[Congressional Record Volume 146, Number 118 (Thursday, September 28, 2000)]
[Senate]
[Pages S9466-S9477]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      Mr. HATCH (for himself, Mr. Lott, Mr. Nickles, Mr. Mack, Mr. 
        McCain, Mr. Grassley, Mr. Thurmond, Mr. Kyl, Mr. Abraham, Mr. 
        DeWine, Mr. Sessions, Mr. Smith of New Hampshire, Mr. Smith of 
        Oregon, Ms. Collins, Mr. Fitzgerald, Mr. Helms, Mr. Santorum, 
        Mr. Hagel, Mr. Shelby, Mr. Warner, Mr. Inhofe, Ms. Snowe, Mr. 
        Allard, Mr. Brownback, Mr. Grams, Mr. Bennett, Mr. Cochran, Mr. 
        Hutchinson, and Mr. Frist):
  S. 3130. A bill to provide for post-conviction DNA testing, to 
facilitate the exchange by law enforcement agencies of DNA 
identification information relating to felony offenders, and for other 
purposes; to the Committee on the Judiciary.


     CRIMINAL JUSTICE INTEGRITY AND LAW ENFORCEMENT ASSISTANCE ACT

  Mr. HATCH. Mr. President, in the last decade, DNA testing has become 
the most reliable forensic technique for identifying criminals when 
biological evidence of the crime is recovered. While DNA testing is 
standard in pre-trial investigations today, the issue of post-
conviction DNA testing has emerged in recent years as the technology 
for testing has improved. Because biological evidence, such as semen or 
hair from a rape, is often preserved by authorities years after trial, 
it is possible to submit preserved biological evidence for DNA testing. 
In cases that were tried before DNA technology existed, and in which 
biological evidence was preserved after conviction, post-conviction 
testing is feasible.
  While the exact number is subject to dispute, post-conviction DNA 
testing has exonerated prisoners who were convicted of crimes committed 
before DNA technology existed. In some of these cases, the post-
conviction DNA testing that exonerated a wrongly convicted person led 
to the apprehension of the actual criminal. In response to these cases, 
the Senate Judiciary Committee has examined various state post-
conviction DNA statutes, held a hearing on post-conviction DNA testing, 
and sought the expertise of federal and state prosecutors and criminal 
defense lawyers.
  To ensure that post-conviction DNA testing is available in 
appropriate cases, I, along with Senators Lott, Nickles, Mack, McCain, 
Thurmond, Grassley, Kyl, Abraham, DeWine, Sessions, R. Smith, G. Smith, 
Collins, Fitzgerald, Helms, Santorum, Hagel,

[[Page S9467]]

Shelby, Warner, Inhofe, Snowe, Allard, Brownback, Grams, Bennett, 
Cochran, T. Hutchinson, and Frist are introducing the Criminal Justice 
Integrity and Law Enforcement Assistance Act today. This Act authorizes 
post-conviction DNA testing in federal cases and encourages the States, 
through a grant program, to authorize post-conviction DNA testing in a 
consistent manner in state cases. In addition, the Act provides $60 
million in grants to help States reduce the backlog of DNA evidence to 
be analyzed and to conduct post-conviction DNA testing.
  The Criminal Justice Integrity Act was based in large part on the 
successful post-conviction DNA testing statute in Illinois. The 
Illinois statute has worked particularly well, as Illinois has the most 
post-conviction DNA exonerations in the Nation. Like the Illinois 
statute, the Criminal Justice Integrity Act authorizes post-conviction 
DNA testing only in cases in which testing has the potential to prove 
the prisoner's innocence. This standard will allow testing in 
potentially meritorious cases without wasting scarce prosecutorial and 
judicial resources on frivolous cases. It is significant that the 
Illinois statute has worked well without overburdening the State's law 
enforcement or judicial systems.
  Mr. President, given that post-conviction DNA testing is a complex 
legal issue, I would like to discuss the legal standard to obtain 
testing in the Illinois statute and in the Criminal Justice Integrity 
Act. While the Illinois statute is somewhat vague, several Illinois 
Court of Appeals decisions have interpreted the standard for obtaining 
post-conviction testing under the statute. See People v. Gholston, 697 
N.E.2d 375 (1998); People v. Dunn, 713 N.E.2d 568 (1999); People v. 
Savory, 722 N.E.2d 220 (1999). As these decisions make clear, post-
conviction testing is allowed under the Illinois statute only if the 
testing has ``the potential to establish the defendant's innocence.''
  For example, in People v. Gholston, the defendant and five companions 
were convicted of raping a woman and assaulting and robbing her two 
male companions in 1981. In 1995, the defendant filed a motion to 
compel DNA testing of the victim's rape kit to prove that he did not 
participate in the gang rape. The trial court dismissed the motion for 
testing, and the appellate court affirmed.
  In affirming the denial of testing, the court ruled that a ``negative 
DNA match would not exculpate defendant Gholston due to the multiple 
defendants involved, the lack of evidence regarding ejaculation by the 
defendant Gholston and defendant's own admission of guilt under a 
theory of accountability.'' Id. at 379.
  In People v. Dunn, the defendant was convicted in 1979 of a rape in 
which there was only one attacker. The defendant petitioned for post-
conviction relief, and the trial court dismissed the petition. On 
appeal, the court remanded the motion to determine whether post-
conviction testing was appropriate under the Illinois statute.
  In remanding the motion, the court distinguished the facts in Dunn 
from Gholston, noting that post-conviction testing was denied in 
Gholston because ``the test results could not have been conclusive of 
defendant's guilt or innocence.'' Id. at 571. Under the facts in Dunn, 
the court held that the decision in Gholston would not prevent post-
conviction testing ``where DNA testing would be determinative'' of 
guilt or innocence. Id. The court remanded the motion to the trial 
court to determine ``whether any conclusive result is obtainable from 
DNA testing.'' Id.
  The most extensive discussion of the standard for obtaining post-
conviction testing under the Illinois statute occurred in People v. 
Savory. In Savory, the defendant was convicted of stabbing two people 
to death in 1977. In 1998, the defendant sought DNA testing of 
bloodstained pants that were recovered from his home. The trial court 
denied the motion for DNA testing, and the appeals court affirmed.
  The court held that DNA testing on the bloodstained pants could not 
exonerate the defendant because a negative DNA match could merely 
indicate that the defendant did not wear those pants during the 
murders. At trial, Savory's father testified that the pants were his 
and that he, not the defendant, was responsible for the bloodstains. In 
addition, there was other, overwhelming evidence of the defendant's 
guilt.
  The court in Savory noted that in Gholston, post-conviction testing 
was denied because ``DNA testing could not conclusively establish 
defendant's guilt or innocence.'' In discussing the Illinois statute, 
the court stated:

       Based on the plain language of [the Illinois statute] and 
     on the interpretation of [the statute] in Gholston and Dunn, 
     we believe that the legislature intended to provide a 
     process of total vindication . . . [I]n using the term 
     ``actual innocence,'' the legislature intended to limit 
     the scope of the [Illinois statute], allowing for 
     scientific testing only where it has the potential to 
     exonerate a defendant. Id. at 224.

  Under the facts in Savory, the court denied post-conviction testing 
because ``although DNA testing carries the possibility of weakening the 
State's original case against the defendant, it does not have the 
potential to prove him innocent.'' Id. at 225.
  In short, post-conviction testing is allowed under the Illinois 
statute only where testing ``could be conclusive of the defendant's 
guilt or innocence''; only where ``DNA testing would be 
determinative''; only if ``any conclusive result is obtainable from DNA 
testing''; and only where post-conviction testing ``has the potential 
to exonerate a defendant.''
  The Criminal Justice Integrity Act has a similar legal standard to 
obtain testing. The Act authorizes testing if the prisoner makes a 
``prima facie showing'' that identity was at issue at trial and DNA 
testing would, assuming exculpatory results, establish actual 
innocence. A ``prima facie showing'' is a lenient requirement that is 
defined as ``simply a sufficient showing of possible merit to warrant a 
fuller exploration by the district court.'' See Bennett v. U.S., 119 
F.3d 468 (7th Cir. 1997). Thus, under the Criminal Justice Integrity 
Act, post-conviction testing is ordered if the prisoner makes a 
``sufficient showing of possible merit'' that identity was at issue at 
trial and DNA testing would, assuming exculpatory results, establish 
actual innocence. In other words, the Act requires a showing that post-
conviction testing has the potential to prove innocence. This is 
consistent with--and no more difficult than--the legal standard in the 
Illinois statute. If post-conviction DNA testing can establish a 
prisoner's innocence, such a prisoner can obtain testing under the 
Criminal Justice Integrity Act.
  If post-conviction DNA testing is performed and produces exculpatory 
evidence, the Criminal Justice Integrity Act allows the prisoner to 
move for a new trial based on newly discovered evidence, 
notwithstanding the time limits on such motions applicable to other 
forms of newly discovered evidence. In so doing, the Act relies on 
established judicial procedures. In addition, the Criminal Justice 
Integrity Act prohibits authorities from destroying biological evidence 
which was preserved in cases in which identity was at issue for the 
duration of the Act, and it authorizes the court to appoint counsel for 
an indigent prisoner who seeks post-conviction testing.
  Mr. President, the Criminal Justice Integrity and Law Enforcement 
Assistance Act is the only federal post-conviction DNA legislation that 
is supported by the law enforcement community. The Criminal Justice 
Integrity Act was unanimously endorsed by the bipartisan board of the 
National District Attorneys Association. In addition, the International 
Association of Chiefs of Police, the Fraternal Order of Police, and the 
National Sheriffs' Association have endorsed the bill. I am proud to 
have the support of the law enforcement community for this important 
legislation.
  In closing, I would like to note that advanced DNA testing improves 
the just and fair implementation of the death penalty. While the 
Criminal Justice Integrity Act applies both to non-capital and capital 
cases, I think the Act is especially important in death penalty cases. 
While reasonable people can differ about capital punishment, it is 
indisputable that advanced DNA testing lends support and credibility to 
the accuracy and integrity of capital cases. For example, earlier this 
year, Texas Governor George W. Bush, granted a temporary reprieve to a 
death row inmate, Ricky McGinn, to allow post-conviction DNA testing on 
evidence recovered from the victim. In 1995, McGinn was convicted of 
raping and murdering his 12-year-old stepdaughter. McGinn's lawyers had 
argued

[[Page S9468]]

that additional DNA testing could prove that McGinn did not rape the 
victim, and therefore, was not eligible for the death penalty.
  The DNA testing was recently completed, and the test results 
confirmed that McGinn raped the victim, in addition to murdering her. 
In short, as the McGinn case demonstrates, we are in a better position 
than ever before to ensure that only the guilty are executed. All 
Americans--supporters and opponents of the death penalty alike--should 
recognize that DNA testing provides a powerful safeguard in capital 
cases. We should be thankful for this amazing technological 
development.
  I ask unanimous consent that the endorsements of this legislation be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      Grand Lodge,


                                    Fraternal Order of Police,

                                    Albuquerque, NM, July 5, 2000.
     Hon. Orrin G. Hatch,
     Chairman, Senate Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: I am writing on behalf of the more than 
     290,000 members of the Fraternal Order of Police to advise 
     you of our strong support of legislation you intend to 
     introduce entitled the ``Criminal Justice integrity and Law 
     Enforcement Assistance Act.''
       Political opponents of the death penalty have renewed their 
     assault wrongly citing ``mistakes'' in the justice system 
     which leads to the execution of innocent persons. One of 
     their ploys in their effort to suspend the practice 
     indefinitely calls for post-conviction DNA testing, a 
     relative new technology. We find it very sad that political 
     considerations are intruding in such a way that real justice 
     is thwarted, not furthered.
       The FOP vehemently opposes the thinly veiled political 
     attempts to end capital punishment, like S. 2073, offered by 
     Ranking Member Patrick J. Leahy (D-VT). This legislation 
     would require expensive, post conviction testing in thousands 
     of unnecessary cases such as those in which no exculpatory 
     evidence is likely to be found. The bill places vital law 
     enforcement funds like the Community Oriented Policing 
     Services (COPS), the Edward J. Byrne and DNA Identification 
     grant programs in jeopardy by requiring all states to adopt 
     this standard. His bill would prohibit the death penalty for 
     Federal crimes committed in certain states and provide 
     Federal grants to nonprofit organizations subsidizing the 
     American Civil Liberties Union's (ACLU) representation of 
     defendants in capital cases. In essence, Senator Leahy's bill 
     is an effort to kill the death penalty.
       The legislation which you shared with us would authorize 
     post-conviction DNA testing for a thirty (30) month period 
     and only in a narrow class of cases where the identity of the 
     perpetrator was at issue during trial and, assuming 
     exculpatory results, would establish the innocence of the 
     defendant. The FOP strongly approves of the time limitation 
     because the issue of post-conviction testing involves only 
     past cases where the technology was not available. DNA 
     testing is now standard in pretrial investigations.
       Your proposed legislation would also provide $60 million to 
     the states in an effort to reduce the nationwide backlog of 
     unanalyzed DNA samples from convicted offenders and crime 
     scenes. In order to qualify for these grants, states must 
     allow post-conviction testing in a manner consistent with the 
     procedures established by this bill.
       The FOP has confidence in our nation's justice system and 
     yet recognizes that no system is ever perfect. For this 
     reason, we support a time-limited window for post-conviction 
     DNA testing in those few cases where innocence might be 
     proved.
       I want to thank you for sharing this draft with us and we 
     look forward to working with you and your staff to get this 
     legislation enacted.
           Sincerely,
                                              Gilbert G. Callegos,
     National President.
                                  ____

                                                 National District


                                        Attorneys Association,

                                  Alexandria, VA, August 16, 2000.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, Dirksen Senate Office 
         Building, Washington, DC.
       Dear Chairman Hatch: The National District Attorneys 
     Association, with over 7,000 members, represents the local 
     prosecutors of this nation. Our members try, by far, the 
     majority of criminal cases in this country and our expertise 
     in prosecuting violent criminals is second to none--as is our 
     dedication to protecting the innocent. In keeping with this 
     charge, the Board of Directors of the National District 
     Attorneys Association has voted, unanimously, to support the 
     ``Criminal Justice Integrity and Law Enforcement Assistance 
     Act,'' for which you serve as the primary sponsor.
       New technologies, such as DNA testing, can assist in 
     establishing guilt or innocence in cases when used 
     appropriately. In the application of any new technology, post 
     conviction testing must be reserved for those defendants who 
     can actually benefit from the application of the advance of 
     science and not merely raise spurious claims.
       Testing DNA, or any other scientific evidence, is costly 
     and requires trained technicians to collect the evidence, 
     conduct analyses of the samples and provide the requisite 
     records and testimony to the court. Advancing unfounded 
     demands for post conviction tests would not only delay on 
     going investigations and trials but also deny those truly 
     deserving of a reassessment of the evidence in their case a 
     timely review.
       Adhering to these principles we believe that post 
     conviction testing must be reserved for:
       defendants who have consistently maintained their 
     innocence--if the defendant has voluntarily confessed to the 
     offense or has pled guilty then they should not have the 
     requisite standing to challenge their guilt; and
       have contested the issue of identification at tiral--DNA 
     testing goes to the issue of identification, nothing else; 
     and
       who can make a prima facie showing that a favorable test 
     would demonstrate their innocence.
       The latter point is most crucial. In many cases an 
     individual can be guilty of a crime, in which DNA evidence 
     may be available, yet not have been the individual who left 
     the evidence. For instance an individual can be convicted of 
     rape by holding down a victim even though he never actually 
     has intercourse or they may never have ejaculated; in a 
     like fashion the driver of a ``get away'' car can be 
     convicted of murder even though she never enters the 
     convenience store.
       The federal government does have a vital role to play in 
     this effort to hasten appropriate post conviction relief in 
     fostering the use of DNA testing but cannot, and must not, 
     usurp state prerogatives in preserving the sanctity of their 
     respective systems of criminal justice. If post conviction 
     testing DNA evidence indicates potentially favorable results, 
     the issue should be addressed, under state criminal 
     procedures, as a timely claim of newly discovered evidence 
     and be accorded review under normal state standards.
       The legitimate role of the federal government in this 
     effort is to encourage and assist the states in developing 
     the means to conduct post conviction testing of scientific 
     evidence. Given the serious, and continuing, backlog of DNA 
     cases in particular, federal help can, and must be directed 
     towards exponential increases in the capabilities of the 
     state laboratory systems.
       Withholding critical funding or mandating how states must 
     use federal programs is counterproductive to the effort to 
     obtain viable post conviction relief. Federal assistance must 
     be devoted to permitting each state to apply resources to 
     support and reinforce their respective systems. Moreover 
     federal assistance must be incorporated, by the individual 
     states, into efforts to upgrade laboratory capabilities 
     across the board.
       To be meaningful, DNA testing, and post conviction relief 
     measures, must be truly dispositive of a defendant's guilt or 
     innocence and not merely a pretext to stymie justice--for 
     himself or others. The ``Criminal Justice Integrity and Law 
     Enforcement Assistance Act'' provides for this balance of 
     resources and we most strongly urge that it be passed by the 
     Congress.
           Sincerely,
     Robert M.A. Johnson,
       County Attorney, Ano- ka County, Minnesota, President, 
     National District Attorneys Association.
                                  ____

                                         International Association


                                          of Chiefs of Police,

                                    Alexandria, VA, June 21, 2000.
     Hon. Orrin Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: On behalf of the International 
     Association of Chiefs of Police (IACP), I am writing to 
     express our strong support for the Criminal Justice Integrity 
     and Law Enforcement Assistance Act of 2000. As you know, the 
     IACP is world's oldest and largest association of law 
     enforcement executives with more than 18,000 members in 100 
     countries.
       The use of DNA evidence represents the logical next step in 
     technological advancement of criminal investigations and is 
     in keeping with law enforcement's obligation to use the most 
     advanced and accurate methods of investigating crime and 
     proving criminal activity in a court of law. The IACP 
     strongly supports the collection and use of DNA evidence and 
     has consistently called for legislation that would promote 
     greater use of DNA technology and include funding to analyze 
     both convicted offender and crime scene DNA samples. The 
     provisions of the Criminal Justice Integrity and Law 
     Enforcement Assistance Act advance these goals.
       Currently, more than 700,000 DNA samples taken from 
     convicted felons and recovered from crime scenes remain 
     unanalyzed due to the limited resources of state and local 
     law enforcement agencies. This backlog severely threatens the 
     timeliness of quality forensic examinations that are critical 
     to solving crimes. By authorizing $60 million to assist 
     states in reducing the current backlog of DNA samples the 
     Criminal Justice Integrity and Law Enforcement Assistance Act 
     will greatly increase the ability of state and local law 
     enforcement agencies to make efficient and effective use of 
     DNA evidence.
       In addition, by limiting post conviction DNA tests to only 
     those cases where the results have the potential to 
     conclusively establish an individual's innocence of the

[[Page S9469]]

     crime for which they were convicted, this act properly 
     ensures that justice is served without burdening the court 
     system and forensic laboratories with thousands of cases.
       Thank you for your continued support of the nation's law 
     enforcement agencies. We look forward to working with you on 
     this issue of vital importance.
           Sincerely,
                                              Michael D. Robinson,
                                                        President.

  Mr. SMITH of Oregon. I am very pleased that the distinguished Senator 
from Utah has recognized the need to address the important issue of 
post-conviction DNA testing at the federal level and am proud to join 
his efforts. Senator Hatch's Criminal Justice Integrity and Law 
Enforcement Assistant Act is an excellent bill that has the strong 
support from law enforcement officials. It will provide much-needed 
funds for law enforcement authorities to analyze convicted offender DNA 
samples and DNA evidence gathered from crime scenes.
  However, it has become abundantly clear over recent years that 
funding is not the only problem in the post-conviction DNA testing 
debate. In determining guilt and innocence, our criminal justice system 
occasionally makes mistakes. It is our responsibility to take every 
reasonable measure to prevent miscarriages of justice. Perhaps the 
gravest injustice that could occur is wrongful imprisonment of an 
innocent person. Ensuring that all defendants have access to competent 
counsel would go a long way to minimize the risk of unjust 
incarceration.
  Some will say that there is no problem, or that it is so rare as to 
be negligible, or that we do not yet know the true extent of the 
problem and should not introduce legislation until we do. I strongly 
disagree. Although officers of America's courts and law enforcement 
work extremely hard to ensure that the true perpetrators of heinous 
crimes are caught and convicted, there have been errors that have sent 
innocent men to death row--innocent people like you and me who did not 
deserve to be there. While some states, like my home State of Oregon, 
work hard to ensure that defendants are represented by competent 
counsel, other states clearly do not. Without a federal standard, there 
is a real risk that innocent people tried in states without adequate 
standards for defense counsel could be unjustly incarcerated, or in 
rate cases, even sentenced to death. Setting federal standards for 
competent counsel for all defendants is a very reasonable step to make 
sure that our system of criminal justice operates fairly regardless of 
where you live.
  Senator Leahy and I have introduced the Innocence Protection Act, 
which would address the vital issue of competency of counsel, among 
other things. Although the Criminal Justice Integrity Act, as 
introduced, does not address the issue of competency of counsel, 
Senator Hatch has promised to work with me and others to consider this 
issue when any post-conviction DNA testing legislation is considered in 
the Senate. I commend Senator Hatch for his interest in this matter, 
and for his willingness to work with me to produce a bill that will 
truly make a good system even better.
  Mr. Hatch. I promise the distinguished Senator from Oregon that I 
will take up this issue in the months ahead. The issue of competency of 
counsel for indigents in state capital cases is a difficult issue for 
several reasons. First, it is not clear that this is a nationwide 
problem. For example, in Utah and Oregon, there does not appear to be a 
problem concerning the representation of indigents in capital cases. 
Second, the anecdotal examples cited in the media of poor capital 
representation occurred many years ago. For example, the death penalty 
trial of Gary Graham, which has been repeatedly mentioned in the press, 
occurred in 1981. Third, the States that seem to have a problem in this 
area recently made improvements. In 1995, Texas Governor George W. Bush 
signed legislation that provided indigent capital defendants the right 
to have two attorneys represent them at trial. Just this year, Alabama 
passed a law that compensates lawyers who represent indigents in 
capital trials at $100 per hour.
  In short, I would like to know more about the extent of this problem 
before I introduce legislation. Thankfully, the Bureau of Justice 
Statistics is releasing a comprehensive study of state indigent legal 
defense services in December. I am hopeful that this study will provide 
the information necessary to evaluate the extent of this problem. I 
look forward to working with Senator Smith in the months ahead.
                                 ______
                                 
      Mr. MURKOWSKI (for himself and Mr. Abraham):
  S. 3131. A bill to amend title XVIII of the Social Security Act to 
ensure that the Secretary of Health and Human Services provides 
appropriate guidance to physicians and other health care providers that 
are attempting to properly submit claims under the Medicare Program and 
to ensure that the Secretary targets truly fraudulent activity for 
enforcement of medicare billing regulations, rather than inadvertent 
billing errors; to the Committee on Finance.


                   medicare billing and education act

  Mr. MURKOWSKI. Mr. President, right now, all across America, Medicare 
beneficiaries are seeking medical care from a flawed health care 
system. Reduced benefit packages, ever escalating costs, and limited 
access in rural areas are just a few of the problems our system faces 
on a daily basis. For this reason, Congress must continue to move 
towards the modernization of Medicare. But as we address the needs of 
beneficiaries, we must not turn our back upon the very providers that 
seniors rely upon for their care.
  These providers are the physicians, the therapists, the nurses, and 
the allied health professionals who deliver quality care to our needy 
Medicare population. They are the backbone of our complex health care 
network. When our nation's seniors need care, it is the provider who 
heals, not the health insurer--and certainly not the federal 
government.
  But more, and more often, seniors are being told by providers that 
they don't accept Medicare. This is becoming even more common in rural 
areas, where the number of physicians and access to quality care is 
already severely limited. Quite simply, beneficiaries are being told 
that their insurance is simply not wanted. Why? Well it's not as simple 
as low reimbursement rates. In fact it's much more complex.
  The infrastructure that manages the Medicare program, the Health Care 
Financing Administration and its network of contractors, have built up 
a system designed to block care and micro-manage independent practices. 
Providers simply can't afford to keep up with the seemingly endless 
number of complex, redundant, and unnecessary regulations. And if 
providers do participate? Well, a simple administrative error in 
submitting a claim could subject them to heavy-handed audits and the 
financial devastation of their practice. Should we force providers to 
choose between protecting their practice and caring for seniors?
  I believe the answer is no. For this reason, I am introducing the 
``Medicare Billing and Education Act of 2000.'' Co-sponsored by Senator 
Abraham, this legislation will restore fairness to the Medicare system. 
It will allow providers to practice medicine without fearing the 
threats, intimidation, and aggressive tactics of a faceless 
bureaucratic machine.

  Most importantly, this bill will reform the flawed appeals process 
within HCFA. Currently, a provider charged with receiving an 
overpayment is forced to choose between three options: admit the 
overpayment, submit additional information to mitigate the charge, or 
appeal the decision. However, a provider who chooses to submit 
additional evidence must subject their entire practice to review and 
waive their appeal rights. That's right--to submit additional evidence 
you must waive your right to an appeal!
  And what is the result of this maddening system that runs contrary to 
our nation's history of fair and just administrative decisions? Often, 
providers are intimidated into accepting the arbitrary decision of an 
auditor employed by a HCFA contractor. Sometimes, they are even forced 
to pull out of the Medicare program. In the end, our senior population 
suffers.
  Under my bill, providers will be allowed to retain their appeal 
rights should they choose to first submit additional evidence to 
mitigate the charge. Many providers receive an overpayment as the 
result of a simple administrative mistake. For cases not involving 
fraud, a provider will be able

[[Page S9470]]

to return that overpayment within twelve months without fear of 
prosecution. This is a common sense approach, and will not lead to any 
additional costs to the Medicare system.
  To bring additional fairness to the system, my bill will prohibit the 
retroactive application of regulations, and allow providers to 
challenge the constitutionality of HCFA regulations. Further, it will 
prohibit the crippling recovery of overpayments during an appeal, and 
bar the unfair method of withholding valid future payments to recover 
past overpayments. These common sense measures maintain the financial 
viability of medical practices during the resolution of payment 
controversies, and restore fundamental fairness to the dispute 
resolution procedures existing within HCFA.
  Like many of our nation's problems, the key to improvement is found 
in education. For this reason, I have included language that stipulates 
that at least ten percent of the Medicare Integrity Program funds, and 
two percent of carrier funds, must be devoted to provider education 
programs.
  providers cannot be expected to comply with the endless number of 
Medicare regulations if they are not shown how to submit clean claims. 
We must ensure that providers are given the information needed to 
eliminate future billing errors, and improve the responsiveness of 
HCFA.
  It is with the goal of protecting our Medicare population, and the 
providers who tend care, that leads me to introduce the ``Medicare 
Billing and Education act of 2000.'' This bill will ensure that 
providers are treated with the respect that they deserve, and that 
Medicare beneficiaries aren't told that their health insurance isn't 
wanted. We owe it to our nation's seniors. I urge immediate action on 
this worthy bill.
  I ask unanimous consent that the text of my bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 3131

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Medicare 
     Billing and Education Act of 2000''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.

                       TITLE I--REGULATORY REFORM

Sec. 101. Prospective application of certain regulations.
Sec. 102. Requirements for judicial and regulatory challenges of 
              regulations.
Sec. 103. Prohibition of recovering past overpayments by certain means.
Sec. 104. Prohibition of recovering past overpayments if appeal 
              pending.

                   TITLE II--APPEALS PROCESS REFORMS

Sec. 201. Reform of post-payment audit process.
Sec. 202. Definitions relating to protections for physicians, 
              suppliers, and providers of services.
Sec. 203. Right to appeal on behalf of deceased beneficiaries.

                    TITLE III--EDUCATION COMPONENTS

Sec. 301. Designated funding levels for provider education.
Sec. 302. Advisory opinions.

               TITLE IV--SUSTAINABLE GROWTH RATE REFORMS

Sec. 401. Inclusion of regulatory costs in the calculation of the 
              sustainable growth rate.

                      TITLE V--STUDIES AND REPORTS

Sec. 501. GAO audit and report on compliance with certain statutory 
              administrative procedure requirements.
Sec. 502. GAO study and report on provider participation.
Sec. 503. GAO audit of random sample audits.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Physicians, providers of services, and suppliers of 
     medical equipment and supplies that participate in the 
     medicare program under title XVIII of the Social Security Act 
     must contend with over 100,000 pages of complex medicare 
     regulations, most of which are unknowable to the average 
     health care provider.
       (2) Many physicians are choosing to discontinue 
     participation in the medicare program to avoid becoming the 
     target of an overzealous Government investigation regarding 
     compliance with the extensive regulations governing the 
     submission and payment of medicare claims.
       (3) Health Care Financing Administration contractors send 
     post-payment review letters to physicians that require the 
     physician to submit to additional substantial Government 
     interference with the practice of the physician in order to 
     preserve the physician's right to due process.
       (4) When a Health Care Financing Administration contractor 
     sends a post-payment review letter to a physician, that 
     contractor often has no telephone or face-to-face 
     communication with the physician, provider of services, or 
     supplier.
       (5) The Health Care Financing Administration targets 
     billing errors as though health care providers have committed 
     fraudulent acts, but has not adequately educated physicians, 
     providers of services, and suppliers regarding medicare 
     billing requirements.
       (6) The Office of the Inspector General of the Department 
     of Health and Human Services found that 75 percent of 
     surveyed physicians had never received any educational 
     materials from a Health Care Financing Administration 
     contractor concerning the equipment and supply ordering 
     process.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Applicable authority.--The term ``applicable 
     authority'' has the meaning given such term in section 
     1861(uu)(1) of the Social Security Act (as added by section 
     202).
       (2) Carrier.--The term ``carrier'' means a carrier (as 
     defined in section 1842(f) of the Social Security Act (42 
     U.S.C. 1395u(f))) with a contract under title XVIII of such 
     Act to administer benefits under part B of such title.
       (3) Extrapolation.--The term ``extrapolation'' has the 
     meaning given such term in section 1861(uu)(2) of the Social 
     Security Act (as added by section 202).
       (4) Fiscal intermediary.--The term ``fiscal intermediary'' 
     means a fiscal intermediary (as defined in section 1816(a) of 
     the Social Security Act (42 U.S.C. 1395h(a))) with an 
     agreement under section 1816 of such Act to administer 
     benefits under part A or B of such title.
       (5) Health care provider.--The term ``health care 
     provider'' has the meaning given the term ``eligible 
     provider'' in section 1897(a)(2) of the Social Security Act 
     (as added by section 301).
       (6) Medicare program.--The term ``medicare program'' means 
     the health benefits program under title XVIII of the Social 
     Security Act (42 U.S.C. 1395 et seq.).
       (7) Prepayment review.--The term ``prepayment review'' has 
     the meaning given such term in section 1861(uu)(3) of the 
     Social Security Act (as added by section 202).
       (8) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services.

                       TITLE I--REGULATORY REFORM

     SEC. 101. PROSPECTIVE APPLICATION OF CERTAIN REGULATIONS.

       Section 1871(a) of the Social Security Act (42 U.S.C. 
     1395hh(a)) is amended by adding at the end the following new 
     paragraph:
       ``(3) Any regulation described under paragraph (2) may not 
     take effect earlier than the date on which such regulation 
     becomes a final regulation. Any regulation described under 
     such paragraph that applies to an agency action, including 
     any agency determination, shall only apply as that regulation 
     is in effect at the time that agency action is taken.''.

     SEC. 102. REQUIREMENTS FOR JUDICIAL AND REGULATORY CHALLENGES 
                   OF REGULATIONS.

       (a) Right To Challenge Constitutionality and Statutory 
     Authority of HCFA Regulations.--Section 1872 of the Social 
     Security Act (42 U.S.C. 1395ii) is amended to read as 
     follows:


            ``application of certain provisions of title ii

       ``Sec. 1872. The provisions of sections 206 and 216(j), and 
     of subsections (a), (d), (e), (h), (i), (j), (k), and (l) of 
     section 205, shall also apply with respect to this title to 
     the same extent as they are applicable with respect to title 
     II, except that--
       ``(1) in applying such provisions with respect to this 
     title, any reference therein to the Commissioner of Social 
     Security or the Social Security Administration shall be 
     considered a reference to the Secretary or the Department of 
     Health and Human Services, respectively; and
       ``(2) section 205(h) shall not apply with respect to any 
     action brought against the Secretary under section 1331 or 
     1346 of title 28, United States Code, regardless of whether 
     such action is unrelated to a specific determination of the 
     Secretary, that challenges--
       ``(A) the constitutionality of substantive or interpretive 
     rules of general applicability issued by the Secretary;
       ``(B) the Secretary's statutory authority to promulgate 
     such substantive or interpretive rules of general 
     applicability; or
       ``(C) a finding of good cause under subparagraph (B) of the 
     sentence following section 553(b)(3) of title 5, United 
     States Code, if used in the promulgation of substantive or 
     interpretive rules of general applicability issued by the 
     Secretary.''.
       (b) Construction of Hearing Rights Relating to 
     Determinations by the Secretary Regarding Agreements With 
     Providers of Services.--Section 1866(h) of the Social 
     Security Act (42 U.S.C. 1395cc(h)) is amended by adding at 
     the end the following new paragraph:
       ``(3) For purposes of applying paragraph (1), an 
     institution or agency dissatisfied with a

[[Page S9471]]

     determination by the Secretary described in such paragraph 
     shall be entitled to a hearing thereon regardless of 
     whether--
       ``(A) such determination has been made by the Secretary or 
     by a State pursuant to an agreement entered into with the 
     Secretary under section 1864; or
       ``(B) the Secretary has imposed or may impose a remedy, 
     penalty, or other sanction on the institution or agency in 
     connection with such determination.''.

     SEC. 103. PROHIBITION OF RECOVERING PAST OVERPAYMENTS BY 
                   CERTAIN MEANS.

       (a) In General.--Except as provided in subsection (b) and 
     notwithstanding sections 1815(a), 1842(b), and 
     1861(v)(1)(A)(ii) of the Social Security Act (42 U.S.C. 
     1395g(a), 1395u(a), and 1395x(v)(1)(A)(ii)), or any other 
     provision of law, for purposes of applying sections 
     1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii), 1870, and 1893 of such 
     Act (42 U.S.C. 1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii), 
     1395gg, and 1395ddd), the Secretary may not offset any future 
     payment to a health care provider to recoup a previously made 
     overpayment, but instead shall establish a repayment plan to 
     recoup such an overpayment.
       (b) Exception.--This section shall not apply to cases in 
     which the Secretary finds evidence of fraud or similar fault 
     on the part of such provider.

     SEC. 104. PROHIBITION OF RECOVERING PAST OVERPAYMENTS IF 
                   APPEAL PENDING.

       (a) Notwithstanding any provision of law, for purposes of 
     applying sections 1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii), 1870, 
     and 1893 of the Social Security Act (42 U.S.C. 
     1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii), 1395gg, and 
     1395ddd), the Secretary may not take any action (or authorize 
     any other person, including any fiscal intermediary, carrier, 
     and contractor under section 1893 of such Act (42 U.S.C. 
     1395ddd)) to recoup an overpayment during the period in which 
     a health care provider is appealing a determination that such 
     an overpayment has been made or the amount of the 
     overpayment.
       (b) Exception to this section shall not apply to cases in 
     which the Secretary finds evidence of fraud or similar fault 
     on the part of such provider.

                   TITLE II--APPEALS PROCESS REFORMS

     SEC. 201. REFORM OF POST-PAYMENT AUDIT PROCESS.

       (a) Communications to Physicians.--Section 1842 of the 
     Social Security Act (42 U.S.C. 1395u) is amended by adding at 
     the end the following new subsection:
       ``(u)(1)(A) Except as provided in paragraph (2), in 
     carrying out its contract under subsection (b)(3), with 
     respect to physicians' services, the carrier shall provide 
     for the recoupment of overpayments in the manner described in 
     the succeeding subparagraphs if--
       ``(i) the carrier or a contractor under section 1893 has 
     not requested any relevant record or file; and
       ``(ii) the case has not been referred to the Department of 
     Justice or the Office of Inspector General.
       ``(B)(i) During the 1-year period beginning on the date on 
     which a physician receives an overpayment, the physician may 
     return the overpayment to the carrier making such overpayment 
     without any penalty.
       ``(ii) If a physician returns an overpayment under clause 
     (i), neither the carrier nor the contractor under section 
     1893 may begin an investigation or target such physician 
     based on any claim associated with the amount the physician 
     has repaid.
       ``(C) The carrier or a contractor under section 1893 may 
     not recoup or offset payment amounts based on extrapolation 
     (as defined in section 1861(uu)(2)) if the physician has not 
     been the subject of a post-payment audit.
       ``(D) As part of any written consent settlement 
     communication, the carrier or a contractor under section 1893 
     shall clearly state that the physician may submit additional 
     information (including evidence other than medical records) 
     to dispute the overpayment amount without waiving any 
     administrative remedy or right to appeal the amount of the 
     overpayment.
       ``(E) As part of the administrative appeals process for any 
     amount in controversy, a physician may directly appeal any 
     adverse determination of the carrier or a contractor under 
     section 1893 to an administrative law judge.
       ``(F)(i) Each consent settlement communication from the 
     carrier or a contractor under section 1893 shall clearly 
     state that prepayment review (as defined in section 
     1861(uu)(3)) may be imposed where the physician submits an 
     actual or projected repayment to the carrier or a contractor 
     under section 1893. Any prepayment review shall cease if the 
     physician demonstrates to the carrier that the physician has 
     properly submitted clean claims (as defined in section 
     1816(c)(2)(B)(i)).
       ``(ii) Prepayment review may not be applied as a result of 
     an action under section 201(a), 301(b), or 302.
       ``(2) If a carrier or a contractor under section 1893 
     identifies (before or during post-payment review activities) 
     that a physician has submitted a claim with a coding, 
     documentation, or billing inconsistency, before sending any 
     written communication to such physician, the carrier or a 
     contractor under section 1893 shall contact the physician by 
     telephone or in person at the physician's place of business 
     during regular business hours and shall--
       ``(i) identify the billing anomaly;
       ``(ii) inform the physician of how to address the anomaly; 
     and
       ``(iii) describe the type of coding or documentation that 
     is required for the claim.''.
       (b) Effective Date.--The amendments made by this section 
     shall take effect 60 days after the date of enactment of this 
     Act.

     SEC. 202. DEFINITIONS RELATING TO PROTECTIONS FOR PHYSICIANS, 
                   SUPPLIERS, AND PROVIDERS OF SERVICES.

       (a) In General.--Section 1861 of the Social Security Act 
     (42 U.S.C. 1395 et seq.) is amended by adding at the end the 
     following new subsection:

 ``Definitions Relating to Protections for Physicians, Suppliers, and 
                         Providers of Services

       ``(uu) For purposes of provisions of this title relating to 
     protections for physicians, suppliers of medical equipment 
     and supplies, and providers of services:
       ``(1) Applicable authority.--The term `applicable 
     authority' means the carrier, contractor under section 1893, 
     or fiscal intermediary that is responsible for making any 
     determination regarding a payment for any item or service 
     under the medicare program under this title.
       ``(2) Extrapolation.--The term `extrapolation' means the 
     application of an overpayment dollar amount to a larger 
     grouping of physician claims than those in the audited sample 
     to calculate a projected overpayment figure.
       ``(3) Prepayment review.--The term `prepayment review' 
     means the carriers' and fiscal intermediaries' practice of 
     withholding claim reimbursements from eligible providers even 
     if the claims have been properly submitted and reflect 
     medical services provided.''.

     SEC. 203. RIGHT TO APPEAL ON BEHALF OF DECEASED 
                   BENEFICIARIES.

       Notwithstanding section 1870 of the Social Security Act (42 
     U.S.C. 1395gg) or any other provision of law, the Secretary 
     shall permit any health care provider to appeal any 
     determination of the Secretary under the medicare program on 
     behalf of a deceased beneficiary where no substitute party is 
     available.

                    TITLE III--EDUCATION COMPONENTS

     SEC. 301. DESIGNATED FUNDING LEVELS FOR PROVIDER EDUCATION.

       (a) Education Programs for Physicians, Providers of 
     Services, and Suppliers.--Title XVIII of the Social Security 
     Act (42 U.S.C. 1395 et seq.) is amended by adding at the end 
     the following new section:


    ``education programs for physicians, providers of services, and 
                               suppliers

       ``Sec. 1897. (a) Definitions.--In this section:
       ``(1) Education programs.--The term `education programs' 
     means programs undertaken in conjunction with Federal, State, 
     and local medical societies, specialty societies, other 
     providers, and the Federal, State, and local associations of 
     such providers that--
       ``(A) focus on current billing, coding, cost reporting, and 
     documentation laws, regulations, fiscal intermediary and 
     carrier manual instructions;
       ``(B) place special emphasis on billing, coding, cost 
     reporting, and documentation errors that the Secretary has 
     found occur with the highest frequency; and
       ``(C) emphasize remedies for these improper billing, 
     coding, cost reporting, and documentation practices.
       ``(2) Eligible providers.--The term `eligible provider' 
     means a physician (as defined in section 1861(r)), a provider 
     of services (as defined in section 1861(u)), or a supplier of 
     medical equipment and supplies (as defined in section 
     1834(j)(5)).
       ``(b) Conduct of Education Programs.--
       ``(1) In general.--Carriers and fiscal intermediaries shall 
     conduct education programs for any eligible provider that 
     submits a claim under paragraph (2)(A).
       ``(2) Eligible provider education.--
       ``(A) Submission of claims and records.--Any eligible 
     provider may voluntarily submit any present or prior claim or 
     medical record to the applicable authority (as defined in 
     section 1861(uu)(1)) to determine whether the billing, 
     coding, and documentation associated with the claim is 
     appropriate.
       ``(B) Prohibition of extrapolation.--No claim submitted 
     under subparagraph (A) is subject to any type of 
     extrapolation (as defined in section 1861(uu)(2)).
       ``(c) Safe Harbor.--No submission of a claim or record 
     under this section shall result in the carrier or a 
     contractor under section 1893 beginning an investigation or 
     targeting an individual or entity based on any claim or 
     record submitted under such subparagraph.
       ``(3) Treatment of improper claims.--If the carrier or 
     fiscal intermediary finds a claim to be improper, the 
     eligible provider shall have the following options:
       ``(A) Correction of problems.--To correct the 
     documentation, coding, or billing problem to appropriately 
     substantiate the claim and either--
       ``(i) remit the actual overpayment; or
       ``(ii) receive the appropriate additional payment from the 
     carrier or fiscal intermediary.
       ``(B) Repayment.--To repay the actual overpayment amount if 
     the service was not covered under the medicare program under 
     this title or if adequate documentation does not exist.

[[Page S9472]]

       ``(4) Prohibition of eligible provider tracking.--The 
     applicable authorities may not use the record of attendance 
     of any eligible provider at an education program conducted 
     under this section or the inquiry regarding claims under 
     paragraph (2)(A) to select, identify, or track such eligible 
     provider for the purpose of conducting any type of audit or 
     prepayment review.''.
       (b) Funding of Education Programs.--
       (1) Medicare integrity program.--Section 1893(b)(4) of the 
     Social Security Act (42 U.S.C. 1395ddd(b)(4)) is amended by 
     adding at the end the following new sentence: ``No less than 
     10 percent of the program funds shall be devoted to the 
     education programs for eligible providers under section 
     1897.''.
       (2) Carriers.--Section 1842(b)(3)(H) of the Social Security 
     Act (42 U.S.C. 1395u(b)(3)(H)) is amended by adding at the 
     end the following new clause:
       ``(iii) No less than 2 percent of carrier funds shall be 
     devoted to the education programs for eligible providers 
     under section 1897.''.
       (3) Fiscal intermediaries.--Section 1816(b)(1) of the 
     Social Security Act (42 U.S.C. 1395h(b)(1)) is amended--
       (A) in subparagraph (A), by striking ``and'' at the end;
       (B) in subparagraph (B), by striking ``; and'' and 
     inserting a comma; and
       (C) by adding at the end the following new subparagraph:
       ``(C) that such agency or organization is using no less 
     than 1 percent of its funding for education programs for 
     eligible providers under section 1897.''.
       (c) Effective Date.--The amendments made by this section 
     shall take effect 60 days after the date of enactment of this 
     Act.

     SEC. 302. ADVISORY OPINIONS.

       (a) Straight Answers.--
       (1) In general.--Fiscal intermediaries and carriers shall 
     do their utmost to provide health care providers with one, 
     straight and correct answer regarding billing and cost 
     reporting questions under the medicare program, and will, 
     when requested, give their true first and last names to 
     providers.
       (2) Written requests.--
       (A) In general.--The Secretary shall establish a process 
     under which a health care provider may request, in writing 
     from a fiscal intermediary or carrier, assistance in 
     addressing questionable coverage, billing, documentation, 
     coding and cost reporting procedures under the medicare 
     program and then the fiscal intermediary or carrier shall 
     respond in writing within 30 business days with the correct 
     billing or procedural answer.
       (B) Use of Written Statement.--
       (i) In general.--Subject to clause (ii), a written 
     statement under paragraph (1) may be used as proof against a 
     future payment audit or overpayment determination under the 
     medicare program.
       (ii) Extrapolation prohibition.--Subject to clause (iii), 
     no claim submitted under this section shall be subject to 
     extrapolation.
       (iii) Limitation on application.--Clauses (i) and (ii) 
     shall not apply to cases of fraudulent billing.
       (C) Safe harbor.--If a physician requests an advisory 
     opinion under this subsection, neither the fiscal 
     intermediary, the carrier, nor a contractor under section 
     1893 of the Social Security Act (42 U.S.C. 1395ddd) may begin 
     an investigation or target such physician based on any claim 
     cited in the request.
       (b) Extension of Existing Advisory Opinion Provisions of 
     Law.--Section 1128D(b) of the Social Security Act (42 U.S.C. 
     1320a-7d(b)) is amended--
       (1) in paragraph (4), by adding at the end the following 
     new subparagraph:
       ``(C) Safe harbor.--If a party requests an advisory opinion 
     under this subsection, neither the fiscal intermediary, the 
     carrier, nor a contractor under section 1893 may begin an 
     investigation or target such party based on any claim cited 
     in the request.''; and
       (2) in paragraph (6), by striking, `` and before the date 
     which is 4 years after such date of enactment''.

               TITLE IV--SUSTAINABLE GROWTH RATE REFORMS

     SEC. 401. INCLUSION OF REGULATORY COSTS IN THE CALCULATION OF 
                   THE SUSTAINABLE GROWTH RATE.

       (a) In General.--Section 1848(f)(2) of the Social Security 
     Act (42 U.S.C. 1395w-4(f)(2)) is amended--
       (1) by redesignating subparagraphs (A) through (D) as 
     clauses (i) through (iv), respectively;
       (2) by striking ``Specification of growth rate.--The 
     sustainable growth rate'' and inserting ``Specification of 
     growth rate.--
       ``(A) In general.--The sustainable growth rate''; and
       (3) by adding at the end the following new subparagraphs:
       ``(B) Inclusion of sgr regulatory costs.--The Secretary 
     shall include in the estimate established under clause (iv)--
       ``(i) the costs for each physicians' service resulting from 
     any regulation implemented by the Secretary during the year 
     for which the sustainable growth rate is estimated, including 
     those regulations that may be implemented during such year; 
     and
       ``(ii) the costs described in subparagraph (C).
       ``(C) Inclusion of other regulatory costs.--The costs 
     described in this subparagraph are any per procedure costs 
     incurred by each physicians' practice in complying with each 
     regulation promulgated by the Secretary, regardless of 
     whether such regulation affects the fee schedule established 
     under subsection (b)(1).
       ``(D) Inclusion of costs in regulatory impact analyses.--
     With respect to any regulation promulgated on or after 
     January 1, 2001, that may impose a regulatory cost described 
     in subparagraph (B)(i) or (C) on a physician, the Secretary 
     shall include in the regulatory impact analysis accompanying 
     such regulation an estimate of any such cost.''.
       (b) Effective Date.--The amendments made by subsection (a) 
     shall apply with respect to any estimate made by the 
     Secretary of Health and Human Services on or after the date 
     of enactment of this Act.

                      TITLE V--STUDIES AND REPORTS

     SEC. 501. GAO AUDIT AND REPORT ON COMPLIANCE WITH CERTAIN 
                   STATUTORY ADMINISTRATIVE PROCEDURE 
                   REQUIREMENTS.

       (a) Audit.--The Comptroller General of the United States 
     shall conduct an audit of the compliance of the Health Care 
     Financing Administration and all regulations promulgated by 
     the Department of Health and Human Resources under statutes 
     administered by the Health Care Financing Administration 
     with--
       (1) the provisions of such statutes;
       (2) subchapter II of chapter 5 of title 5, United States 
     Code (including section 553 of such title); and
       (3) chapter 6 of title 5, United States Code.
       (b) Report.--Not later than 18 months after the date of 
     enactment of this Act, the Comptroller General shall submit 
     to Congress a report on the audit conducted under subsection 
     (a), together with such recommendations for legislative and 
     administrative action as the Comptroller General determines 
     appropriate.

     SEC. 502. GAO STUDY AND REPORT ON PROVIDER PARTICIPATION.

       (a) Study.--The Comptroller General of the United States 
     shall conduct a study on provider participation in the 
     medicare program to determine whether policies or enforcement 
     efforts against health care providers have reduced access to 
     care for medicare beneficiaries. Such study shall include a 
     determination of the total cost to physician, supplier, and 
     provider practices of compliance with medicare laws and 
     regulations, the number of physician, supplier, and provider 
     audits, the actual overpayments assessed in consent 
     settlements, and the attendant projected overpayments 
     communicated to physicians, suppliers, and providers as part 
     of the consent settlement process.
       (b) Report.--Not later than 18 months after the date of 
     enactment of this Act, the Comptroller General shall submit 
     to Congress a report on the study conducted under subsection 
     (a), together with such recommendations for legislative and 
     administrative action as the Comptroller General determines 
     appropriate.

     SEC. 503. GAO AUDIT OF RANDOM SAMPLE AUDITS.

       (a) Audit.--The Comptroller General of the United States 
     shall conduct an audit to determine--
       (1) the statistical validity of random sample audits 
     conducted under the medicare program before the date of the 
     enactment of this Act;
       (2) the necessity of such audits for purposes of 
     administering sections 1815(a), 1842(a), and 
     1861(v)(1)(A)(ii) of the Social Security Act (42 U.S.C. 
     1395g(a), 1395u(a), and 1395x(v)(1)(A)(ii));
       (3) the effects of the application of such audits to health 
     care providers under sections 1842(b), 1866(a)(1)(B)(ii), 
     1870, and 1893 of such Act (42 U.S.C. 1395u(a), 
     1395cc(a)(1)(B)(ii), 1395gg, and 1395ddd); and
       (4) the percentage of claims found to be improper from 
     these audits, as well as the proportion of the extrapolated 
     overpayment amounts to the overpayment amounts found from the 
     analysis of the original sample.
       (b) Report.--Not later than 18 months after the date of the 
     enactment of this Act, the Comptroller General shall submit 
     to Congress a report on the audit conducted under subsection 
     (a), together with such recommendations for legislative and 
     administrative action as the Comptroller General determines 
     appropriate.
                                 ______
                                 
      By Mr. WARNER:
  S. 3132. A bill to expand the boundary of the George Washington 
Birthplace National Monument, and for other purposes; to the Committee 
on Energy and Natural Resources.se


GEORGE WASHINGTON BIRTHPLACE NATIONAL MONUMENT BOUNDARY ADJUSTMENT ACT 
                                OF 2000

  Mr. WARNER. Mr. President, the man who would later become America's 
first president, George Washington, was born at Popes Creek Plantation 
on the banks of the Potomac River in 1732. Although most Americans are 
familiar with his later residence at Mt. Vernon, fewer people know that 
George Washington's childhood was spent on this sprawling 550 acre 
plantation in Westmoreland County, Virginia.
  The Washington family first settled at Popes Creek in 1656 when John 
Washington, great-grandfather of George Washington, acquired the 
property. Although he later moved to Mt. Vernon, most historians agree 
George Washington returned on a regular basis to his birthplace. 
Located on the property is the Washington family cemetery that is the 
final resting place for

[[Page S9473]]

George Washington's father, grandfather, and great-grandfather. To this 
day, Washington family descendants continue to live in the area.
  In 1930, Congress recognized the historic importance of this site to 
the nation and created the George Washington Birthplace National 
Monument. The park is truly a national treasure which tells of George 
Washington's formative years. In addition to providing an excellent 
example of colonial life, the park contains acres of woodlands, 
wetlands, and agricultural fields. I am told numerous bald-eagles now 
call the park home.
  In this age of rapid development, it is remarkable that despite the 
passage of two hundred and sixty-eight years, the Popes Creek area is 
remarkably unchanged since the time of George Washington's birth. The 
131,099 annual visitors to the park can still experience a rural, 
pastoral countryside that George Washington would recognize. Much of 
the credit for this bucolic atmosphere is due to the efforts of the 
owners of the private property surrounding the park. They have done 
their best to avoid developing the property adjacent to the park. But, 
as these landowners gradually decide they wish to sell their property, 
I believe the Park Service should acquire the surrounding property to 
preserve this historic setting for future generations. The alternative 
is to risk development that could forever scar this beautiful national 
landmark.
  Today, I am introducing legislation to expand the boundary of the 
George Washington Birthplace National Monument by allowing the U.S. 
Park Service to acquire portions of the surrounding property from 
willing sellers. As a nation, it is our duty to preserve America's 
heritage for future generations. I urge my colleagues to support the 
preservation of George Washington's birthplace.
                                 ______
                                 
      By Mr. BAUCUS (for himself and Mr. Burns):
  S. 3133. A bill to provide compensation to producers for 
underestimation of wheat protein content; to the Committee on 
Agriculture, Nutrition, and Forestry.


             wheat protein mismeasurement compensation act

  Mr. BAUCUS. Mr. President, I rise today to introduce the bill which 
will provide long-overdue compensation to agricultural producers in my 
state and across the country. The ``Wheat Protein Mismeasurement 
Compensation Act'' provides a legislative remedy for producers who 
suffered a loss due to the U.S. Department of Agriculture's erroneous 
underestimation of their wheat protein content for wheat sold between 
May 2, 1993 and January 24, 1994.
  In May 1993, the Secretary of Agriculture, acting through the Federal 
Grain Inspection Service, required the use of new technology for 
determining the protein content of wheat. However, the calibrations 
provided by the Secretary for the new protein measurement instruments 
were erroneous and resulted in protein determinations that were lower 
than those produced by the technology in use before use of the new 
technology was required.
  As a result of this miscalibration and the USDA's failure to provide 
adequate notice and opportunity for comment, hundreds of wheat 
producers in my state were forced to adjust their protein measurement 
and pricing system in order to protect themselves on resale. The result 
was a significant loss of revenue from the sale of high-protein wheat.
  Mr. President, I have worked on this issue for several years--first 
as a case for my injured Montana producers. In a perfect this world, 
this problem would have been resolved by the USDA at an administrative 
level immediately after the miscalibration was identified and 
readjusted. Instead, it has lagged on and on and on. Unfortunately this 
matter for technical sovereign immunity reasons cannot be resolved in 
the courts. That is why we in Congress are their last chance at getting 
this resolved once and for all.
  It is clearly, however, that these wheat producers by no fault of 
their own were injured by the USDA's implementation of a flawed system. 
But for that error, they would have received a fair price for their 
wheat. At a time when the agricultural community continues to suffer 
from record low prices and disastrous weather conditions, this 
continued injustice is simply unacceptable. We must do all in our power 
to correct this problem and justly compensate our producers for their 
losses.
  I urge my colleagues to assist us in the expeditious passage of this 
legislation.
  Mr. BURNS. Mr. President I rise today to join my colleague from 
Montana in introducing the Wheat Protein Mismeasurement Compensation 
Act. In 1993 the Federal Grain Inspection Service changed the 
technology used to determine the protein content of wheat. As a result 
a number of producers were harmed.
  The issue has had our attention for a number of years, and has 
cumulated in a recent exercise over the past few months to find a 
resolution. The simple fact is that the USDA has failed to work with 
the farmers harmed so we can determine the actual financial impact to 
all producers. However, I am very confident we can address the losses 
shouldered by Montana's producers with the $465 million cap in this 
legislation.
  My number one priority is to ensure that those producers who were 
harmed by the Federal Government's miscalculation are fully reimbursed 
for their losses. As we work this bill through the legislative process 
I believe we may need to readdress the section on the amount of 
compensation for the attorneys, but only time will tell. I believe this 
bill is a good step forward, and I welcome a process that will make 
USDA sit down face to face with these producers and compensate those 
that were harmed by the mismeasurements.
                                 ______
                                 
      By Mr. BAUCUS:
  S. 3134. A bill to amend the Internal Revenue Code of 1986 to provide 
an income tax credit for certain charitable conservation contributions 
of land by small farmers and ranchers, and for other purposes; to the 
Committee on Finance.


                    RURAL HERITAGE CONSERVATION ACT

  Mr. BAUCUS. Mr. President, our nation's agricultural heritage is a 
rich tradition, which encompasses much of what we are about as a 
people; hard work, common sense, and a deep respect for the land.
  In Montana, and in too many communities across America, our 
agricultural heritage is at risk. Productive farms and ranches that 
have been in the same family for generations are being forced to turn 
their back on the land they love in order to make ends meet.
  I applaud our current conservation easement system and the many fine 
non-profit organizations that have worked with landowners across 
America to protect millions of acres of land. The successes have been 
great, but so too have the lessons.
  What we have learned is that the current system does not work 
particularly well for working farmers and ranchers. That's why I've 
introduced the Rural Heritage Conservation Act, a creative approach 
that provides farmers and ranchers with a real incentive to preserve 
their, and our, agricultural heritage.
  Over the past twenty-five years, over 3 million acres of agricultural 
land have been lost to development in Montana alone. Many of these 
acres were lost when family farms, hit hard by tough times, chose to 
give up their generations of old farming operations and sell to 
developers in order to pay their outstanding debts.
  The measure proposed in this legislation will expand the current 
conservation easement tax incentive program with an eye toward making 
the system work better for the bulk of real, working farmers and 
ranchers who would like to preserve their land for future generations 
but for whom the current system does not provide any meaningful 
incentive.
  Let me give you a real-life example that was presented by my good 
friend Jerry Townsend of Highwood Montana before the Senate Finance 
Committee's subcommittee on Tax and IRS oversight.
  Mr. Townsend testified that when he gave a conservation easement to 
the Montana Land Reliance, the value of his deduction was $524,000. 
However, under current law, over the last five years he has only been 
able to save $1,858 in federal taxes. Not much of an incentive, 
particularly when you factor

[[Page S9474]]

in the $2,500 he paid for the appraisal required to complete the 
conservation easement process.
  The Rural Heritage Conservation Act will do three things.
  First, it will create a targeted, limited tax credit for farm and 
ranch filers who donate a conservation easement to a qualified land 
trust. Mr. Townsend's example is all too familiar a story to farmers 
and ranchers throughout America. The relatively small deduction they 
can obtain under current law does not in any way equate to either the 
potential income they have forfeited or the value the public has gained 
from the donation. As a result, fewer and fewer farmers and ranchers 
are donating conservation easements and protecting their land for 
future generations.
  To protect against abuse, the bill calls for a cap on the total tax 
credit available under the program and requires that a majority of the 
income for the qualifying filer be from farm and ranch operations.
  Second, this legislation will level the playing field for all types 
of agricultural filers. Current law allows C-Corps to deduct up to 10 
percent of their income compared to the 30% allowed for other business 
types including Limited Liability Companies, Sole Proprietorships and 
Limited Liability Partnerships.
  According to figures presented by the Montana Land Reliance, there 
are some 40,000 acres of land in Montana alone owned by C-Corporations, 
in most cases family held, that have identified the 10 percent limit as 
a barrier to their contributing an easement.
  Third, the bill would eliminate the current provision that limits 
additional estate tax relief to landowners only within a 25 mile radius 
of a metropolitan area.
  As we have discussed at some length in this very chamber, estate tax 
is a significant issue for many Americans, including those who live in 
farm and ranch households. The current radius restriction works to the 
financial disadvantage of people who live in states with sparse 
populations.
  Elimination of the radius will be a significant improvement to 
current law and will enable many rural families to pass along to future 
generations family farms and ranches that are so much a part of the 
very heart of America.
  Protecting our agricultural heritage and the land that makes it 
possible is good public policy. I believe that the Agricultural 
Heritage Preservation Act is a creative, common sense approach to 
improving the current conservation easement program and making it work 
better to meet this important goal. I'm not claiming that this approach 
is the ``perfect'' approach, or the only way to accomplish our goals. 
But it's clear that the current system does not work effectively for 
small farmers and ranchers and we must do more. I hope that the 
introduction of this bill will initiate an informed, intelligent 
discussion of this important matter. We must find the best way to solve 
this problem that threatens the conservation of our agricultural lands 
and rural way of life.
  I hope that as we consider other land conservation initiatives and 
other measures to make significant changes to the estate tax system, 
that the changes I'm proposing in the Rural Heritage Conservation Act 
will be a key part of the discussion.
                                 ______
                                 
      By Mr. GRAMS:
  S. 3138. A bill to amend the Internal Revenue Code of 1986 to 
increase the amount and availability of the child tax credit and make 
the credit refundable; to the Committee on Finance.


                       helping american families

  Mr. GRAMS. Mr. President, I will talk for a couple of minutes about 
one of the issues about which I am most passionate, and that is taxes, 
or the overtaxation of the American people in a time of surpluses, and 
the refusal of this Congress, this President, to even make an attempt 
to have meaningful tax cuts or meaningful tax relief before the end of 
this Congress.
  In 1997, the Congress passed and the President signed into law my 
$500-per-child tax credit legislation. As a result, today about 40 
million children in this country receive this tax credit every year, 
and it returns a total of about $20 billion a year in tax savings to 
families. That is money that families can use for savings for their 
children's education, for day care, for tutors, for braces, a new 
washer, dryer--anything--a family vacation. But it is what the family 
decides to spend their hard-earned money on, rather than waiting for a 
handout from Washington.
  In fact, for the first time since the 1980s, this tax credit and 
other Republican-initiated tax cuts have reduced the tax burden for 
low- and middle-income families. I have heard many of my colleagues on 
the other side of the aisle bragging about how some people in the 
United States are paying less taxes today--and that is true--but it is 
mainly true because of the $500-per-child tax credit, nothing else that 
this administration or this Congress has done.
  Despite this tax credit, the total tax burden is still way too high 
for working Americans. Today, let's look at an average two-income 
family. The median two-income family pays $26,759 in Federal, State, 
and local taxes. Let's compare this with back in 1992. Those taxes were 
$21,320 a year--a 26-percent increase in the tax burden for average 
families in just the last 8 years of the Clinton administration. That 
is according to the Nonpartisan Tax Foundation. To date, $26,759; 8 
years ago, $21,320.
  That shows the increase in taxes to the median-income family--not the 
rich of this country. They are paying more in taxes, as well. But it is 
the average working family that is paying the brunt of the tax 
increases imposed by this administration. Again, that is according to 
the Nonpartisan Tax Foundation. Total taxes nationwide claim 39 percent 
of hard-earned income, and that is more than the typical family in this 
country pays for food, clothing, shelter, and transportation combined.
  In the past few years, over 20 million Americans earning between 
$30,000 and $50,000 have been pushed from the 15-percent tax bracket 
into the 28-percent tax bracket due to our unfair tax system. They are 
paying almost twice as much for those incomes, pushed from the 15-
percent to the 28-percent tax bracket. As low-income and minimum wage 
workers work harder and pay more, their payroll taxes also increase, 
taking a huge bite out of their hard-earned dollars--dollars that I 
believe are desperately needed to keep those families above the poverty 
line.
  Taxes collected by the Federal Government have reached 20.6 percent 
of all national income. That is the highest level since World War II. 
The government takes one-fifth of every dollar produced in this country 
every year. In the next 10 years, working Americans will pay taxes that 
will contribute to an over $2.2 trillion non-Social Security surplus. 
This non-Social Security surplus will be $2.2 trillion and that is even 
after assuming government spending is increasing along with the level 
and rate of inflation. This non-Social Security surplus comes from 
increased personal taxes and the realization of our capital gains 
taxes.

  I believe this money should be returned to working Americans in the 
form of some tax relief, debt reduction, and also Social Security 
reform. Yes, overtaxed American families still need tax relief today. I 
believe using some of the non-Social Security surplus to expand the 
$500-per-child tax credit is one of the right things to do because 
Washington, again, is taking more taxes from American families at a 
time when it doesn't need the money as bad as families do.
  I have repeatedly argued in this Chamber that the family has been and 
will continue to be the bedrock of our society. Strong families make 
strong communities, strong communities make for a strong America, and 
our tax policies should strengthen families and should be there to 
reestablish the value of families.
  Between 1960 and 1985, Federal taxes on American families increased 
significantly. For families with 4 children, the Federal income tax 
rate increased 223 percent; for families with two children the rate 
increased 43 percent. The inflation-adjusted median income for families 
with children also decreased between 1973 and 1994. So its income was 
going down and taxes were still going up.
  While the 1997 Taxpayer Relief Act, which included my $500-per-child 
tax

[[Page S9475]]

credit, has helped to change this situation, there is still room for 
improvement, a lot of room for a lot of improvement. For example, 
combined with the dependent exemption, the tax benefits for families 
raising children still falls well below both the inflation-adjusted 
value of the original dependent exemption, and also the actual cost of 
raising children according to Minnesota's Children Defense Fund.
  In addition, this child tax credit and the income threshold for 
families qualifying for credit are not indexed for inflation. As a 
result, the value of this child tax credit would also shrink in the 
future and fewer families would qualify for the credit.
  That is why I am introducing tonight legislation aimed at expanding 
the tax credit. My legislation would increase the tax credit from $500 
per child to $1,000, and it would be adjusted for inflation every year. 
It would also index the income threshold for families qualifying for 
this tax credit.
  While I strongly support this increase as well as the marriage 
penalty repeal and getting rid of the death tax, the only way we will 
achieve meaningful tax relief is to reform our entire tax system 
completely. Even my legislation today, I look at as just an interim 
step toward this very essential goal of having a tax system that is 
simple, fair, and easy to understand.
  With these proposed improvements we would allow overtaxed working 
families with children to keep a little bit more of their own money--
give them the opportunity to spend it on their own priorities, not 
looking for a handout from Washington, not saying they need another 
program from Washington, not that they want another big government 
approach--but allowing them to keep some of their dollars so they can 
make the determination on how they want to spend their money, a little 
bit more of their own money, to spend on their own priorities. I urge 
my colleagues to support this legislation.
  Mr. SESSIONS. Mr. President, I say to Senator Grams, I think this is 
another insightful bit of tax relief policy you are promoting. I look 
forward to studying it. People think sometimes this is not possible. I 
don't think we stop to celebrate enough the wonderful thing that 
happened when, under your leadership and that of a lot of others who 
worked on it, we were able to provide a $500-per-child tax credit to 
working families in America. A mother with two children will now have, 
today, $1,000 more a year--nearly $80 a month with which they can buy 
shoes or fix the muffler on the car, take the kids on a trip or to a 
movie or out for a meal. It is the kind of thing that was really great. 
People said it could not be done and it was done.
  I think these other proposals the Senator makes are realistic and 
also can be done.
  We need to continue to work at this. The question is whether the 
American people are going to be able to keep this money or are we going 
to allow more and more to come to Washington as it grows more and more 
powerful and the power and wealth and independence of American citizens 
grows weaker and weaker.
  Mr. GRAMS. The Senator from Alabama is right. If we look at it, at a 
time of overtaxation, when American workers are getting up every 
morning, working hard, and sending this money to Washington, and then 
it is overtaxed--we are not talking about cutting taxes at all. We are 
talking right now about returning some of the surplus to make sure 
those people who worked hard and produced this windfall get it back.
  We tell our children: If you find a wallet on the street with $1,000 
dollars in it, the first thing you should do is try to return it to the 
owner. Make sure you give the money back. Washington has found a wallet 
with $2.2 trillion in it, and they won't give it back. They are trying 
to find a way to spend it. I think our hard-working families deserve 
some tax credit along with debt reduction and securing Social Security, 
rather than leaving it for the big spenders in Washington to decide how 
they want to divvy up and dole out their money.
  Mr. SESSIONS. I think my colleague also makes an excellent point 
about this percentage of the total gross domestic product. People say 
we cannot afford a tax cut, but we have reached record levels of a 
total gross domestic product that is being taken by the Government. 
These suggestions the Senator makes are worthwhile. We need to be 
working on that and the marriage penalty and the estate tax and a lot 
of other things around here which we can afford. I thank my colleague.
  Mr. GRAMS. I thank the Senator from Alabama for his support.
                                 ______
                                 
      Mr. McCONNELL (for himself and Mr. Bunning):
  S. 3140. A bill to transfer administrative jurisdiction over land of 
the Tennessee Valley Authority within the Daniel Boone National Forest 
to the Secretary of Agriculture and compensate the Authority for the 
transfer; to the Committee on Environment and Public Works.


           kentucky national forest land transfer act of 2000

  Mr. McCONNELL. Mr. President, I rise today to introduce the Kentucky 
National Forest Land Transfer Act of 2000. The purpose of this 
legislation is to provide an equitable solution to a problem that 
exists in Kentucky--specifically, to allow the Tennessee Valley 
Authority (TVA) to donate mineral rights, which it owns, to the Forest 
Service in exchange for compensation through the sale of other mineral 
rights in the Federal land inventory.
  Mr. President, I would like to take a moment to give my colleagues 
some background on this issue and why this is necessary. During the 
1960's, TVA purchased coal mineral rights on land that was later 
designated as the Daniel Boone National Forest. Today, TVA owns 40,000 
acres of mineral rights under the forest.
  This past July, TVA announced that it no longer had a need for these 
extensive mineral rights, and announced that after a 15-day comment 
period, it intended to auction the rights to a coal operator to mine 
the land. In TVA's view, this was a way to get much needed funds to pay 
down the $26 billion debt which they have amassed over the years. Since 
TVA originally had purchased the land with ratepayer funds, they were 
unwilling simply to donate the land, and consequently defended their 
proposal to auction off their rights to a coal operator by arguing that 
they currently have the ability to mine the land since they owned the 
mineral rights before the forest was created.
  As you can imagine, Mr. President, this proposal hit a nerve with 
Kentuckians, who were quick to express their outrage at the proposition 
that TVA could allow mining in the Daniel Boone National Forest. The 
Courier-Journal, in an editorial published on August 7, 2000, wrote 
that TVA's proposal was a ``rush to judgment'' that failed to take the 
public interest into consideration. The editorial went on to say that 
``the best outcome, obviously, would be for the U.S. Forest Service to 
control the mineral rights under the acreage that it manages. And if 
there are legal problems to overcome in arranging that, the auction 
should be held up until Congress can remove them.'' Mr. President, that 
is essentially what my legislation will achieve. I would like to submit 
the editorial for the Record.
  Well, Mr. President, both Congress and TVA responded to the public 
outcry. First, Senator Bunning offered an amendment to the Energy and 
Water Appropriations bill requiring TVA to conduct an Environmental 
Impact Study (EIS) before it could move forward on its proposal to 
auction off mineral rights. In response to that, a week later, TVA 
withdrew its auction plan, citing its concern that the proposal had 
sent the wrong signals. Despite these developments, the interested 
parties continued to press their case for transferring the mineral 
rights to the Forest Service, and again, I say, Mr. President, that is 
exactly what my bill will do.
  My bill is a compromise solution that will protect the forest and 
protect TVA's ratepayers, by compensating TVA. This legislation is 
narrowly crafted to require TVA to donate the mineral rights under the 
Daniel Boone to the Forest Service in exchange for the right to sell 
other mineral rights owned by the Interior Department. Under this 
agreement, TVA will receive fair market value from the sale, which it 
can then use to reduce its burgeoning debt.
  My bill has the support of TVA and the Forest Service, and is 
necessary in

[[Page S9476]]

order to implement the compromise which we have worked to achieve. This 
solution is based on the Mt. St. Helens National Volcanic Monument 
Completion Act (P.L. 105-279), which allowed for the acquisition of 
private mineral rights within the Monument through a swap. That 
legislation passed the Senate by unanimous consent. It is my hope that 
my colleagues will recognize the merits of my legislation and pass it 
with similar support.
  Mr. President, we are in the waning days of the 106th Congress and 
time is running out to implement this carefully crafted solution, which 
is in the best interest of Kentucky's citizens and TVA's ratepayers. 
This is a win-win proposition and I urge the Senate to expeditiously 
consider and pass this important legislation. Mr. President, I yield 
the floor.
  I ask unanimous consent that a copy of the bill and an editorial be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 3140

       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 ``Kentucky National Forest 
     Land Transfer Act of 2000''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--Congress finds that--
       (1) the United States owns over 40,000 acres of land and 
     mineral rights administered by the Tennessee Valley Authority 
     within the Daniel Boone National Forest in the State of 
     Kentucky;
       (2) the land and mineral rights were acquired by the 
     Tennessee Valley Authority for purposes of power production 
     using funds derived from ratepayers;
       (3) the management of the land and mineral rights should be 
     carried out in accordance with the laws governing the 
     management of national forests; and
       (4) the Tennessee Valley Authority, on behalf of the 
     ratepayers of the Authority, should be reasonably compensated 
     for the land and mineral rights of the Authority transferred 
     within the Daniel Boone National Forest.
       (b) Purposes.--The purposes of this Act are--
       (1) to transfer administrative jurisdiction over land of 
     the Tennessee Valley Authority within the Daniel Boone 
     National Forest to the Secretary of Agriculture; and
       (2) to compensate the Tennessee Valley Authority for the 
     reasonable value of the transfer of jurisdiction.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Covered land.--
       (A) In general.--The term ``covered land'' means all land 
     and interests in land owned or managed by the Tennessee 
     Valley Authority within the boundaries of the Daniel Boone 
     National Forest in the State of Kentucky that are transferred 
     under this Act, including surface and subsurface estates.
       (B) Exclusions.--The term ``covered land'' does not include 
     any land or interest in land owned or managed by the 
     Tennessee Valley Authority for the transmission of water, 
     gas, or power, including power line easements and associated 
     facilities.
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of Agriculture.

     SEC. 4. TRANSFER OF ADMINISTRATIVE JURISDICTION OVER COVERED 
                   LAND.

       (a) In General.--All covered land is transferred to the 
     administrative jurisdiction of the Secretary to be managed in 
     accordance with the laws (including regulations) pertaining 
     to the National Forest System.
       (b) Authority of Secretary of Interior Over Mineral 
     Resources.--The transfer of the covered land shall be subject 
     to the authority of the Secretary of the Interior with 
     respect to mineral resources underlying National Forest 
     System land, including laws pertaining to mineral leasing and 
     the Surface Mining Control and Reclamation Act of 1977 (30 
     U.S.C. 1201 et seq.).
       (c) Surface Mining.--No surface mining shall be permitted 
     with respect to any covered land except as provided under 
     section 522(e)(2) of the Surface Mining Control and 
     Reclamation Act of 1977 (30 U.S.C. 1272(e)(2)).

     SEC. 5. MONETARY CREDITS.

       (a) In General.--In consideration for the transfer provided 
     under section 4, the Secretary of the Interior shall provide 
     to the Tennessee Valley Authority monetary credits with a 
     value of $4,000,000 that may be used for the payment of--
       (1) not more than 50 percent of the bonus or other payments 
     made by successful bidders in any sales of mineral, oil, gas, 
     or geothermal leases in the contiguous 48 States under--
       (A) the Mineral Leasing Act (30 U.S.C. 181 et seq.);
       (B) the Outer Continental Shelf Lands Act (43 U.S.C. 1331 
     et seq.); or
       (C) the Geothermal Steam Act of 1970 (30 U.S.C. 1001 et 
     seq.);
       (2) not more than 10 percent of the bonus or other payments 
     made by successful bidders in any sales of mineral, oil, gas, 
     or geothermal leases in the State of Alaska under the laws 
     referred to in paragraph (1);
       (3) not more than 50 percent of any royalty, rental, or 
     advance royalty payment made to the United States to maintain 
     any mineral, oil, gas, or geothermal lease in the contiguous 
     48 States issued under the laws referred to in paragraph (1); 
     or
       (4) not more than 10 percent of any royalty, rental, or 
     advance royalty payment made to the United States to maintain 
     any mineral, oil, gas, or geothermal lease in the State of 
     Alaska issued under the laws referred to in paragraph (1).
       (b) Value of Credits.--The total amount of credits provided 
     under subsection (a) shall be considered equal to the fair 
     market value of the covered land.
       (c) Acceptance of Credits.--
       (1) In general.--The Secretary of the Interior shall accept 
     credits provided under subsection (a) in the same manner as 
     cash for the payments described under subsection (a).
       (2) Use of credits.--The use of the credits shall be 
     subject to the laws (including regulations) governing such 
     payments, to the extent the laws are consistent with this 
     section.
       (d) Treatment of Credits for Distribution to States.--All 
     credits accepted by the Secretary of the Interior under 
     subsection (c) for the payments described in subsection (a) 
     shall be considered to be money received for the purpose of 
     section 35 of the Mineral Leasing Act (30 U.S.C. 191) and 
     section 20 of the Geothermal Steam Act of 1970 (30 U.S.C. 
     1019).
       (e) Exchange Account.--
       (1) Establishment.--Notwithstanding any other provision of 
     law, not later than 60 days after the date of enactment of 
     this Act, the Secretary of the Interior shall establish an 
     exchange account for the Tennessee Valley Authority for the 
     monetary credits provided under subsection (a).
       (2) Administration.--The account shall--
       (A) be established with the Minerals Management Service of 
     the Department of the Interior; and
       (B) have an initial balance of credits equal to $4,000,000.
       (3) Use of credits.--
       (A) In general.--The credits shall be available to the 
     Tennessee Valley Authority for the purposes described in 
     subsection (a).
       (B) Adjustment of balance.--The Secretary of the Interior 
     shall adjust the balance of credits in the account to reflect 
     credits accepted by the Secretary of the Interior under 
     subsection (c).
       (f) Transfer or Sale of Credits.--
       (1) In general.--The Tennessee Valley Authority may 
     transfer or sell any credits in the account of the Authority 
     to another person or entity.
       (2) Use of transferred credits.--Credits transferred or 
     sold under paragraph (1) may be used in accordance with this 
     subsection only by a person or entity that is qualified to 
     bid on, or that holds, a mineral, oil, or gas lease under--
       (A) the Mineral Leasing Act (30 U.S.C. 181 et seq.);
       (B) the Outer Continental Shelf Lands Act (43 U.S.C. 1331 
     et seq.); or
       (C) the Geothermal Steam Act of 1970 (30 U.S.C. 1001 et 
     seq.).
       (3) Notification.--
       (A) In general.--Not later than 30 days after the transfer 
     or sale of any credits, the Tennessee Valley Authority shall 
     notify the Secretary of the Interior of the transfer or sale.
       (B) Validity of transfer or sale.--The transfer or sale of 
     any credit shall not be valid until the Secretary of the 
     Interior has received the notification required under 
     subparagraph (A).
       (4) Time limit on use of credits.--
       (A) In general.--On the date that is 5 years after the date 
     on which an account is established for the Tennessee Valley 
     Authority under subsection (e), the Secretary of the Interior 
     shall terminate the account.
       (B) Unused credits.--Any credits that originated in the 
     terminated account and have not been used as of the 
     termination date, including any credits transferred or sold 
     under this subsection, shall expire.

     SEC. 6. EXISTING AUTHORIZATIONS.

       (a) In General.--Nothing in this Act affects any valid 
     existing rights under any lease, permit, or other 
     authorization by the Tennessee Valley Authority on covered 
     land in effect before the date of enactment of this Act.
       (b) Renewal.--Renewal of any existing lease, permit, or 
     other authorization on covered land shall be at the 
     discretion of the Secretary on terms and conditions 
     determined by the Secretary.

     SEC. 7. COMPLIANCE WITH ENVIRONMENTAL LAWS.

       (a) Definitions.--In this section:
       (1) Environmental law.--
       (A) In general.--The term ``environmental law'' means all 
     applicable Federal, State, and local laws (including 
     regulations) and requirements related to protection of human 
     health, natural or cultural resources, or the environment.
       (B) Inclusions.--The term ``environmental law'' includes--
       (i) the Comprehensive Environmental Response, Compensation, 
     and Liability Act of 1980 (42 U.S.C. 9601 et seq.);
       (ii) the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.);
       (iii) the Federal Water Pollution Control Act (33 U.S.C. 
     1251 et seq.);
       (iv) the Clean Air Act (42 U.S.C. 7401 et seq.);
       (v) the Federal Insecticide, Fungicide, and Rodenticide Act 
     (7 U.S.C. 136 et seq.);

[[Page S9477]]

       (vi) the Toxic Substances Control Act (15 U.S.C. 2601 et 
     seq.);
       (vii) the Safe Drinking Water Act (42 U.S.C. 300f et seq.);
       (viii) the National Environmental Policy Act of 1969 (42 
     U.S.C. 4321 et seq.); and
       (ix) the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
     seq.).
       (2) Hazardous substance, pollutant or contaminant, release, 
     and response action.--The terms ``hazardous substance'', 
     ``pollutant or contaminant'', ``release'', and ``response 
     action'' have the meanings given the terms in section 101 and 
     other provisions of the Comprehensive Environmental Response, 
     Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et 
     seq.).
       (b) Documentation of Existing Conditions.--
       (1) In General.--Not later than 60 days after the date of 
     enactment of this Act, the Tennessee Valley Authority shall 
     provide the Secretary all documentation and information that 
     exists on the environmental condition of the land and waters 
     comprising the covered land.
       (2) Additional documentation.--The Tennessee Valley 
     Authority shall provide the Secretary with any additional 
     documentation and information regarding the environmental 
     condition of the covered land as such documentation and 
     information becomes available.
       (c) Action Required.--
       (1) Assessment.--Not later than 120 days after the date of 
     enactment of this Act, the Tennessee Valley Authority shall 
     provide to the Secretary an assessment indicating what 
     action, if any, is required under any environmental law on 
     covered land.
       (2) Memorandum of understanding.--If the assessment 
     concludes that action is required under any environmental law 
     with respect to any portion of the covered land, the 
     Secretary and the Tennessee Valley Authority shall enter into 
     a memorandum of understanding that--
       (A) provides for the performance by the Tennessee Valley 
     Authority of the required actions identified in the 
     assessment; and
       (B) includes a schedule providing for the prompt completion 
     of the required actions to the satisfaction of the Secretary.
       (d) Documentation Demonstrating Action.--The Tennessee 
     Valley Authority shall provide the Secretary with 
     documentation demonstrating that all actions required under 
     any environmental law have been taken, including all response 
     actions that are necessary to protect human health and the 
     environment with respect to any hazardous substance, 
     pollutant or contaminant, hazardous waste, hazardous 
     material, or petroleum product or derivative of a petroleum 
     product on covered land.
       (e) Continuation of Responsibilities and Liabilities.--
       (1) In general.--The transfer of covered land under this 
     Act, and the requirements of this section, shall not affect 
     the responsibilities and liabilities of the Tennessee Valley 
     Authority under any environmental law.
       (2) Access.--The Tennessee Valley Authority shall have 
     access to the property that may be reasonably required to 
     carry out a responsibility or satisfy a liability referred to 
     in paragraph (1).
       (3) Additional terms and conditions.--The Secretary may 
     require such additional terms and conditions in connection 
     with the transfer of covered land under this Act as the 
     Secretary considers to be appropriate to protect the interest 
     of the United States concerning the continuation of any 
     responsibilities and liabilities under any environmental law.
       (4) No effect on responsibilities or liabilities.--Nothing 
     in this Act affects, directly or indirectly, the 
     responsibilities or liabilities under any environmental law 
     of any person with respect to the Secretary.
       (f) Other Federal Agencies.--Subject to the other 
     provisions of this section, a Federal agency that carried or 
     carries out operations on covered land resulting in the 
     release or threatened release of a hazardous substance, 
     pollutant or contaminant, hazardous waste, hazardous 
     material, or petroleum product or derivative of a petroleum 
     product for which that agency would be liable under any 
     environmental law shall pay--
       (1) the costs of related response actions; and
       (2) the costs of related actions to remediate petroleum 
     products or their derivatives.
                                  ____


                [From the Courier-Journal, Aug. 7, 2000]

      TVA's Proposal To Auction Boone Forest Mineral Rights Stinks

       The period for comment on the Tennessee Valley Authority's 
     auction of more than 40,000 acres in mineral rights under 
     Eastern Kentucky's Daniel Boone National Forest has just 
     closed. But for what it's worth, we'll comment anyway: It 
     stinks.
       Talk about a rush to judgment. Comment was shut off just 15 
     days after TVA revealed its plan to sell.
       Given that it's at least a quasi-public entity, TVA 
     certainly ought to keep the broad public interest in mind 
     when it makes major business decisions. TVA should be able to 
     say what public good will result from selling these mineral 
     rights to the highest bidder, as if they were some tax 
     evader's living room furniture being auctioned on the 
     courthouse steps.
       TVA environmental engineer Steve Hillenbrand defends the 
     sellout (and we do mean to invoke the word ``sellout'' in 
     both its meanings, the ordinary and the pejorative) by saying 
     the agency needs money. But on that basis just about any 
     outrage could be rationalized. Obviously there needs to be 
     some better justification.
       Hillenbrand also said TVA wants out because these mineral 
     deposits are not in the Tennessee Valley.
       Odd. The distance between Eastern Kentucky's coalfields and 
     the utility's service area never discouraged TVA's interest, 
     or its coal buyers, before. Indeed, for decades the Kentucky 
     River coalfield was stripped and augered, its watersheds 
     compromised, its resources depleted, its people victimized, 
     for coal to feed the power plants of TVA.
       The story of coal barons and their work in Appalachia, on 
     behalf of TVA, would make a great book, if Upton Sinclair or 
     Ida Tarbell were still around to write it.
       How can TVA simply turn its back on that history and 
     depart, with the proceeds of its auction?
       One newspaper story about the auction said TVA wants at 
     least $3.5 million, and will sell only to those who agree not 
     to strip mine. But the legalities are unclear, and protection 
     for all the national forest land against stripping is not a 
     sure thing. Nor would such a restriction address the 
     potential impact of deep mining or oil-and-gas exploration, 
     which could be devastating.
       The best outcome, obviously, would be for the U.S. Forest 
     Service to control the mineral rights under the acreage that 
     it manages. And if there are legal problems to overcome in 
     arranging that, the auction should be held up until Congress 
     can remove them.
       Selling mineral rights to the highest bidder is not a 
     responsible policy. The National Citizens' Coal Law Project 
     is right to oppose it, right to call for a full Environmental 
     Impact Statement on the plan instead of some half-baked 
     assessment, and right to urge that, if all else fails, only 
     those with exemplary mining and reclamation records be 
     allowed to bid.

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