[Congressional Record Volume 144, Number 106 (Friday, July 31, 1998)]
[Senate]
[Pages S9602-S9604]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          AMENDMENTS SUBMITTED

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              RICKY RAY HEMOPHILIA RELIEF FUND ACT OF 1998

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                      JEFFORDS AMENDMENT NO. 3483

  (Ordered referred to the Committee on Labor and Human Resources.)
  Mr. JEFFORDS submitted an amendment intended to be proposed by him to 
the bill (H.R. 1023) to provide for compassionate payments with regard 
to individuals with blood-clotting disorders, such as hemophilia, who 
contracted human immunodeficiency virus due to contaminated blood 
products, and for other purposes.

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Ricky Ray 
     Hemophilia Relief Fund Act of 1998''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.

                    TITLE I--HEMOPHILIA RELIEF FUND

Sec. 101. Ricky Ray Hemophilia Relief Fund.
Sec. 102. Compassionate payment.
Sec. 103. Determination and payment.
Sec. 104. Limitation on transfer of rights and number of petitions.
Sec. 105. Time limitation.
Sec. 106. Certain claims not affected by payment.
Sec. 107. Limitation on agent and attorney fees.
Sec. 108. Definitions.

     TITLE II--TREATMENT OF CERTAIN PRIVATE SETTLEMENT PAYMENTS IN 
  HEMOPHILIA-CLOTTING-FACTOR SUIT UNDER THE MEDICAID AND SSI PROGRAMS

Sec. 201. Treatment of certain private settlement payments in 
              hemophilia-clotting-factor suit under the Medicaid and 
              SSI programs.

                    TITLE I--HEMOPHILIA RELIEF FUND

     SEC. 101. RICKY RAY HEMOPHILIA RELIEF FUND.

       (a) Establishment.--There is established in the Treasury of 
     the United States a trust fund to be known as the ``Ricky Ray 
     Hemophilia Relief Fund'', which shall be administered by the 
     Secretary of the Treasury.
       (b) Investment of Amounts in Fund.--Amounts in the Fund 
     shall be invested in accordance with section 9702 of title 
     31, United States Code, and any interest on and proceeds from 
     any such investment shall be credited to and become part of 
     the Fund.
       (c) Availability of Fund.--Amounts in the Fund shall be 
     available only for disbursement by the Secretary of Health 
     and Human Services under section 103.
       (d) Termination.--The Fund shall terminate upon the 
     expiration of the 5-year period beginning on the date of the 
     enactment of this Act. If all of the amounts in the Fund have 
     not been expended by the end of the 5-year period, 
     investments of amounts in the Fund shall be liquidated, the 
     receipts of such liquidation shall be deposited in the Fund, 
     and all funds remaining in the Fund shall be deposited in the 
     miscellaneous receipts account in the Treasury of the United 
     States.
       (e) Authorization of Appropriations.--There is authorized 
     to be appropriated to the Fund to carry out this title 
     $1,771,400,000.

     SEC. 102. COMPASSIONATE PAYMENT.

       (a) Eligible Individuals.--
       (1) In general.--If the conditions described in subsection 
     (b) are met and if there are sufficient amounts in the Fund 
     to make the payment involved, the Secretary shall make a 
     single payment of $100,000 from the Fund to any individual--
       (A) who--
       (i) has an HIV infection; or
       (ii) is diagnosed with AIDS; and
       (B) who is described in paragraph (2).
       (2) Requirement.--An individual described in this paragraph 
     is any of the following individuals:
       (A) An individual who--
       (i) has any form of blood-clotting disorder, such as 
     hemophilia, and was treated with antihemophilic factor at any 
     time during the period beginning on July 1, 1982, and ending 
     on December 31, 1987; or
       (ii) was treated with HIV contaminated blood transfusion, 
     HIV contaminated blood components, or HIV contaminated human 
     tissue during the period beginning on January 1, 1982, and 
     ending on March 31, 1985.
       (B) An individual who--
       (i) is the lawful spouse of an individual described in 
     subparagraph (A); or
       (ii) is the former lawful spouse of an individual described 
     in subparagraph (A) and was the lawful spouse of the 
     individual at any time after a date, within the applicable 
     period described in such subparagraph, on which the 
     individual was treated as described in such paragraph and 
     through medical documentation can assert reasonable certainty 
     of transmission of HIV from the individual described in such 
     subparagraph.
       (C) The individual acquired the HIV infection through 
     perinatal transmission from a parent who is an individual 
     described in subparagraph (A) or (B).
       (b) Conditions.--The conditions described in this 
     subsection are, with respect to an individual, as follows:
       (1) Submission of medical documentation.--The individual 
     submits to the Secretary written medical documentation that--
       (A) the individual has (or had) an HIV infection; and
       (B)(i) in the case of an individual described in subsection 
     (a)(2)(A)(i), that the individual has (or had) a blood-
     clotting disorder, such as hemophilia, and was treated as 
     described in such section; and
       (ii) in the case of an individual described in subsection 
     (a)(2)(A)(ii), the individual was treated with HIV 
     contaminated blood transfusion, HIV contaminated blood 
     components, or HIV contaminated human tissue provided by a 
     medical professional during the period described in such 
     subsection.
       (2) Petition.--A petition for the payment is filed with the 
     Secretary by or on behalf of the individual.
       (3) Determination.--The Secretary determines, in accordance 
     with section 103(b), that the petition meets the requirements 
     of this title.

     SEC. 103. DETERMINATION AND PAYMENT.

       (a) Establishment of Filing Procedures.--The Secretary of 
     Health and Human Services shall establish procedures under 
     which individuals may submit petitions for payment under this 
     title.
       (b) Determination.--For each petition filed under this 
     title, the Secretary shall determine whether the petition 
     meets the requirements of this title.
       (c) Payment.--
       (1) In general.--To the extent there are sufficient amounts 
     in the Fund to cover each payment, the Secretary shall pay, 
     from the Fund, each petition that the Secretary determines 
     meets the requirements of this title in the order received.
       (2) Payments in case of deceased individuals.--
       (A) In general.--In the case of an individual referred to 
     in section 102(a)(1)(A)(ii) who is deceased at the time that 
     payment is made under this section on a petition filed by or 
     on behalf of the individual, the payment shall be made as 
     follows:
       (i) If the individual is survived by a spouse who is living 
     at the time of payment, the payment shall be made to such 
     surviving spouse.
       (ii) If the individual is not survived by a spouse 
     described in clause (i), the payment shall be made in equal 
     shares to all children of the individual who are living at 
     the time of the payment.
       (iii) If the individual is not survived by a person 
     described in clause (i) or (ii), the payment shall be made in 
     equal shares to the parents of the individual who are living 
     at the time of payment.
       (iv) If the individual is not survived by a person 
     described in clause (i), (ii), or (iii), the payment shall 
     revert back to the Fund.
       (B) Filing of petition by survivor.--If an individual 
     eligible for payment under section 102(a) dies before filing 
     a petition under this title, a survivor of the individual may 
     file a petition for payment under this title on behalf of the 
     individual if the survivor may receive payment under 
     subparagraph (A).
       (C) Definitions.--For purposes of this paragraph:
       (i) The term ``spouse'' means an individual who was 
     lawfully married to the relevant individual at the time of 
     death.
       (ii) The term ``child'' includes a recognized natural 
     child, a stepchild who lived with the relevant individual in 
     a regular parent-child relationship, and an adopted child.
       (iii) The term ``parent'' includes fathers and mothers 
     through adoption.
       (3) Timing of payment.--The Secretary may not make a 
     payment on a petition

[[Page S9603]]

     under this title before the expiration of the 120-day period 
     beginning on the date of the enactment of this Act or after 
     the expiration of the 5-year period beginning on the date of 
     the enactment of this Act.
       (d) Action on Petitions.--The Secretary shall complete the 
     determination required by subsection (b) regarding a petition 
     not later than 120 days after the date the petition is filed 
     under this title.
       (e) Humanitarian Nature of Payment.--This Act does not 
     create or admit any claim of or on behalf of the individual 
     against the United States or against any officer, employee, 
     or agent thereof acting within the scope of employment or 
     agency that relate to an HIV infection arising from treatment 
     described in section 102(a)(2). A payment under this Act 
     shall, however, when accepted by or on behalf of the 
     individual, be in full satisfaction of all such claims by or 
     on behalf of that individual.
       (f) Administrative Costs Not Paid From Fund.--No costs 
     incurred by the Secretary in carrying out this title may be 
     paid from the Fund or set off against, or otherwise deducted 
     from, any payment made under subsection (c)(1).
       (g) Termination of Duties of Secretary.--The duties of the 
     Secretary under this section shall cease when the Fund 
     terminates.
       (h) Treatment of Payments Under Other Laws.--A payment 
     under subsection (c)(1) to an individual--
       (1) shall be treated for purposes of the Internal Revenue 
     Code of 1986 as damages described in section 104(a)(2) of 
     such Code;
       (2) shall not be included as income or resources for 
     purposes of determining the eligibility of the individual to 
     receive benefits described in section 3803(c)(2)(C) of title 
     31, United States Code, or the amount of such benefits, and 
     such benefits shall not be secondary to, conditioned upon 
     reimbursement from, or subject to any reduction because of 
     receipt of, any such payment; and
       (3) shall not be treated as a third party payment or 
     payment in relation to a legal liability with respect to such 
     benefits and shall not be subject (whether by subrogation or 
     otherwise) to recovery, recoupment, reimbursement, or 
     collection with respect to such benefits (including the 
     Federal or State governments or any entity that provides such 
     benefits under a contract).
       (i) Regulatory Authority.--The Secretary may issue 
     regulations necessary to carry out this title.
       (j) Time of Issuance of Procedures.--The Secretary shall, 
     through the promulgation of appropriate regulations, 
     guidelines, or otherwise, first establish the procedures to 
     carry out this title not later than 120 days after the date 
     of the enactment of this Act.

     SEC. 104. LIMITATION ON TRANSFER OF RIGHTS AND NUMBER OF 
                   PETITIONS.

       (a) Rights Not Assignable or Transferable.--Any right under 
     this title shall not be assignable or transferable.
       (b) 1 Petition With Respect to Each Victim.--With respect 
     to each individual described in subparagraph (A), (B), or (C) 
     of section 102(a)(2), the Secretary may not make payment with 
     respect to more than 1 petition filed in respect to an 
     individual.

     SEC. 105. TIME LIMITATION.

       The Secretary may not make any payment with respect to any 
     petition filed under this title unless the petition is filed 
     within 3 years after the date of the enactment of this Act.

     SEC. 106. CERTAIN CLAIMS NOT AFFECTED BY PAYMENT.

       A payment made under section 103(c)(1) shall not be 
     considered as any form of compensation, or reimbursement for 
     a loss, for purposes of imposing liability on the individual 
     receiving the payment, on the basis of such receipt, to repay 
     any insurance carrier for insurance payments or to repay any 
     person on account of worker's compensation payments. A 
     payment under this title shall not affect any claim against 
     an insurance carrier with respect to insurance or against any 
     person with respect to worker's compensation.

     SEC. 107. LIMITATION ON AGENT AND ATTORNEY FEES.

       Notwithstanding any contract, the representative of an 
     individual may not receive, for services rendered in 
     connection with the petition of an individual under this 
     title, more than 5 percent of a payment made under this title 
     on the petition. Any such representative who violates this 
     section shall be fined not more than $50,000.

     SEC. 108. DEFINITIONS.

       For purposes of this title:
       (1) The term ``AIDS'' means acquired immune deficiency 
     syndrome.
       (2) The term ``Fund'' means the Ricky Ray Hemophilia Relief 
     Fund.
       (3) The term ``HIV'' means human immunodeficiency virus.
       (4) Unless otherwise provided, the term ``Secretary'' means 
     Secretary of Health and Human Services.

 TITLE II--TREATMENT OF CERTAIN PAYMENTS IN HEMOPHILIA-CLOTTING-FACTOR 
                       SUIT UNDER THE SSI PROGRAM

     SEC. 201. TREATMENT OF CERTAIN PAYMENTS IN HEMOPHILIA-
                   CLOTTING-FACTOR SUIT UNDER THE MEDICAID AND SSI 
                   PROGRAMS.

       (a) Private Payments.--
       (1) In general.--Notwithstanding any other provision of 
     law, the payments described in paragraph (2) shall not be 
     considered income or resources in determining eligibility 
     for, or the amount of--
       (A) medical assistance under title XIX of the Social 
     Security Act, or
       (B) supplemental security income benefits under title XVI 
     of the Social Security Act .
       (2) Private payments described.--The payments described in 
     this subsection are--
       (A) payments made from any fund established pursuant to a 
     class settlement in the case of Susan Walker v. Bayer 
     Corporation, et al., 96-C-5024 (N.D. Ill.); and
       (B) payments made pursuant to a release of all claims in a 
     case--
       (i) that is entered into in lieu of the class settlement 
     referred to in subparagraph (A); and
       (ii) that is signed by all affected parties in such case on 
     or before the later of--

       (I) December 31, 1997, or
       (II) the date that is 270 days after the date on which such 
     release is first sent to the persons (or the legal 
     representative of such persons) to whom the payment is to be 
     made.

       (b) Government Payments.--
       (1) In general.--Notwithstanding any other provision of 
     law, the payments described in paragraph (2) shall not be 
     considered income or resources in determining eligibility 
     for, or the amount of supplemental security income benefits 
     under title XVI of the Social Security Act.
       (2) Government payments described.--The payments described 
     in this subsection are payments made from the fund 
     established pursuant to section 101 of this Act.

 Mr. JEFFORDS. Mr. President, in October of last year I held a 
hearing on ``HIV/AIDS: Recent Developments and Future Opportunities.'' 
A good portion of that hearing was devoted to a discussion on the blood 
crisis of the 1980s, resulting in the HIV infection of thousands of 
Americans who trusted that the blood or blood product with which they 
were treated was safe. Witnesses at the hearing included John Williams, 
the father of a child who contracted HIV from the clotting factor and 
died at the age of 18, and Donna McCullough, a young woman who 
contracted HIV when she received a blood transfusion after a 
miscarriage. Although Ms. McCullough remains relatively healthy, she 
lost her only son to AIDS. Ms. McCullough did not know of her own 
infection until her infant son was diagnosed.
  The tragedy of the blood supply's infection has brought unbearable 
pain to families all over the country. I have heard from dozens, 
perhaps hundreds of them over the past months. As Mr. Williams 
testified, the community hit by this tragedy has found it nearly 
impossible to make recovery through the courts because of blood shield 
laws in most states that raise the burden of proof for product 
liability claims for blood and blood products. In addition, all States 
have statutes of limitations that prohibit litigation if the suit was 
not filed within a certain period of time. Other witnesses spoke of the 
stigma associated with HIV/AIDS and the hesitancy many felt to bring 
suit and thus be public about their infection.
  My heart goes out to the victims and families of this terrible 
tragedy. I sincerely hope that we will, in this Congress, bring some 
peace to these families with the passage of the Ricky Ray Hemophilia 
Relief Fund Act. The House passed this bill by voice vote on May 19, 
1998. Its companion in the Senate was introduced by Senators DeWine and 
Graham, and I have pledged to move that bill forward in my Committee.
  Sadly, the Ricky Ray bill as introduced does not include all victims 
of the blood supply crisis. I feel strongly that the bill we pass in 
the Senate must include not only hemophiliacs, but also people who 
received a blood transfusion or blood product in the course of medical 
treatment for other illnesses. Transfusion-associated AIDS victims are 
subject to the same laws that Mr. Williams mentioned. While in some 
cases individuals in this group were able to track the source of their 
infection and bring suit against the blood bank, the vast majority were 
not.
  There is the perception that most transfusion cases recovered 
millions of dollars in court, and that is simply not the case. Fewer 
than 10%--and the most credible estimates put the number at 2%--of 
transfusion cases made any financial recovery. Even among those 
transfusion cases who reached settlement the majority recovered far 
less than the reputed millions, the average settlement for transfusion 
cases is more like $40,000.
  I am introducing today an amendment to the House passed HR 1023 in 
the nature of a substitute. While the change to include transfusion 
cases increases the cost of this bill, many have

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already noted that this bill is not about money, it's about fairness. I 
urge my colleagues to join me in recognizing the terrible tragedy the 
blood supply crisis of the 1980s bestowed upon all of its 
victims.

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