospitals located in underprivileged areas often experience severe 
difficulty in attracting nurses. These hospitals operate in the middle 
of some of the harshest poverty and crime in our country. The employees 
of these hospitals often treat the worst and most troubling cases.
  And, the condition of the surrounding area imperils the ability of 
these hospitals to recruit and maintain an adequate nursing staff. 
These circumstances have pushed some hospitals into a financial crisis, 
threatening the quality of health care to those most in need.
  For the past eight years, this problem has been addressed by the 
H(1)(a) visa program which has allowed these hospitals to hire 
nonimmigrant nurses. Unfortunately, the H(1)(a) visa program sunset 
last fall, and so once again such hospitals are in crisis. By replacing 
the H(1)(a) visa, the Nursing Relief Act will alleviate this crisis.
  The true beneficiary of this program will not be the hospitals, but 
the underprivileged communities which rely on the hospitals' services. 
Let me tell you a story about the role that this program can play in 
the health of a community. The story is about St. Bernard hospital on 
the South Side of Chicago.
  St. Bernard Hospital is the only remaining hospital in the Englewood 
community on the south side of Chicago, one of the poorest and most 
crime ridden neighborhoods in the country. Over the years, St. Bernard 
has become indispensable to its community. Even though it has not been 
designated as a trauma center, St. Bernard receives the second highest 
number of ambulance runs from the Chicago Fire Department. St. Bernard 
also provides free vision exams and free screening for blood pressure, 
cholesterol, diabetes, and sickle cell anemia. In addition, 
schoolchildren receive free physicals and inoculations, and the 
hospital sponsors numerous health fairs throughout the area.
  St. Bernard also offers a great number of outreach and community 
services. A food pantry is stocked, and clothes are made available for 
patients in need. St. Bernard is sponsoring a project for affordable 
housing in the community. The hospital has opened four family clinics 
in Englewood to provide safe and easy access to health care for 
community residents. Physicians from St. Bernard visit senior housing 
facilities on a regular basis, and the hospital has been recognized by 
Catholic Charities for its work with senior housing and health care.
  In addition, St. Bernard is the largest employer in the Englewood 
area. When the hospital faces a crisis, many jobs in the community are 
placed at risk.
  Even though the health of Englewood relies on this hospital, St. 
Bernard almost had to close its doors in 1992. Even after aggressive 
recruitment efforts, the hospital was unable to attract enough health 
care professionals to maintain its services. The hospital was 
especially in need of registered nurses.
  The problem had been solved in part by hiring foreign nurses through 
the H(1)(a) visa program. The hospital had gone through great lengths 
to hire domestic nurses, and was using the h(1)(a) program only as a 
last alternative to closing its doors.
  In the first half of 1997, for example, the hospital placed want ads 
in the Chicago Tribune and received approximately 200 responses. 
However, almost 75 percent of the respondents declined to interview 
when they learned where the hospital was located. St. Bernard has also 
tried to hire nurses through nurse registries. However, the rates of 
the registries would cost the hospital more than $2 million each year, 
an unsustainable expense for an already financially burdened hospital.
  Clearly, the H(1)(a) visa program had been offering St. Bernard a way 
to maintain its service to the community when no other option was 
available. This past fall, even that option was eliminated.

  My measure, the Nursing Relief Act, will ensure that hospitals like 
St. Bernard can keep their doors open to the public and continue to 
support their community. In addition, however, my bill has been 
designed to protect the jobs of domestic nurses and to ensure that 
hospitals use the visa program faithfully and only as a last resort 
solution.
  I have therefore drafted the Nursing Relief Act to be more narrowly 
targeted than the old H(1)(a) visa program. My measure ensures that 
nurses can only be brought into the United States by hospitals that 
have no other alternative. In short, we have made every effort to 
ensure that no American nurse will lose his or her job as a result of 
my bill. While we want to assure that these hospitals have an adequate 
nursing staff, we must also guarantee that foreign nurses are not 
taking away jobs from domestic nurses.
  Let me tell you what my bill does:
  It establishes a nonimmigrant classification for nurses in health 
professional shortage areas. The program provides non-immigrant visas 
for 500 nurses each year to work in hospitals where there are severe 
nursing shortages.
  The Nursing Relief Act protects the jobs of domestic nurses in three 
separate ways:
  First, my measure requires that a hospital must certify that it has 
gone through great lengths to hire and retain domestic nurses before it 
can use this visa program to hire nonimmigrant nurses.
  Second, my measure requires that nonimmigrant nurses must be paid the 
same wages and work under the same conditions as domestic nurses. In 
addition, nonimmigrant nurses cannot be hired in order to disrupt the 
activities of labor unions. These provisions ensure that hospitals 
cannot undercut the working conditions of domestic nurses.
  And third, my measure limits the number of nonimmigrant nurses who 
may enter the United States in any given year. The Act provides spaces 
for only 500 nonimmigrants each year, and it caps the number of nurses 
who may enter each state.
  In addition, the Nursing Relief Act provides for serious penalties 
for abuse, thus ensuring that hospitals will not misuse this new visa 
category. Moreover, my bill guarantees that hospitals use this program 
faithfully by narrowly defining the hospitals which are eligible. In 
order to hire nonimmigrant nurses through this visa program, hospitals 
must fulfill four strict requirements:
  First, the hospital must be located in an area which has been defined 
by the Department of Health and Human Services as having a shortage of 
health care professionals.
  Second, the hospital must have at least 190 acute care beds.
  Third, the hospital must have at least 35 percent of its in-patient 
days reimbursed by Medicare.
  Fourth, the hospital must have at least 28 percent of its in-patient 
days reimbursed by Medicaid.
  All of these measures ensure that the Nursing Relief Act will serve 
as a relief to our communities rather than a loophole in the 
immigration laws.
  Thank you, Mr. President, for the opportunity to introduce this 
important and very timely initiative. I hope that my colleagues will 
join me and support the Nursing Relief for Disadvantaged Areas Act of 
1998 so that every hospital can maintain an adequate nursing staff 
regardless of its location.
  Mr. President, I ask unanimous consent that a copy of the legislation 
be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2210

       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 ``Nursing Relief for 
     Disadvantaged Areas Act of 1998.''

     SECTION 2. REQUIREMENTS FOR ADMISSION OF NON-IMMIGRANT NURSES 
                   IN HEALTH PROFESSIONAL SHORTAGE AREA DURING 4-
                   YEAR PERIOD.

       (a) Establishment of a New Nonimmigrant Classification for 
     Nonimmigrant Nurses in Health Professional Shortage Areas--
     Section 101(a)(15)(H)(i) of the Immigration and Nationality 
     Act (8 U.S.C. 1101(a)(15)(H)(i)) is amended by striking ``; 
     or'' at the end and inserting the following: ``, or (c) who 
     is coming temporarily

[[Page S7015]]

     to the United States to perform services as a registered 
     nurse, who meets the qualifications described in section 
     212(m)(1), and with respect to whom the Secretary of Labor 
     determines and certifies to the Attorney General that an 
     unexpired attestation is on file in effect under section 
     212(m)(2) for the facility (as defined in section 212(m)(6)) 
     for which the alien will perform the services; or''
       (b) Requirements--Section 212(m) of the Immigration and 
     Nationality Act (8 U.S.C. 1182(m)) is amended to read as 
     follows:
       ``(m)(1) The qualifications referred to in section 
     101(a)(15)(H)(i)(c), with respect to alien who is coming to 
     the United States to perform nursing services for a facility, 
     are that the alien--
       ``(A) has obtained a full and unrestricted license to 
     practice professional nursing in the country where the alien 
     obtained nursing education or has received nursing education 
     in the United States;
       ``(B) has passed an appropriate examination (recognized in 
     regulations promulgated in consultation with the Secretary of 
     Health and Human Services) or has a full and unrestricted 
     license under State law to practice professional nursing in 
     the State of intended employment; and
       ``(C) is fully qualified and eligible under the laws 
     (including such temporary or interim licensing requirements 
     which authorize the nurse to be employed) governing the place 
     of intended employment to engage in the practice of 
     professional nursing as a registered nurse immediately upon 
     admission to the United States and is authorized under such 
     laws to be employed by the facility.
       ``(2)(A) The attestation referred to in section 
     101(a)(15)(H)(i)(c), with respect to a facility for which an 
     alien will perform services, is an attestation as to the 
     following:
       ``(i) The facility meets all the requirements of paragraph 
     (6).
       ``(ii) The employment of the alien will not adversely 
     affect the wages and working conditions of registered nurses 
     similarly employed.
       ``(iii) The alien employed by the facility will be paid the 
     wage rate for registered nurses similarly employed by the 
     facility.
       ``(iv) The facility has taken and is taking timely and 
     significant steps designed to recruit and retain sufficient 
     registered nurses who are United States citizens or 
     immigrants who are authorized to perform nursing services, in 
     order to remove as quickly as reasonably possible the 
     dependence of the facility on nonimmigrant registered nurses.
       ``(v) There is not a strike or lockout in the course of a 
     labor dispute, the facility has not laid off registered 
     nurses within the previous year other than termination for 
     cause, and the employment of such an alien is not intended or 
     designed to influence an election for a bargaining 
     representative for registered nurses of the facility.
       ``(vi) At the time of the filing of the petition for 
     registered nurses under section 101(a)(15)(H)(i)(c), notice 
     of the filing has been provided by the facility to the 
     bargaining representative of the registered nurses at the 
     facility or, where there is no such bargaining 
     representative, notice of the filing has been provided to 
     the registered nurses employed at the facility through 
     posting in conspicuous locations.
       ``(vii) The facility will not, at any time, employ a number 
     of aliens issued visas or otherwise provided nonimmigrant 
     status under section 101(a)(15)(H)(i)(c) that exceeds 33 
     percent of the total number of registered nurses employed by 
     the facility.
       ``(viii) The facility will not, with respect to any alien 
     issued a visa or otherwise provided non-immigrant status 
     under section 101(a)(15)(H)(i)(c)--
       ``(I) authorize the alien to perform nursing services at 
     any worksite other than a worksite controlled by the 
     facility; or
       ``(II) transfer the place of employment of the alien from 
     one worksite to another.

     Nothing in clause (iv) shall be construed as requiring a 
     facility to have taken significant steps described in such 
     clause before the date of the enactment of the Health 
     Professional Shortage Area Nursing Relief Act of 1998. A copy 
     of the attestation shall be provided, within 30 days of the 
     date of filing, to registered nurses employed at the facility 
     on the date of the filing.
       ``(B) For purposes of subparagraph (A)(iv), each of the 
     following shall be considered a significant step reasonably 
     designed to recruit and retain registered nurses:
       ``(i) Operating a training program for registered nurses at 
     the facility or financing (or providing participation in) a 
     training program for registered nurses elsewhere.
       ``(ii) Providing career development programs and other 
     methods of facilitating health care workers to become 
     registered nurses.
       ``(iii) Paying registered nurses wages at a rate higher 
     than currently being paid to registered nurses similarly 
     employed in the geographic area.
       ``(iv) Providing adequate support services to free 
     registered nurses from administrative and other non-nursing 
     duties.
       ``(v) Providing reasonable opportunities for meaningful 
     salary advancement by registered nurses.

     The steps described in this subparagraph shall not be 
     considered to be an exclusive list of the significant steps 
     that may be taken to meet the conditions of subparagraph 
     (A)(iv). Nothing in this subparagraph shall require a 
     facility to take more than one step if the facility can 
     demonstrate, and the Attorney General determines, that taking 
     a second step is not reasonable.
       ``(C) Subject to subparagraph (E), an attestation under 
     subparagraph (A)--
       ``(i) shall expire on the date that is the later of
       ``(I) the end of the one-year period beginning of the date 
     of its filing with the Secretary of Labor; or
       ``(II) the end of the period of admission under section 
     101(a)(15)(H)(i)(c) of the last alien with respect to whose 
     admission it was applied (in accordance with clause (ii)); 
     and
       ``(ii) shall apply to petitions filed during the one-year 
     period beginning on the date of its filing with the Secretary 
     of Labor if the facility states in each such petition that it 
     continues to comply with the conditions in the attestation.
       ``(D) A facility may meet the requirements under this 
     paragraph with respect to more than one registered nurse in a 
     single petition.
       ``(E)(i) The Secretary of Labor shall compile and make 
     available for public examination in a timely manner in 
     Washington, D.C., a list identifying facilities which have 
     filed petitions for nonimmigrants under section 
     101(a)(15)(H)(i)(c) and, for each such facility, a copy of 
     the facility's attestation under subparagraph (A) (and 
     accompanying documentation) and each such petition filed by 
     the facility.
       ``(ii) The Secretary of Labor shall establish a process, 
     including reasonable time limits, for the receipt, 
     investigation, and disposition of complaints respecting a 
     facility's failure to meet conditions attested to or a 
     facility's misrepresentation of a material fact in an 
     attestation. Complaints may be filed by any aggrieved person 
     or organization (including bargaining representatives, 
     associations deemed appropriate by the Secretary, and other 
     aggrieved parties as determined under regulations of the 
     Secretary). The Secretary shall conduct an investigation 
     under this clause if there is reasonable cause to believe 
     that a facility fails to meet conditions attested to. Subject 
     to the time limits established under this clause, this 
     subparagraph shall apply regardless of whether an attestation 
     is expired or unexpired at the time a complaint is filed.
       ``(iii) Under such process, the Secretary shall provide, 
     within 180 days after the date such a complaint is filed, for 
     a determination as to whether or not a basis exists to make a 
     finding described in clause (iv). If the Secretary determines 
     that such a basis exists, the Secretary shall provide for 
     notice of such determination to the interested parties and an 
     opportunity for a hearing on the complaint within 60 days of 
     the date of the determination.
       ``(iv) If the Secretary of Labor finds, after notice and 
     opportunity for a hearing, that a facility (for which an 
     attestation is made) has failed to meet a condition attested 
     to or that there was a misrepresentation of material fact in 
     the attestation, the Secretary shall notify the Attorney 
     General of such finding and may, in addition, impose such 
     other administrative remedies (including civil monetary 
     penalties in an amount not to exceed $1,000 per nurse per 
     violation, with the total penalty not to exceed $10,000 per 
     violation) as the Secretary determines to be appropriate. 
     Upon receipt of such notice, the Attorney General shall not 
     approve petitions filed with respect to a facility during a 
     period of at least one year for nurses to be employed by the 
     facility.
       ``(v) In addition to the sanctions provided for under 
     clause (iv), if the Secretary of Labor finds, after notice 
     and an opportunity for a hearing, that a facility has 
     violated the condition attested to under subparagraph 
     (A)(iii) (relating to payment of registered nurses at the 
     prevailing wage rate), the Secretary shall order the facility 
     to provide for payment of such amounts of back pay as may be 
     required to comply with such condition.
       ``(F)(i) The Secretary of Labor shall impose on a facility 
     filing an attestation under subparagraph (A) a filing fee, in 
     an amount prescribed by the Secretary based on the costs of 
     carrying out the Secretary's duties under this subsection, 
     but not exceeding $250.
       ``(ii) Fees collected under this subparagraph shall be 
     deposited in a fund established for this purpose in the 
     Treasury of the United States.
       ``(iii) The collected fees in the fund shall be available 
     to the Secretary of Labor, to the extent and in such amounts 
     as may be provided in appropriations Acts, to cover the costs 
     described in clause (i), in addition to any other funds that 
     are available to the Secretary to cover such costs.
       ``(3) The period of admission of an alien under section 
     101(a)(15)(H)(i)(c) shall be 3 years.
       ``(4) The total number of nonimmigrant visas issued 
     pursuant to petitions granted under section 
     101(a)(15)(H)(i)(c) in each fiscal year shall not exceed 500. 
     The number of petitions granted under section 
     101(a)(15)(H)(i)(c) for each State in each fiscal year shall 
     not exceed the following:
       ``(A) For States with populations of less than 10,000,000 
     based upon the 1990 decennial census of population, 25 
     petitions.
       ``(B) For States with populations of 10,000,000 or more, 
     based upon the 1990 decennial census of population, 50 
     petitions.
       ``(5) A facility that has filed a petition under section 
     101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform 
     nursing services for the facility.
       ``(A) shall provide the nonimmigrant a wage rate and 
     working conditions commensurate with those of nurses 
     similarly employed by the facility;

[[Page S7016]]

       ``(B) shall require the nonimmigrant to work hours 
     commensurate with those of nurses similarly employed by the 
     facility; and
       ``(C) shall not interfere with the right of the 
     nonimmigrant to join or organize a union.
       ``(6) For purposes of this subsection and section 
     101(a)(15)(H)(i)(c), the term `facility' means a subsection 
     (d) hospital (as defined in section 1886(d)(1)(B) of the 
     Social Security Act (42 U.S.C. 1395ww(d)(1)(B))) that meets 
     the following requirements;
       ``(A) As of March 31, 1997, the hospital was located in a 
     health professional shortage area (as defined in section 332 
     of the Public Health Service Act (42 U.S.C. 254e)).
       ``(B) Based on its settled cost report filed under title 
     XVIII of the Social Security Act for its costs reporting 
     period beginning during fiscal year 1994--
       ``(i) the hospital has not less than 190 licensed acute 
     care beds;
       ``(ii) the number of the hospital's inpatient days for such 
     period which were made up of patients who (for such days) 
     were entitled to benefits under part A of such title is not 
     less than 35 percent of the total number of such hospital's 
     acute care inpatient days for such period; and
       ``(iii) the number of the hospital's inpatient days for 
     such period which were made up of patients who (for such 
     days) were eligible for medical assistance under a State plan 
     approved under title XIX of the Social Security Act, is not 
     less than 28 percent of the total number of such hospital's 
     acute care inpatient days for such period.''.
       (c) Repealer.--Clause (i) of section 101(a)(15)(H) of the 
     Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)) 
     is amended by striking subclause (a).
       (d) Implementation.--Not later than 90 days after the date 
     of enactment of this Act, the Secretary of Labor (in 
     consultation, to the extent required, with the Secretary of 
     Health and Human Services) and the Attorney General shall 
     promulgate final or interim final regulations to carry out 
     section 212(m) of the Immigration and Nationality Act (as 
     amended by subsection (b)).
       (e) Limiting Application of Nonimmigrant Changes to 4-Year 
     Period.--The amendments made by this section shall apply to 
     classification petitions filed for nonimmigrant status only 
     during the 4-year period beginning on the date that interim 
     or final regulation are first promulgated under subsection 
     (d).

     SEC. 3. RECOMMENDATIONS FOR ALTERNATIVE REMEDY FOR NURSING 
                   SHORTAGE

       Not later than the last day of the 4-year period described 
     in section 2(e), the Secretary of Health and Human Services 
     and the Secretary of Labor shall jointly submit to the 
     Congress recommendations (including legislative 
     specifications) with respect to the following:
       (1) A program to eliminate the dependence of facilities 
     described in section 212(m)(6) of the Immigration and 
     Nationality Act (as amended by section 2(b)) on nonimmigrant 
     registered nurses by providing for a permanent solution to 
     the shortage of registered nurses who are United States 
     citizens or aliens lawfully admitted for permanent residence.
       (2) A method of enforcing the requirements imposed on 
     facilities under sections 101(a)(15)(H)(i)(c) and 212(m) of 
     the Immigration and Nationality Act (as amended by section 2) 
     that would be more effective than the process described in 
     section 212(m)(2)(E) of such Act (as so amended).
                                 ______
                                 
      By Mr. ASHCROFT:
  S. 2211. A bill to amend title 5, United States Code, to provide for 
Congressional Review of rules establishing or increasing taxes, and for 
other purposes; to the Committee on Governmental Affairs.


                         Taxpayer's Defense Act

 Mr. ASHCROFT. Mr. President, today I introduce the Taxpayer's 
Defense Act. Quite simply, this bill prohibits any agency from 
establishing a tax on the American people.
  Mr. President. As we all know, the United States was founded on one 
simple and fundamental principle--no taxation without representation.
  ``In the Second Treatise of Government,'' John Locke said, ``if 
anyone shall claim a power to lay and levy taxes on the people . . . 
without . . . consent of the people, he thereby . . . subverts the end 
of government.'' According to Locke, consent required agreement by a 
majority of the people, ``either by themselves or their representatives 
chosen by them.'' The Declaration of Independence listed, among the 
despotic acts of King George, his ``imposing taxes on us without our 
consent.''
  The Boston Tea Party remains the symbol of Americans' opposition to 
taxation without representation. The Constitutional authority--given 
only to Congress--to establish federal taxes is clear. Its reasoning 
also is clear. It is the Congress that represents the people. Only 
Congress considers and weighs every issue that rises to national 
importance. While Federal agencies consider their own priorities to be 
paramount, only Congress can determine which goals merit a tax on the 
American people.
  The modern era of restricted federal budgets, however, threatens to 
erode the essential principle of ``no taxation without 
representation.'' In many subtle and often hidden ways, federal 
agencies are receiving from Congress the power to tax.
  They tax by adding unnecessary charges to legitimate government user 
fees. They tax through federal mandates. These taxes pass the cost of 
government on to the American people--without their knowledge.
  The worst example of administrative taxation is the Federal 
Communications Commission's Universal Service Tax. ``Universal 
service'' is the idea that everyone should have access to affordable 
telecommunications services. It originated at the beginning of the 
century when the first national telecommunications service was still 
being created. This idea was expanded in the Telecommunications Act of 
1996, which allowed the FCC to extend universal service funds to 
provide ``discount telecommunications services'' to schools, libraries, 
and rural health care facilities.
  Most importantly, the Act gave the FCC the power to decide the level 
of ``contributions''--taxes--that telecommunications companies would 
have to pay to support universal service. The FCC now determines how 
much must be collected in taxes that subsidize a variety of `universal 
service' spending programs. Long distance providers pass the costs on 
to consumers in the form of higher telephone bills. In the first half 
of 1998, the tax was $625 million, and the Clinton Administration's 
budget projects it will rise to $10 billion per year. This 
administrative tax is already out of control.
  This is possible because Congress delegated its authority to tax. The 
FCC is able to collect taxpayer dollars at levels it sets--without 
approval from Congress or the people. The FCC can defy Congress and the 
people because it has the power to levy taxes.
  Mr. President, some people thought the tax and spend liberals had 
left Washington. Not so. Washington interest groups who want to feed at 
this new federal trough already are geared up to accuse the Republican 
Congress of cutting funding for education and health care if any 
attempt is made to rein in the FCC. They will frame the issue as a 
matter of federal entitlements for sympathetic causes and groups.
  The most sympathetic group is the American taxpayer, whose money is 
being taken, laundered through the Washington bureaucracy, and returned 
for purposes set by unelected Washington Bureaucrats. This is why the 
FCC must be required to get the approval of Congress before setting 
future tax rates.
  Should tax dollars be used for federal universal service programs and 
what amounts or should Americans spend what they earn on their own, 
real, local priorities? Requiring Congress to review any administrative 
taxes would answer this question.
  My bill would create a new section to the Congressional Review Act 
for mandatory review of certain agency rules. Any rule that establishes 
or raises a tax would have to be submitted to and receive the approval 
of Congress before taking effect. In essence, the Act would disable 
agencies from setting taxes, but would allow them to formulate 
proposals under existing rulemaking procedures.
  Once submitted to Congress, a taxing regulation would be introduced 
in both the House and Senate by the Majority Leader. The rule would 
then be subject to expedited procedures, allowing a prompt decision on 
whether or not to approve a rule. The rule would have to be approved by 
both Houses and signed by the President.
  Congress must not allow a federal agency--unelected and unaccountable 
federal bureaucrats--to determine the amount of taxes hardworking 
Americans must pay. The Taxpayer's Defense Act will require Congress to 
stand up and face the American people when it decides to tax. The cry 
of ``no taxation without representation'' has gone up in the land 
before, and today we are hearing it again. It is time that we 
respond.
                                 ______
                                 
      By Mr. FRIST (for himself, Mr. Wyden, Mr. Kerrey, Mr.

[[Page S7017]]

        DeWine, Mr. Glenn, Mr. Kempthorne, Mr. Ford, Mr. Helms, Mr. 
        Grassley, Mr. Roth, Ms. Collins, and Mr. Smith of Oregon):
  S. 2213. A bill to allow all States to participate in activities 
under the Education Flexibility Partnership Demonstration Act; to the 
Committee on Labor and Human Resources.


              the education flexibility amendments of 1998

 Mr. FRIST. Mr. President, today I introduce, with my colleague 
from Oregon, Senator Wyden, the Education Flexibility Amendments of 
1998. This bipartisan measure will expand the immensely popular and 
highly successful Ed-Flex program to all 50 states in the country. As 
you may know, Ed-Flex is currently a demonstration program, available 
only to 12 states. Under the Frist-Wyden bill, all states would be 
allowed to participate in the program and the 12 original states would 
be permitted to expand Ed-Flex waiver authority to include programs 
under the Adult Education and Technology for Education Acts.
  As the Chairman of the Senate Budget Committee Task Force on 
Education, formed by Budget Chairman Pete Domenici, I heard first-hand 
accounts of the success of the Ed-Flex program and the need for 
flexibility for our states that are overburdened by federal 
requirements. The Commissioner of the Florida Department of Education, 
Frank Brogan, told the Task Force that it takes 297 state employees to 
oversee and administer $1 billion in federal funds. In contrast, only 
374 employees oversee approximately $7 billion in state funds. Thus, it 
takes six times as many people to administer a federal dollar as a 
state dollar.
  Brogan went on to say:

       We at the State and Local level feel the crushing burden 
     caused by too many Federal regulations, procedures, and 
     mandates. Florida spends millions of dollars every year to 
     administer inflexible, categorical Federal programs that 
     divert precious dollars away from raising student 
     achievement.

  This must change.
  Secretary Riley told the Task Force that, ``through our Ed-Flex 
demonstration initiative, we are giving State-level officials broad 
authority to waive federal requirements that present an obstacle to 
innovation in their schools.'' The Department of Education further 
notes, `` Ed-Flex can help participating states and local school 
districts use federal funds in ways that provide maximum support for 
effective school reform based on challenging academic standards for all 
students.''
  The National Governors Association has expressed its strong support 
for the expansion of Ed-Flex. At the NGA Winter Meeting, the Governors 
expressed their interest in expanding Ed-Flex to all 50 states. At this 
same meeting, President Clinton also expressed his support for Ed-Flex 
expansion.
  I pose the following question to my colleagues: who isn't for 
expanding Ed-Flex?
  Numerous articles have highlighted the innovative reform efforts 
underway in the Chicago Public School System and have extolled its 
early successes. Illinois is an Ed-Flex state. Cozette Buckney of the 
Chicago School System attributes much of the Chicago success to 
flexibility--the very flexibility offered to states and localities by 
Ed-Flex. She pleaded, ``Let us be accountable to you for getting the 
results, but give us the flexibility to do it the way that works best 
for us.''
  According to other Chicago officials:

       One of the frustrating things with Federal assistance that 
     has come in through this process is we oftentimes find our 
     way saying how can we do what we want to do and how can we 
     use federal funding so that we can make sure that it is 
     happening. Most of our initiatives are locally based, locally 
     funded, locally developed by people who have been working in 
     Chicago for many years. We know the system, and we believe we 
     know the things that it needs to have happen in order to 
     improve. So the more flexibility that we have with federal 
     and states funds, the easier it is to make those changes.

  During another Education Task Force hearing, we heard from Texas that 
they have granted over 4,000 waivers, largely to streamline the 
paperwork associated with administering and applying for the various 
federal programs. According to Texas Education Official Madeleine 
Manigold:

       Ed-Flex has allowed Texas to foster the coordination of 
     programs and streamlining of administration of programs that 
     are actually operated by the United States Department of 
     Education, while maintaining the underlying purpose of the 
     covered federal programs.

  Rest assured, though I support the concept of block grants to states 
as a means to achieve even greater flexibility, Ed-Flex expansion is 
NOT a block grant proposal. States may NOT pool funds from various 
federal education programs, and they must ensure that the underlying 
purposes of the program in question will continue to be met. Ed-Flex 
simply allows states some relief from the burgeoning mass of 
bureaucratic federal regulations and requirements in administering 
designated federal education programs.
  It's time to bring some common sense to education reform. Ed-Flex is 
a good first step toward granting states and localities more 
flexibility in using federal funds in the most effective and efficient 
way possible. Our states and localities are the engines of change--
let's give all of our states the freedom and capability to meet the 
challenges of education with innovation and creativity.
  Mr. President, I believe that passage of this legislation is a strong 
first step for improving our public education system. Let's give states 
and localities the flexibility that they need to address the many needs 
of our students. I strongly urge passage of this bill. Mr. President, I 
unanimous consent that a letter of support from the National Governors' 
Association be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:
         National Governors' Association, National Conference of 
           State Legislatures
                                                    June 18, 1998.
     Hon. Bill Frist,
     Hon. Ron Wyden,
     United States Senate, Washington, D.C.
       Dear Senators Frist and Wyden: We write on behalf of the 
     nation's Governors and state legislatures to express our 
     strong support for your efforts in the Senate to expand the 
     highly successful Ed-Flex demonstration program to all fifty 
     states during this Congress. States that participate in Ed-
     Flex have found that this program has been helpful in moving 
     education reform forward in the 12 states that currently 
     participate. Under the Wyden-Frist proposal, states currently 
     participating in Ed-Flex would receive additional waiver 
     authority and the bill would permit all states to become Ed-
     Flex states. We strongly support the expansion of this 
     successful program.
       While Ed-Flex is perceived to be a positive program because 
     it provides states with greater flexibility, some members of 
     Congress have questioned whether there are immediate benefits 
     that Ed-Flex can provide to states. Some members have 
     suggested a delay in expanding the Ed-Flex program to all 
     fifty states until Congress reauthorizes the elementary and 
     secondary programs in the next Congress. We know that this 
     program has helped states and schools by giving them some 
     limited waiver authority. With experiences of the 12 current 
     Ed-Flex states as evidence, we know that the adverse 
     predictions made about the Ed-Flex program when it was 
     originally created have not materialized. With the Secretary 
     of Education's guidance, this program has helped states and 
     school districts do a better job. We need Ed-Flex now.
       By expanding Ed-Flex during this congress, all states would 
     have the opportunity to identify and waive regulations, and 
     in the process, identify aspects of the statutes and the 
     regulations that need to be changed or eliminated when the 
     elementary and secondary education bills are reauthorized 
     next year.
       We applaud your current efforts and look forward to working 
     with you toward the enactment of this legislation.
           Sincerely,
     Governor George V. Voinovich,
       Chair, National Governors' Association.
     Governor Thomas R. Carper,
       Vice Chair, National Governors' Association.
     Donna Sytek,
       Speaker, New Hampshire House of Representatives,
     Chair, National Conference of State Legislatures Assembly on 
                                                   Federal Issues.
     Linda Furney,
                            Assistant Minority Leader, Ohio Senate
     Chair, National Conference of State Legislatures Committee on 
                        Education, Labor and Job Training.
 Mr. WYDEN. Mr. President, I join together with Senator Frist 
and ten other colleagues today to introduce bipartisan education reform 
legislation, based on a simple proposition: the federal government 
should liberate schools from the federal government's mandated 
bureaucratic water torture in return for schools committing to improve 
student performance. This bill is an invitation to innovation, an 
opportunity to develop home grown, locally

[[Page S7018]]

driven solutions to Americans biggest education challenges.
  This legislation would empower states to get out from under 
burdensome federal education regulations, by expanding the enormously 
popular ``Ed-Flex'' demonstration program--in which 12 states already 
participate--into a nationwide effort. Ed-Flex is the program that 
allows states to waive out of certain federal regulations if they come 
up with a plan to show how they can do a better job. A State has to 
waive their own set of education regulations, develop high academic 
standards for their students and hold schools accountable for results.
  Here is a brief example of how Ed-Flex works: In the past, federal 
funds have allowed schools to purchase computers for students with 
disabilities, but the rules prevented others from using the equipment 
when the students weren't using it. So in an Oregon school district, in 
return for committing to using the idle computers to improve adult 
education, the State got a waiver to use the computer for this extra 
use as well as for the disabled students.
  Ohio uses a teacher training program that, without a waiver, can only 
be used to train teachers in math and science. Ohio wanted to use it 
where the greatest academic need is. They now have an Ed-Flex waiver 
and can tailor their teacher training program to the needs of the 
students, not to the needs of the federal government. In exchange, Ohio 
will have better prepared teachers in the classroom to help students 
improve in those areas.
  My state also uses Ed-Flex to allow school districts to team up with 
community colleges to better prepare kids to go into the workforce. 
Using the Carl Perkins Vocational and Applied Technology Act program, 
Oregon students can earn college credit or learn a practical skill 
without worrying about whether a credit will transfer or if they have 
to file several different pieces of paperwork.
  And even more kids will be able to benefit if we can expand Ed-Flex 
to allow school districts to streamline bureaucracies even further and 
eliminate waste. The bill Senator Frist and I are introducing today 
will expand Ed-Flex from a pilot program in just a few states to every 
place from Maine to Honolulu. The bill will also provide a unique 
opportunity for current Ed-Flex states to experience more flexibility 
in their adult literacy and educational technology programs.
  Let me give you an example of how the new flexibility will benefit my 
state. According to the National Adult Literacy Survey, Oregon has one 
of the highest literacy levels in the country. In fact, 75 percent of 
Oregonians have basic reading skills; that is, they can proficiently 
read, write and speak in English, whereas 55 percent of all adults in 
the nation achieved that level. Yet, for Oregonians, less than 100 
percent is not good enough. We want all of our adults to have basic 
literacy skills. Under the Adult Education Act, a State can only use 20 
percent of the funds to prepare people to make high school equivalency 
tests. That may work for a state that has a very low literacy level, 
but it does not work for Oregon.
  Oregon would like to develop a waiver to use the funds to help all 
illiterate or semi-literate adults earn a GED (general education 
development) or other high school equivalency measure. The more people 
with a GED, the more valuable our workforce becomes. Under our Ed-Flex 
bill, Oregon would be eligible to apply for that waiver.
  Mr. President, this bill grows out of the work of the Senate Budget 
Committee's Education Task Force, which Senator Frist chaired, and on 
which I served. Together, in hearing after hearing, we listened to 
States tell us that they can do a better job. They said they could 
balance flexibility and accountability and they we ready to be judged 
by results, not process. We know as well that Ed-Flex has strong 
support from the Administration, and our bill has strong bipartisan 
support in the Senate and from the National Governors Association.
  Oregon was the first state to participate in Ed-Flex, and people in 
Oregon are convinced that regulatory flexibility and school 
accountability work. It is time to expand that approach 
nationwide.

                          ____________________