[Congressional Record Volume 147, Number 149 (Thursday, November 1, 2001)]
[Senate]
[Pages S11363-S11389]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KERRY (for himself and Mr. Kennedy):
S. 1609. A bill to amend the National Trails System Act to direct the
Secretary of the Interior to conduct a study on the feasibility of
desig-
nating the Metacomet-Monadnock-Mattabesett Trail extending through
western Massachusetts and central Connecticut as a national historic
trail; to the Committee on Energy and Natural Resources.
Mr. KERRY. Mr. President, I rise today to introduce a bill along with
my senior Senator, Senator Kennedy of Massachusetts, to amend the
National Trails System Act to conduct a study on the feasibility of
designating the Metacomet-Monadnock-Mattabesett Trail extending through
western Massachusetts and central Connecticut as a national historic
trail.
The National Trails System was created in 1968 to provide outdoor
recreation and to conserve the scenic, historic, natural, and cultural
qualities of the areas through which trails more than 100 miles long
pass. Trails provide opportunities for outdoor recreation to citizens
in Massachusetts and around the country. People enjoy bicycling, cross-
country skiing, day hiking, jogging, camping, and long-distance
backpacking. In addition, National Scenic Trails promote tourism and
foster economic development. National trails
[[Page S11364]]
can only be authorized and designated by Acts of Congress.
The Metacomet-Monadnock-Matta-
besett Trail plays an important role in land protection and wildlife
habitat preservation. It is a system of trails and potential trails
extending southward approximately 180 miles from the Metacomet-
Monadnock Trail in western Massachusetts, across central Connecticut on
the Metacomet Trail and the Mattabesett Trail, and ending at Long
Island Sound. Dozens of waterfalls, natural areas, and wildlife viewing
spots can be found along the route. There are dramatic traprock ledges
and summits that provide tremendous views of the Connecticut River
Valley. At a time when the Northeast corridor is faced with
overdevelopment, designating the Metacomet-Monadnock-Mattabesett as a
national trail would help protect it, facilitate better planning for
power lines, pipelines, and roads, and help maintain natural habitats
through the financial and technological assistance of the National Park
Service, nonprofit organizations, and local volunteers.
I would like to share a few of the comments from organizations in
Massachusetts and Connecticut that support this legislation. Peter
Westover, the conservation director for the town of Amherst, wrote to
express strong support for the trail. He is confident that there will
be widespread support among trail managers and trail users throughout
the region. Both Durand, the Massachusetts Secretary of Environmental
Affairs, wrote that the Metacomet-Monadnock portion of the trail is an
important recreational, scenic, and historic resource that could be
significantly enhanced by this project. The Massachusetts director of
the Nature Conservancy, Wayne Klockner, expressed his strong support
for the trail, writing that he supports the benefits that designation
can bring to a fragile area and that he looks forward to increased land
protection, funding and technical expertise. From Connecticut, Leslie
Kane, chairman of the Guilford Land Acquisition Committee, supports the
trail because it will preserve Connecticut's natural heritage for all
people to enjoy. These comments represent only a handful of the letters
of support that my colleagues and I have received.
Establishing a new national scenic trail is typically a four-step
process, which, on average, can take 10 years to complete. In 10 years,
given the rapid development in the Northeast, entire landscapes and
habitats can change and become endangered. The first step in the
process to establish a new national trail is amending the National
Trails System Act to allow for a feasibility study. Senator Kennedy and
I are asking today that we take that first step and get started
protecting the natural heritage of this small part of New England.
______
By Mr. LEAHY:
S. 1611. A bill to restore Federal remedies for infringements of
intellectual property by States, and for other purposes; to the
Committee on the Judiciary.
Mr. LEAHY. Mr. President, in June 1999, the U.S. Supreme Court issued
a pair of decisions that altered the legal landscape with respect to
intellectual property. I am referring to the Florida Prepaid and
College Savings Bank cases. The Court ruled in these cases that States
and their institutions cannot be held liable for patent infringement
and other violations of the Federal intellectual property laws, even
though they can and do enjoy the full protection of those laws for
themselves.
About 4 months after the Court ruled in these cases, I introduced a
bill that responded to the Court's decisions. The Intellectual Property
Restoration Act of 1999 was designed to restore Federal remedies for
violations of intellectual property rights by States.
I regret that the Senate Judiciary Committee did not consider my
legislation during the last Congress, and that the Senate has yet to
give any attention to the nearly 2-year-old Supreme Court decisions
that opened such a troubling loophole in our Federal intellectual
property laws. We should delay no further.
Today, I am introducing the Intellectual Property Protection
Restoration Act of 2001, IPPRA. This legislation builds on my earlier
proposal and on the helpful comments I received on that proposal from
legal experts across the country. In particular, I would like to thank
Justin Hughes, David Carson, Steve Tepp, Michael Kirk, Michael Klipper,
and John Kent for their assistance in improving and refining this
legislation. I also want to thank the House sponsors of the counterpart
bill, Howard Coble and Howard Berman, who are the chairman and ranking
member of the Subcommittee on Courts, the Internet, and Intellectual
Property.
The IPPRA has two essential components. First, it places States on an
equal footing with private parties by eliminating any damages remedy
for infringement of State-owned intellectual property unless the State
has waived its immunity in Federal suits for infringement of privately
owned intellectual property. Second, it improves the limited remedies
that are available to enforce a nonwaiving State's obligations under
Federal law and the United States Constitution. I will discuss both
provisions in more detail later in these remarks.
Innovation and creativity have been the fuel of our national economic
boom over the past decade. The United States now leads the world in
computing, communications and biotechnologies, and American authors and
brand names are recognized across the globe.
Our national prosperity is, first and foremost, a tribute to American
ingenuity. But it is also a tribute to the wisdom of our Founding
Fathers, who made the promotion of what they called ``Science and the
Useful Arts'' a national project, which they constitutionally assigned
to Congress. And it is no less of a tribute to the successive
Congresses and administrations of both parties who have striven to
provide real incentives and rewards for innovation and creativity by
providing strong and even-handed protection to intellectual property
rights. Congress passed the first Federal patent law in 1790, and the
U.S. Government issued its first patent the same year, to Samuel
Hopkins of my home State of Vermont. The first Federal copyright law
was also enacted in 1790, and the first Federal trademark laws date
back to the 1870s.
The Supreme Court has long recognized that intellectual property
rights bear the hallmark of true constitutional property rights, the
right of exclusion against the world, and are therefore protection
against appropriation both by individuals and by government. Consistent
with this understanding of intellectual property, Congress has long
ensured that the rights secured by the Federal intellectual property
laws were enforceable against the Federal Government by waiving the
government's immunity in suits alleging infringements of those rights.
No doubt Congress would have legislated similarly with respect to
infringements by State entities and bureaucrats had there been any
doubt that they were already fully subject to Federal intellectual
property laws. But there was no doubt. States had long enjoyed the
benefits of the intellectual property laws on an equal footing with
private parties.
By the same token, and in accordance with the fundamental principles
of equity on which our intellectual property laws are founded, the
States bore the burdens of the intellectual property laws, being liable
for infringements just like private parties. States were free to join
intellectual property markets as participants, or to hold back from
commerce and limit themselves to a narrower governmental role. The
intellectual property right of exclusion meant what it said and was
enforced even-handedly for public and private entities alike.
This harmonious state of affairs ended in 1985, with the Supreme
Court's announcement of the so-called ``clear statement'' rule in
Atascadero State Hospital versus Scanlon. The Court in Atascadero held
that Congress must express its intention to abrogate the States' 11th
Amendment immunity ``in unmistakable language in the statute itself.''
A few years later in Pennsylvania versus Union Gas Co., the Supreme
Court assured us that if the intent to abrogate were expressed clearly
enough, it would be honored.
Following Atascadero, some courts held that States and State entities
and
[[Page S11365]]
officials could escape liability for patent, copyright and trademark
infringement because the patent, copyright and trademark laws lacked
the clear statement of congressional intent that was now necessary to
abrogate State sovereign immunity.
To close this new loophole in the law, Congress promptly did
precisely what the Supreme Court had told us was necessary. In 1990 and
1992, Congress passed three laws--the Patent and Plant Variety
Protection Remedy Clarification Act, the Copyright Remedy Clarification
Act, and the Trademark Remedy Clarification Acts. The sole purpose of
the Clarification Acts was to make it absolutely, unambiguously, 100
percent clear that Congress intended the patent, copyright and
trademark laws to apply to everyone, including the States, and that
Congress did not intend the States to be immune from liability for
money damages. Each of the three Clarification Acts passed unanimously.
In 1996, however, by a five-to-four-vote, the Supreme Court in
Seminole Tribe of Florida versus Florida reversed its earlier decision
in Union Gas and held that Congress lacked authority under article I of
the Constitution to abrogate the States' 11th amendment immunity from
suit in Federal court.
Then, on June 23, 1999, by the same bare majority, the Supreme Court
in Florida Prepaid Postsecondary Education Expense Board versus College
Savings Bank told us that it did not really mean what it said in
Atascadero and invalidated the Patent and Plant Variety Protection
Remedy Clarification Act. In the companion case decided on the same
day, College Savings Bank versus Florida Prepaid Postsecondary
Education Expense Board, the same five Justices held that the Trademark
Remedy Clarification Act also failed to abrogate State sovereign
immunity.
The Florida Prepaid decisions have been the subject of bipartisan
criticism. In a floor statement on July 1, 1999, I highlighted the
anti-democratic implications of the approach of the activist majority
of the Supreme Court, who have left constitutional text behind, ripped
up precedent, and treated Congress with less respect than that due to
an administrative agency in their haste to impose their natural law
notions of sovereignty as a barrier to democratic regulation. I also
noted that ``the Court's decisions will have far-reaching consequences
about how * * * intellectual property rights may be protected against
even egregious infringements and violations by the states.''
One of my Republican colleagues on the Judiciary Committee, Senator
Specter, expressed similar concerns in a floor statement on August 5,
1999. He noted that the Court decisions ``leave us with an absurd and
untenable state of affairs,'' where ``states will enjoy an enormous
advantage over their private sector competitors.''
Charles Fried, a professor at Harvard Law School and former Solicitor
General during the Reagan administration, has called the Florida
Prepaid decisions ``truly bizarre.'' He observed in an op-ed piece in
the New York Times:
[The Court's decisions] did not question that states are
subject to the patent and trademark laws of the United
States. It's just that when a state violates those laws--as
when it uses a patented invention without permission and
without paying for it--the patent holder cannot sue the state
for infringement. So a state hospital can manufacture
medicines patented by others and sell or use them, and state
schools and universities can pirate textbooks and software,
and the victims cannot sue for infringement.
It is hard to see what sense this makes, and the claim that
``the Constitution made me do it'' is particularly
unconvincing. The 11th Amendment does protect states from
suits in Federal courts by residents of other states--a
provision almost certainly not intended to protect states
from suits based on Federal law.
Not surprisingly, alarm has also been expressed in the business
community about the potential of the Court's recent decisions to harm
intellectual property owners in a wide variety of ways. A commentary in
Business Week offered these cautions:
Watch out if you publish software that someone at a state
university wants to copy for free . . . Watch out if you own
a patent on a medical procedure that some doctor in a state
medical school wants to use. Watch out if you've invested
heavily in a great trademark, like Nike's Swoosh, and a
bureaucrat decides his state program would be wildly promoted
if it used the same mark.
I believe that these concerns are real. As Congress acknowledged when
it waived Federal sovereign immunity in this area, it would be naive to
imagine that reliance on the commercial decency of the government and
its myriad agencies and officials would provide the security needed to
promote investment in research and development and to facilitate
negotiation in the exclusive licensing arrangements that are often
necessary to bring valuable products and creations to market. Indeed,
the good intentions of government may be beside the point, if
businesses are unwilling to enter into agreements because one side
cannot be bound by the law.
Since the Court issued its decisions in June 1999, intellectual
property scholars and practitioners across the country have come
together to explore ways for Congress to restore protection for federal
intellectual property rights as against the States. The Patent and
Trademark Office hosted a particularly enlightening conference in March
2000, in cooperation with the American Intellectual Property Law
Association and the Intellectual Property Section of the American Bar
Association. I commend the PTO for taking the initiative on this
important issue.
More recently, in September 2001, the General Accounting Office
released a report requested by Senator Orrin Hatch on State Immunity in
Infringement Actions. The GAO's research confirmed that, after Florida
Prepaid, owners of intellectual property have few alternatives or
remedies available against State infringements. A State cannot be sued
in Federal court for damages except in the unlikely event that it
waives its sovereign immunity. As for the State courts, there is little
chance of success with infringement-type a actions for patents and
copyrights because of Federal judicial preemption and an absence of
State-recognized causes of action. Furthermore, even if infringement
suits can be brought in State court, it may not be possible to bring
them against States that have governmental immunity shielding them from
suit in their own courts.
What I have just described is a series of dead ends for intellectual
property owners. That is why the two Federal agencies with expertise in
intellectual property matters, the U.S. Copyright Office and the U.S.
Patent and Trademark Office, have expressed their support for
corrective legislation by Congress. As the Copyrights Office told the
GAO, ``Only in this way can the proper balance, and basic fairness, be
restored.''
I hope we can all agree on the need for congressional action on this
issue. We need to assure American inventors and investors, and our
foreign trading partners, that as State involvement in intellectual
property becomes ever greater in the new information economy, U.S.
intellectual property rights are backed by legal remedies.
This is important as a matter of economics: Our national economy
depends on real and effective intellectual property rights. It is also
important as a matter of justice: In conceding that the States are
constitutionally bound to respect Federal intellectual property rights
but invalidating the remedies Congress has created to enforce those
rights, the Court has jeopardized one of the basic principles that
distinguishes our Constitution from the constitution of the old Soviet
Union, the principle that where there is a right, there must also be a
remedy.
It is also important as a matter of foreign relations: American
trading interests have been well served by our strong and consistent
advocacy of effective intellectual property protections in treaty
negotiations and other international fora, and those efforts could be
jeopardized by the loophole in U.S. intellectual property enforcement
that the Supreme Court has created.
Like most of the constitutional experts who have examined the issue,
I have no doubt that several constitutional mechanisms remain open to
Congress to restore substantial protection for patents, copyrights and
trademarks. The Supreme Court's hypertechnical constitutional
interpretations require us to jump through some technical hoops of our
own, but that the exercise is now not merely worthwhile, but essential
to safeguard both U.S. prosperity and the continued authority of
Congress.
[[Page S11366]]
My bill is based on a simple premise: That there is no inherent,
``natural law'' entitlement to Federal intellectual property rights and
remedies. In discussing the policies underlying the intellectual
property laws, the Supreme Court has emphasized that intellectual
property is not a right but a privilege, and that it is conditioned by
a public purpose. For example, the Court wrote in Mercoid Corp. versus
Mid-Continent Invest Co., a 1944 case, that ``The grant of a patent is
the grant of a special privilege `to promote the Progress of Science
and useful Arts,' '' and that ``It is the public interest which is
dominant in the patent system.'' Similarly, in discussing the copyright
laws in Fogerty versus Fantasy, Inc, the Court underscored that ``the
monopoly privileges that Congress has authorized, while intended to
motivate the creative activity of authors and inventors by the
provision of a special reward, are limited in nature and must
ultimately serve the public good.''
The Constitution empowers but does not require Congress to make
intellectual property rights and remedies available, and Congress
should do so in a manner that encourages and protects innovation in the
public and private sector alike.
States and their institutions, especially State Universities, benefit
hugely from the Federal intellectual property laws. All 50 States own
or have obtained patents, some hold many hundreds of patents. States
also hold other intellectual property rights secured by Federal law,
and the trend is toward increased participation by the States in
commerce involving intellectual property.
Principles of State sovereignty tell us that States and their
instrumentalities are entitled to a free and informed choice of whether
or not to participate in the Federal intellectual property system,
subject only to their constitutional obligations.
Equity and common sense tell us that one who chooses to enjoy the
benefits of a law, whether it be a Federal research grant or the
multimillion-dollar benefits of Federal intellectual property
protections, should also bear its burdens.
Sound economics and traditional notions of federalism tell us that it
is appropriate for the Federal Government to assist and encourage the
sovereign States in their sponsorship of whatever innovation and
creation they freely choose to sponsor by giving them intellectual
property protection and, on occasion, funding, so long as the States
hold up their end of the bargain by honoring the exclusive rights of
other intellectual property owners.
The IPPRA builds on these principles. In order to promote cooperative
federalism in the intellectual property arena, it provides reasonable
incentives for states to waive their immunity in intellectual property
cases and participate in our national intellectual property project on
equal terms with private parties. States that choose not to waive their
immunity within 2 years after enactment of the IPPRA would continue to
enjoy many of the benefits of the Federal intellectual property system;
however, like private parties that sue non-waiving states for
infringement, nonwaiving States that sue private parties for
infringement could not recover any money damages that would otherwise
be available under Federal law. That is because Federal intellectual
property that has been owned by a nonwaiving State would be short one
``stick'' from the usual bundle of rights accorded by Federal law: The
ability to sue for damages under Federal law when the intellectual
property has been infringed.
This scheme is plainly authorized by the letter of the Constitution.
Article I empowers Congress to ``promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive right to their respective Writings and Discoveries.''
Incident to this power, Congress may attach conditions on the receipt
of exclusive intellectual property rights. Indeed, we have always
attached certain conditions, such as the requirement of public
disclosure of an invention at the Patent and Trademark Office in order
to obtain a patent.
My proposal is also consistent with the spirit of federalism, as
interpreted by the Supreme Court, because it gives State entities a
free, informed and meaningful choice to waive or not to waive immunity
at any time. The condition imposed on receipt of federal benefits by
the IPPRA, submitting to suit under laws that are already binding on
the States, is not onerous, nor does it co-opt any state resources to
the service of Federal policy. It simply levels the intellectual
property playing field.
Congress may attach conditions on a State's receipt of Federal
intellectual property protection under its Article I intellectual
property power just as Congress may attach conditions on a State's
receipt of Federal funds under its Article I spending power. Either
way, the power to attach conditions to the Federal benefit is an
integral part of the greater power to deny the benefit altogether.
Either way, the State has a choice, to forgo the Federal benefit and
exercise its sovereign power however it wishes subject to the
Constitution, or to take the benefit and exercise its sovereign power
in the manner requested by Congress.
Three Federal appeals courts have applied similar reasoning in
connection with the 1996 Telecommunications Act. The Courts of Appeals
for the Fifth, Seventh, Tenth Circuits have reasoned that, because
Congress was under no obligation to allow States to participate in the
regulatory scheme established by the 1996 Act, Congress could validly
condition a state commission's decision to exercise regulatory
authority under the Act on its waiving sovereign immunity.
This seems like plain common sense to me. It would be a truly bizarre
reading of the Constitution to say that it is up to Congress whether or
not to let States participate in telecom regulation or in the
intellectual property regime, but that if we choose to let them
participate, we cannot hold them accountable for their actions.
Given the choice between opting in to the intellectual property laws
and forging some intellectual property protection under the Federal
laws, States and their institutions will, I hope, choose to opt in. The
benefit--being able to recover damages for an infringement--is
significant, while the burden--consenting to be sued for future State
infringements--is slight. Most States already respect intellectual
property rights and will seldom find themselves in infringement suits.
However, some State entities and officials have violated intellectual
property rights in the past, and the massive growth of both
intellectual property and state participation in the
intellectual property marketplace that we are seeing in the new economy
give ample cause for concern that such violations will continue. Now
that the Supreme Court has seemingly given the States carte blanche to
violate intellectual property rights free from any adverse financial
consequences so long as they stand on their newly augmented sovereign
immunity, the prospect of States violating Federal law and then
asserting immunity is too serious to ignore.
The IPPRA therefore also provides for the limited set of remedies
that the Supreme Court's new jurisprudence leaves available to Congress
to enforce a nonwaiving State's obligations under Federal law and the
United States Constitution. The key point here is that, while the Court
struck down our prior effort to enforce the intellectual property laws
themselves by authorizing actions for damages against the states, it
nonetheless acknowledged Congress' power to authorize actions for
injunctions and actions to enforce constitutional rights related to
intellectual property.
First, for the avoidance of doubt, the IPPRA ensures the full
availability of prospective equitable relief to prevent States from
violating or exceeding their rights under Federal intellectual property
laws. As the Supreme Court expressly acknowledged in its Seminole Tribe
decision in 1996, such relief is available, notwithstanding any
assertion of State sovereign immunity, under what is generally known as
the doctrine of Ex parte Young.
Second, to address the harm done to the rights of intellectual
property owners before they can secure an injunction, the IPPRA also
provides a damages remedy to the full extent of Congress' power to
enforce the constitutional rights of intellectual property owners.
Under the Supreme Court's recent decisions, this remedy is necessarily
limited to the redress of constitutional violations, not violations of
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the Federal intellectual property laws themselves. However, the Supreme
Court has reaffirmed on may occasions that the intellectual property
owner's right of exclusion is a property right fully protected from
governmental violation under the Fifth amendment's takings clause and
under the 14th amendment's due process clause.
The constitutional remedy provided by the IPPRA closely resembles the
remedy that Congress provided decades ago for deprivations of Federal
rights by persons acting under color of State law. The bill does not
expand the property rights secured by the Federal intellectual property
laws--these laws are already binding on the States' nor does the bill
interfere with any governmental authority to regulate businesses that
own such rights. It simply restores the ability of private persons to
enforce such rights against the States.
I view this bill as an exercise in cooperative federalism. Clear,
certain, and uniform national rules protecting Federal intellectual
property rights benefit everyone: Consumers, businesses, the Federal
Government and the States. The IPPRA preserves States' rights, and
gives States a free choice. At the same time, it ensures effective
protection for individual constitutional rights closing the loophole
created by the Supreme Court of Federal rights unsupported by effective
remedies. We unanimously passed more sweeping legislation in the early
1990s, but were thwarted by Supreme Court's shifting jurisprudence. The
IPPRA is designed to restore the benefits we sought to provide
intellectual property owners while meeting the Court's new
jurisprudential requirements.
There are to be sure, other approaches that Congress could take to
address the problems created by the Court's decisions. In consultation
with experts in intellectual property law and constitutional law, I
reviewed several alternatives before settling on the IPPRA's approach.
In the end, I concluded that the approach I have outlined is the best
way to achieve a solution that meets any constitutional concerns,
fosters State-Federal cooperation, and encourages American innovation
and creativity to providing certain and effective intellectual property
protection.
when I first introduced the IPPRA in 1999, it prompted a flurry of
constructive comments and suggestions on how the legislation could be
improved. I look forward to considering further refinements to the bill
as the legislative process moves forward.
I ask unanimous consent that the text of the bill and a section-by-
section summary of the bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1611
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.--This Act may be cited as the
``Intellectual Property Protection Restoration Act of 2001''.
(b) References.--Any reference in this Act to the Trademark
Act of 1946 shall be a reference to the Act entitled ``An Act
to provide for the registration and protection of trade-marks
used in commerce, to carry out the provisions of certain
international conventions, and for other purposes'', approved
July 5, 1946 (15 U.S.C. 1051 et seq.).
SEC. 2. PURPOSES.
The purposes of this Act are to--
(1) help eliminate the unfair commercial advantage that
States and their instrumentalities now hold in the Federal
intellectual property system because of their ability to
obtain protection under the United States patent, copyright,
and trademark laws while remaining exempt from liability for
infringing the rights of others;
(2) promote technological innovation and artistic creation
in furtherance of the policies underlying Federal laws and
international treaties relating to intellectual property;
(3) reaffirm the availability of prospective relief against
State officials who are violating or who threaten to violate
Federal intellectual property laws; and
(4) abrogate State sovereign immunity in cases where States
or their instrumentalities, officers, or employees violate
the United States Constitution by infringing Federal
intellectual property.
SEC. 3. INTELLECTUAL PROPERTY REMEDIES EQUALIZATION.
(a) Amendment to Patent Law.--Section 287 of title 35,
United States Code, is amended by adding at the end the
following:
``(d)(1) No remedies under section 284 or 289 shall be
awarded in any civil action brought under this title for
infringement of a patent issued on or after January 1, 2002,
if a State or State instrumentality is or was at any time the
legal or beneficial owner of such patent, except upon proof
that--
``(A) on or before the date the infringement commenced or
January 1, 2004, whichever is later, the State has waived its
immunity, under the eleventh amendment of the United States
Constitution and under any other doctrine of sovereign
immunity, from suit in Federal court brought against the
State or any of its instrumentalities, for any infringement
of intellectual property protected under Federal law; and
``(B) such waiver was made in accordance with the
constitution and laws of the State, and remains effective.
``(2) The limitation on remedies under paragraph (1) shall
not apply with respect to a patent if--
``(A) the limitation would materially and adversely affect
a legitimate contract-based expectation in existence before
January 1, 2002; or
``(B) the party seeking remedies was a bona fide purchaser
for value of the patent, and, at the time of the purchase,
did not know and was reasonably without cause to believe that
a State or State instrumentality was once the legal or
beneficial owner of the patent.
``(3) The limitation on remedies under paragraph (1) may be
raised at any point in a proceeding, through the conclusion
of the action. If raised before January 1, 2004, the court
may stay the proceeding for a reasonable time, but not later
than January 1, 2004, to afford the State an opportunity to
waive its immunity as provided in paragraph (1).''.
(b) Amendment to Copyright Law.--Section 504 of title 17,
United States Code, is amended by adding at the end the
following:
``(e) Limitation on Remedies in Certain Cases.--
``(1) No remedies under this section shall be awarded in
any civil action brought under this title for infringement of
an exclusive right in a work created on or after January 1,
2002, if a State or State instrumentality is or was at any
time the legal or beneficial owner of such right, except upon
proof that--
``(A) on or before the date the infringement commenced or
January 1, 2004, whichever is later, the State has waived its
immunity, under the eleventh amendment of the United States
Constitution and under any other doctrine of sovereign
immunity, from suit in Federal court brought against the
State or any of its instrumentalities, for any infringement
of intellectual property protected under Federal law; and
``(B) such waiver was made in accordance with the
constitution and laws of the State, and remains effective.
``(2) The limitation on remedies under paragraph (1) shall
not apply with respect to an exclusive right if--
``(A) the limitation would materially and adversely affect
a legitimate contract-based expectation in existence before
January 1, 2002; or
``(B) the party seeking remedies was a bona fide purchaser
for value of the exclusive right, and, at the time of the
purchase, did not know and was reasonably without cause to
believe that a State or State instrumentality was once the
legal or beneficial owner of the right.
``(3) The limitation on remedies under paragraph (1) may be
raised at any point in a proceeding, through the conclusion
of the action. If raised before January 1, 2004, the court
may stay the proceeding for a reasonable time, but not later
than January 1, 2004, to afford the State an opportunity to
waive its immunity as provided in paragraph (1).''.
(c) Amendment to Trademark Law.--Section 35 of the
Trademark Act of 1946 (15 U.S.C. 1117) is amended by adding
at the end the following:
``(e) Limitation on Remedies in Certain Cases.--
``(1) No remedies under this section shall be awarded in
any civil action arising under this Act for a violation of
any right of the registrant of a mark registered in the
Patent and Trademark Office on or after January 1, 2002, or
any right of the owner of a mark first used in commerce on or
after January 1, 2002, if a State or State instrumentality is
or was at any time the legal or beneficial owner of such
right, except upon proof that--
``(A) on or before the date the violation commenced or
January 1, 2004, whichever is later, the State has waived its
immunity, under the eleventh amendment of the United States
Constitution and under any other doctrine of sovereign
immunity, from suit in Federal court brought against the
State or any of its instrumentalities, for any infringement
of intellectual property protected under Federal law; and
``(B) such waiver was made in accordance with the
constitution and laws of the State, and remains effective.
``(2) The limitation on remedies under paragraph (1) shall
not apply with respect to a right of the registrant or owner
of a mark if--
``(A) the limitation would materially and adversely affect
a legitimate contract-based expectation in existence before
January 1, 2002; or
``(B) the party seeking remedies was a bona fide purchaser
for value of the right, and, at the time of the purchase, did
not know and was reasonably without cause to believe that a
State or State instrumentality was once the legal or
beneficial owner of the right.
``(3) The limitation on remedies under paragraph (1) may be
raised at any point in a proceeding, through the conclusion
of the
[[Page S11368]]
action. If raised before January 1, 2004, the court may stay
the proceeding for a reasonable time, but not later than
January 1, 2004, to afford the State an opportunity to waive
its immunity as provided in paragraph (1).''.
(d) Technical and Conforming Amendments.--
(1) Amendments to patent law.--
(A) In general.--Section 296 of title 35, United States
Code, is repealed.
(B) Table of sections.--The table of sections for chapter
29 of title 35, United States Code, is amended by striking
the item relating to section 296.
(2) Amendments to copyright law.--
(A) In general.--Section 511 of title 17, United States
Code, is repealed.
(B) Table of sections.--The table of sections for chapter 5
of title 17, United States Code, is amended by striking the
item relating to section 511.
(3) Amendments to trademark law.--Section 40 of the
Trademark Act of 1946 (15 U.S.C. 1122) is amended--
(A) by striking subsection (b);
(B) in subsection (c), by striking ``or (b)'' after
``subsection (a)''; and
(C) by redesignating subsection (c) as subsection (b).
SEC. 4. CLARIFICATION OF REMEDIES AVAILABLE FOR STATUTORY
VIOLATIONS BY STATE OFFICERS AND EMPLOYEES.
In any action against an officer or employee of a State or
State instrumentality for any violation of any of the
provisions of title 17 or 35, United States Code, the
Trademark Act of 1946, or the Plant Variety Protection Act (7
U.S.C. 2321 et seq.), remedies shall be available against the
officer or employee in the same manner and to the same extent
as such remedies are available in an action against a private
individual under like circumstances. Such remedies may
include monetary damages assessed against the officer or
employee, declaratory and injunctive relief, costs, attorney
fees, and destruction of infringing articles, as provided
under the applicable Federal statute.
SEC. 5. LIABILITY OF STATES FOR CONSTITUTIONAL VIOLATIONS
INVOLVING INTELLECTUAL PROPERTY.
(a) Due Process Violations.--Any State or State
instrumentality that violates any of the exclusive rights of
a patent owner under title 35, United States Code, of a
copyright owner, author, or owner of a mask work or original
design under title 17, United States Code, of an owner or
registrant of a mark used in commerce or registered in the
Patent and Trademark Office under the Trademark Act of 1946,
or of an owner of a protected plant variety under the Plant
Variety Protection Act (7 U.S.C. 2321 et seq.), in a manner
that deprives any person of property in violation of the
fourteenth amendment of the United States Constitution, shall
be liable to the party injured in a civil action in Federal
court for compensation for the harm caused by such violation.
(b) Takings Violations.--
(1) In general.--Any State or State instrumentality that
violates any of the exclusive rights of a patent owner under
title 35, United States Code, of a copyright owner, author,
or owner of a mask work or original design under title 17,
United States Code, of an owner or registrant of a mark used
in commerce or registered in the Patent and Trademark Office
under the Trademark Act of 1946, or of an owner of a
protected plant variety under the Plant Variety Protection
Act (7 U.S.C. 2321 et seq.), in a manner that takes property
in violation of the fifth and fourteenth amendments of the
United States Constitution, shall be liable to the party
injured in a civil action in Federal court for compensation
for the harm caused by such violation.
(2) Effect on other relief.--Nothing in this subsection
shall prevent or affect the ability of a party to obtain
declaratory or injunctive relief under section 4 of this Act
or otherwise.
(c) Compensation.--Compensation under subsection (a) or
(b)--
(1) may include actual damages, profits, statutory damages,
interest, costs, expert witness fees, and attorney fees, as
set forth in the appropriate provisions of title 17 or 35,
United States Code, the Trademark Act of 1946, and the Plant
Variety Protection Act; and
(2) may not include an award of treble or enhanced damages
under section 284 of title 35, United States Code, section
504(d) of title 17, United States Code, section 35(b) of the
Trademark Act of 1946 (15 U.S.C. 1117 (b)), and section
124(b) of the Plant Variety Protection Act (7 U.S.C.
2564(b)).
(d) Burden of Proof.--In any action under subsection (a) or
(b)--
(1) with respect to any matter that would have to be proved
if the action were an action for infringement brought under
the applicable Federal statute, the burden of proof shall be
the same as if the action were brought under such statute;
and
(2) with respect to all other matters, including whether
the State provides an adequate remedy for any deprivation of
property proved by the injured party under subsection (a),
the burden of proof shall be upon the State or State
instrumentality.
(e) Effective Date.--This section shall apply to violations
that occur on or after the date of enactment of this Act.
SEC. 6. RULES OF CONSTRUCTION.
(a) Jurisdiction.--The district courts shall have original
jurisdiction of any action arising under this Act under
section 1338 of title 28, United States Code.
(b) Broad Construction.--This Act shall be construed in
favor of a broad protection of intellectual property, to the
maximum extent permitted by the United States Constitution.
(c) Severability.--If any provision of this Act or any
application of such provision to any person or circumstance
is held to be unconstitutional, the remainder of this Act and
the application of the provision to any other person or
circumstance shall not be affected.
____
Intellectual Property Protection Restoration Act of 2001--Section-by-
Section Summary
Recent Supreme Court decisions invalidated prior efforts by
Congress to abrogate state sovereign immunity in actions
arising under the federal intellectual property laws. The
Court's decisions give states an unfair advantage in the
intellectual property marketplace by shielding them from
money damages when they infringe the rights of private
parties, while leaving them free to obtain money damages when
their own rights are infringed. These decisions also have the
potential to impair the rights of private intellectual
property owners, discourage technological innovation and
artistic creation, and compromise the ability of the United
States to fulfill its obligations under a variety of
international treaties. The Intellectual Property Protection
Restoration Act of 2001 creates reasonable incentives for
states to waive their immunity in intellectual property cases
and participate in the intellectual property marketplace on
equal terms with private parties. The bill also provides new
remedies for state infringements that rise to the level of
constitutional violations.
Sec. 1. Short title; references.--This Act may be cited as
the ``Intellectual Property Protection Restoration Act of
2001.
Sec. 2. Purposes.--Legislative purposes in support of this
Act.
Sec. 3. Intellectual property remedies equalization.--
Places states on an equal footing with private parties by
eliminating any damages remedy for infringement of state-
owned intellectual property unless the state has waived its
immunity from any damages remedy for infringement of
privately-owned intellectual property. Intellectual property
that the state owned before the enactment of this Act is not
affected.
Sec. 4. Clarification of remedies available for statutory
violations by state officers and employees.--Affirms the
availability of injunctive relief against state officials who
violate the federal intellectual property laws. Such relief
is authorized under the doctrine of Ex parte Young, 209 U.S.
123 (1908), which held that an individual may sue a state
official for prospective relief requiring the state official
to cease violating federal law, even if the state itself is
immune from suit under the eleventh amendment. This section
also affirms that state officials may be personally liable
for violations of the intellectual property laws.
Sec. 5. Liability of states for constitutional violations
involving intellectual property.--Establishes a right to
compensation for state infringements of intellectual property
that rise to the level of constitutional violations.
Compensation shall be measured by the statutory remedies
available under the federal intellectual property laws, but
may not include treble damages.
Sec. 6. Rules of construction.--Establishes rules for
interpreting this Act.
______
By Mr. THOMPSON:
S. 1612. A bill to provide Federal managers with tools and
flexibility in areas such as personnel, budgeting, property management
and disposal, and for other purposes; to the Committee on Governmental
Affairs.
______
By Mr. THOMPSON:
S. 1613. A bill to provide for expedited congressional consideration
of ``Freedom to Manage'' legislative proposals transmitted by the
President to Congress to eliminate or reduce barriers to efficient
government operations that are posed by laws that apply to one or more
agencies, including government-wide laws; to the Committee on
Governmental Affairs.
Mr. THOMPSON. Mr. President, I am introducing legislation today that
was referred to Congress by President Bush. The legislation seeks to
extensively reform management of the Federal Government. I applaud the
Administration's attention to the issue of government reform, and I
will work with my colleagues on the Governmental Affairs Committee and
in Congress to enact this important package, because it includes
comprehensive reforms that will make government work better.
The Governmental Affairs Committee has documented the problems
affecting Executive Branch operations for some time, and I am impressed
with the President's attention to these issues at this critical time in
our Nation's history. The President's package of management reform
proposals will allow government managers to carry out their critical
responsibilities for the American public more effectively. It's obvious
the Administration understands how very important government
[[Page S11369]]
reform is to ensuring that the government can accomplish its varied
missions.
The legislation, which includes the Freedom to Manage Act and the
Managerial Flexibility Act, makes it easier for Executive Branch
management to increase accountability, reduce unnecessary costs, and
manage for results. The Managerial Flexibility Act will help the
government recruit and retain people with needed skills, increase the
flexibility of federal property management, and allow agencies to
budget for results. The Freedom to Manage Act would allow other reform
proposals, submitted to the Congress by the Administration, to be
considered expeditiously by the Congress.
I ask unanimous consent that a summary of this important legislation
be printed in the Record.
There being no objection, the summary was ordered to be printed in
the Record, as follows:
Freedom to Manage Reform Package--A Summary
Freedom to Manage Act of 2001
This legislation establishes a procedure under which heads
of departments and agencies can identify statutory barriers
to good management. Congress, in turn, would quickly consider
those obstacles and act to remove them.
Managerial Flexibility Act of 2001
This legislation provides federal managers with increased
flexibility in managing personnel; assigns agencies the
responsibility for funding the full government share of the
accruing cost of all retirement and retiree health care
benefits for Federal employees; and gives agencies greater
flexibility in managing property.
Reform Personnel Management. This proposal gives Federal
agencies and managers increased discretion and flexibility in
attracting, managing, and retaining a high quality workforce.
It empowers Federal agencies to determine when, if, and how
they might offer new employee incentives, and it enhances the
agencies' authority to use recruitment, retention, and
relocation bonuses to compete better with the private sector.
The bill permits agencies to develop alternative personnel
systems to attract and hire employees that best fit the
position, and it will enable managers to offer early
retirement packages. By enacting important changes to the
Senior Executive Service, this proposal also permits high-
level Federal managers to be treated more like their private
sector counterparts, by results-based performance standards
that hold them accountable.
Budgeting and Managing for Results.--Full Funding for
Federal Retiree Costs: This proposal charges Federal agencies
the full accruing cost of all retirement and retiree health
care benefits for Federal employees. This proposal is the
first government-wide step in linking the full cost of
resources used with the results achieved, which will make
management in the Executive Branch more performance-oriented.
This proposal will not change any of the benefits provided by
these programs, and will not change the level of employee
contributions.
Reform Federal Property Management.--The Federal Government
owns or controls more than 24 million acres of land and
facilities, but existing rules restrict the government's
ability to consolidate or release underperforming property.
In many instances, Federal agencies lack the incentives and
authority to renovate the property or tap its equity. This
proposal facilitates a total asset management approach to
Federal property issues by: improving life cycle planning and
management; allowing greater flexibility to optimize asset
performance; and providing incentives for better property
management. Modernizing these processes enhances government-
wide property management, bringing the practices federal
agencies use to manage their assets into the 21st century.
______
By Mr. SESSIONS (for himself, Mrs. Hutchison, Mr. Edwards, Mr.
Shelby, Mr. Hollings, Mr. Lott, Mr. Cleland, Mr. Cochran, Mr.
Helms, and Mr. Inhofe):
S. 1614. A bill to provide for the preservation and restoration of
historic buildings at historically women's public colleges or
universities; to the Committee on Energy and Natural Resources.
Mr. SESSIONS. Mr. President, today I rise to re-introduce legislation
to help preserve the heritage of eight historic women's colleges and
universities. The legislation would authorize the Secretary of the
Interior to provide restoration and preservation grants for historic
buildings and structures at eight historically women's colleges or
universities. The bill directs the Secretary to award $16 million
annually from fiscal years 2002 through 2006 to the eight institutions.
Funds would be awarded from the National Historic Preservation Fund and
are subject to a 50 percent matching requirement from non-federal
sources.
The sweeping changes of the industrial revolution prompted Congress
in 1862, with further action in 1887 and 1890, to provide Federal
support for the establishment of agricultural and mechanical colleges
with growing emphasis on industrial and technical education.
Unfortunately, these ``land-grant'' schools were only for men, leaving
women untrained as they entered the expanded work force. Women's
advocates, such as Miss Julia Tutwiler in Alabama, immediately
recognized the need for institutions where women could receive an equal
education. Beginning in 1836, eight institutions in seven separate
States were established as industrial schools for women. These
institutions include the Mississippi University for Women, in Alabama
the University of Montevallo, Georgia College and State University,
Wesleyan College also in Georgia, Winthrop University in South
Carolina, University of North Carolina at Greensboro, Texas Women's
University, and the University of Science and Arts of Oklahoma. These
eight institutions remain open, providing a liberal arts education for
both men and women, but retain significant historical and academic
features of those pioneering efforts to educate women. Despite their
continued use, many of the structures located on these campuses are
facing destruction or closure because preservation funds are not
available. My legislation would enable these buildings to be preserved
and maintained by providing funding for the historic buildings located
at the colleges and universities that I have identified. Funding would
originate from the National Historic Preservation Fund. No more than
$16 million would be available and would be distributed in equal
amounts to the eight institutions. My bill also provides that a 50
percent matching contribution from non-federal sources and assures that
alterations in properties using the funds are subject to approval from
the Secretary of the Interior and reasonable public access for
interpretive and educational purposes.
These historically women's colleges and universities have contributed
significantly to the effort to attain equal opportunity through
postsecondary education for women, low income individuals, and
educationally disadvantaged Americans. I believe it is our duty to do
all we can to preserve these historic institutions and I ask my
colleagues for their support.
______
By Mr. TORRICELLI (for himself and Mr. Corzine):
S. 1616. A bill to provide for interest on late payments of health
care claims; to the Committee on Finance.
Mr. TORRICELLI. Mr. President, I rise today to introduce the ``Prompt
Payment Bill''. This legislation addresses the need for the managed
care industry to not only take responsibility for their payments on
time, but to face specific penalties if they do not do so.
HMOs are one of the few entities that continue to be shielded from
lawsuits. It is shocking that under current federal and most state
laws, there are no consequences when HMOs fail to pay their bills in a
timely manner. HMOs even have the right to drop out of Medicare simply
because they are unsatisfied with the rate, let alone the timeliness,
of what the government is paying them. It is time that this lack of
accountability is addressed and significantly increased.
In my State of New Jersey, there is in fact a ``prompt pay'' law that
requires HMOs to pay their bills in thirty days from receiving a claim
from a beneficiary, hospital or health care provider. However, a 1998
survey of twenty-four New Jersey hospitals found that more than $150
million in HMO payments were held up for sixty days or longer. That
same year, sixty percent of New Jersey hospitals lost money, over $172
million in statewide losses. HMOs simply face no consequences from
state regulatory agencies and the enforcement mechanisms currently in
place are too weak. If we let this continue, we will jeopardize the
care that people receive from their health care providers.
For these reasons, I am introducing the ``Prompt Payment Bill''. This
amendment will move HMOs considerably closer to assuming the financial
responsibilities for the health care coverage they are being paid to
provide.
[[Page S11370]]
Specifically, it will call for a ten-percent interest penalty per year
on any payment not made within 45 days. If the HMO continues to be
delinquent, beneficiaries or health care providers can bring the HMO to
court to make them pay their bills.
I urge my colleagues to join me in my efforts in making the managed
care industry significantly more accountable to their beneficiaries.
______
By Mr. DODD (for himself, Mr. Warner, Mr. Sarbanes, Mr. Schumer,
Mrs. Murray, Mr. Cleland, Mr. Corzine, and Mr. Daschle):
S. 1617. A bill to amend the Workforce Investment Act of 1998 to
increase the hiring of firefighters, and for other purposes; to the
Committee on Health, Education, Labor, and Pensions.
Mr. DODD. Mr. President, I rise today with my colleagues Senator
Warner, Senator Sarbanes, Senator Schumer, Senator Murray, Senator
Cleland, and Senator Corzine to introduce legislation to ensure that
America's firefighters have the staffing they need to safely do their
jobs.
It has been nearly seven weeks since the terrorist attacks on the
World Trade Center and the Pentagon. We are still assessing the damage
done by those attacks, but one thing is already absolutely certain, the
world has changed. And as we begin to figure out all of the ways in
which the world has changed, we are starting to reassess our national
priorities. We, as a Nation, are taking stock of our strengths and
vulnerabilities, and we're identifying ways to improve our capacity to
deal with the threats that became so apparent on September 11.
One of the fundamental new realities that we find ourselves facing
is that America needs to be better prepared to respond to deliberate
acts of mass destruction. We need to be better prepared to deal with
acts of bioterrorism and we need to be prepared to help save people
even if they are deliberately attacked with toxic chemical weapons. In
short, we need to be prepared for what seemed unthinkable.
The legislation that we are proposing will help ensure that America's
local fire agencies have the human resources that they need to meet the
challenges which they will address as America faces the challenge of an
extended war against terrorism.
Just as we have called up the National Guard to meet the increased
need for more manpower in the military, we need to make a national
commitment to hire the firefighters necessary to protect the American
people here on the home front. The legislation that we are proposing
will put 75,000 new firefighters on America's streets over the next
seven years.
Many of us in Congress have long understood that America's
firefighters make extraordinary contributions to their communities
everyday. But on September 11, we got a glimpse of a larger role that
the men and women of the fire service, not to mention police forces
play. The national role of our firefighters has become apparent. They
have made the nation proud.
Despite the increasingly important role firefighters play both in our
local communities and as part of our national homeland defense system,
communities over the years have not maintained the level of staffing
necessary to ensure the safety of the public or even of the
firefighters themselves.
Since 1970, the number of firefighters as a percentage of the U.S.
workforce has steadily declined. Today in America there is only one
firefighter for every 280 citizens. We have fewer firefighters per
capita than nurses and police officers. We need to turn this trend
around, now more than ever.
Understaffing is dangerous for the public and for firefighters.
Chronic understaffing means that many firefighters do not have the
backup and on-the-ground support they need to do their jobs safely. The
sad consequence is that about every three days we lose a firefighter in
the line of duty. And on some days, the losses are unimaginably high.
We learned on September 11 that the American homeland is not immune
from unthinkable acts of violence. Knowing that, we have an obligation
to take every reasonable step to mitigate the potential damage that may
be caused by future attacks.
Again, just as we have called up the National Guard to meet the
increased need for more manpower in the military, we need to make a
national commitment to hire firefighters to protect the American
people. In these difficult times, it is both necessary and proper for
us to send for reinforcements for our domestic defenders. The SAFER Act
will make that commitment.
This legislation honors America's firefighters. It acknowledges the
men and women who charge up the stairs while everybody else is running
down them. But it is more than that. This legislation is an investment
in America's security, an investment that will rebuild public
confidence and help reassure Americans that their homes and businesses
are as well protected as possible.
I ask unanimous consent that the text of the bill be printed in the
Record.
S. 1617
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. STAFFING FOR ADEQUATE FIRE AND EMERGENCY RESPONSE.
Title III of the Workforce Investment Act of 1998 (Public
Law 105-220; 112 Stat. 1080) is amended by adding at the end
the following:
``Subtitle E--Staffing for Adequate Fire and Emergency Response
``SEC. 351. SHORT TITLE.
``This subtitle may be cited as the `Staffing for Adequate
Fire and Emergency Response Act of 2001' or as the `SAFER Act
of 2001'.
``SEC. 352. PURPOSES.
``The purposes of this subtitle are--
``(1) to expand on the firefighter assistance grant program
under section 33 of the Federal Fire Prevention and Control
Act of 1974 (15 U.S.C. 2229), in order to ensure adequate
funding to increase the number of firefighting personnel
throughout the Nation;
``(2) to substantially increase the hiring of firefighters
so that communities can--
``(A) meet industry minimum standards for providing
adequate protection from acts of terrorism and hazards; and
``(B) enhance the ability of firefighter units to save
lives, save property, and effectively respond to all types of
emergencies; and
``(3) to promote that substantial increase in hiring by
establishing a program of grants, authorized for 7 years, to
provide direct funding to States, units of local government,
and Indian tribal organizations for firefighter salaries and
benefits.
``SEC. 353. DEFINITIONS.
``In this subtitle:
``(1) Eligible entity.--The term `eligible entity' means--
``(A) a State, a unit of local government, a tribal
organization, or another public entity; or
``(B) a multi-jurisdictional or regional consortia of
entities described in subparagraph (A).
``(2) Firefighter.--The term `firefighter' has the meaning
given the term `employee in fire protection activities' in
section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C.
203).
``(3) Indian tribe; tribal organization.--The terms `Indian
tribe' and `tribal organization' have the meanings given the
terms in section 4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b).
``(4) Secretary.--The term `Secretary' means the Secretary
of Labor, acting after consultation with the Director of the
Federal Emergency Management Agency.
``(5) State.--The term `State' means each of the several
States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the United States Virgin
Islands, Guam, American Samoa, and the Commonwealth of the
Northern Mariana Islands.
``SEC. 354. AUTHORITY TO MAKE GRANTS.
``(a) Definition.--In this section, the term `qualifying
entity', used with respect to a fiscal year, means any
eligible entity (including a State) that has submitted an
application under section 355 for the fiscal year that meets
the requirements of this subtitle and such additional
requirements as the Secretary may prescribe.
``(b) Grant Authorization.--The Secretary may make grants
to eligible entities to pay for the Federal share of the cost
of carrying out projects to hire firefighters.
``(c) Minimum Amount.--
``(1) Amount.--For any fiscal year, the Secretary shall
ensure that the qualifying entities in each State shall
receive, through grants made under this section, a total
amount that is not less than \1/2\ of 1 percent of the amount
appropriated under section 362 for the fiscal year.
``(2) Exception.--Paragraph (1) shall not apply for a
fiscal year if the Secretary makes a grant under this section
to every qualifying entity for the fiscal year.
``(d) Grant Periods.--The Secretary may make grants under
this section for periods of 3 years.
``(e) Federal Share.--
``(1) In general.--The Federal share of the cost of
carrying out a project to hire firefighters under this
subtitle shall be not more than 75 percent.
[[Page S11371]]
``(2) Non-federal share.--The non-Federal share shall be
provided--
``(A) in cash;
``(B) in the case of a State or unit of local government,
from assets received through an asset forfeiture program; or
``(C) in the case of a tribal organization or the Bureau of
Indian Affairs, from any Federal funds made available for
firefighting functions to assist an Indian tribe.
``(3) Waiver.--The Secretary may waive the requirements of
paragraphs (1) and (2) for an eligible entity.
``SEC. 355. APPLICATIONS.
``(a) In General.--To be eligible to receive a grant under
this subtitle, an entity shall submit an application to the
Secretary at such time, in such manner, and containing such
information as the Secretary may prescribe.
``(b) Contents.--Each such application shall--
``(1) include a long-term strategy and detailed
implementation plan, for the hiring to be conducted under the
grant, that reflects consultation with community groups and
appropriate private and public agencies and reflects
consideration of a statewide strategy for such hiring;
``(2) specify the reasons why the entity is unable to hire
sufficient firefighters to address the entity's needs,
without Federal assistance;
``(3)(A) specify the average number of firefighters
employed by the entity during the fiscal year prior to the
fiscal year for which the application is submitted; and
``(B) outline the initial and planned level of community
support for implementing the strategy and plan, including the
level of financial and in-kind contributions or other
tangible commitments;
``(4)(A) specify plans for obtaining necessary support and
continuing the employment of a greater number of firefighters
than the number specified under paragraph (3)(A), following
the conclusion of Federal assistance under this subtitle; and
``(B) include an assurance that the entity will continue
the employment of firefighters hired with funds made
available through the grant for at least 1 year after the end
of the grant period; and
``(5) include assurances that the entity will, to the
extent practicable, seek, recruit, and hire members of racial
and ethnic minority groups and women in order to increase the
ranks of minorities and women within the entity's firefighter
units.
``(c) Small Jurisdictions.--Notwithstanding any other
provision of this subtitle, the Secretary may waive 1 or more
of the requirements of subsection (b), and may make special
provisions to facilitate the expedited submission,
processing, and approval of an application under this
section, for an eligible entity that is a unit of local
government, or an eligible entity serving a fire district,
that has jurisdiction over an area with a population of less
than 50,000.
``(d) Preference.--In awarding grants under this subtitle,
the Secretary--
``(1) shall give preference to a unit of local government;
and
``(2) may give preference, where feasible, to an eligible
entity that submits an application containing a plan that--
``(A) provides for hiring (including rehiring) career
firefighters; and
``(B) requires the entity to contribute a non-Federal share
of more than 25 percent of the cost of carrying out a project
to hire the firefighters.
``(e) State and Local Applications.--If a unit of local
government for a community, and the State in which the
community is located, submit applications under this section
for a fiscal year to carry out a project in a community, and
the unit of local government and State are qualifying
entities under section 354(a), the Secretary--
``(1) shall make a grant under this subtitle to the unit of
local government for that year; and
``(2) shall not make a grant under this subtitle to the
State to carry out a project in that community for that year.
``SEC. 356. USE OF FUNDS.
``(a) In General.--An eligible entity that receives a grant
under this subtitle shall use the funds made available
through the grant to hire career firefighters. The funds may
only be used to increase the number of firefighters employed
by the agency from the number specified under section
355(b)(3)(A). The funds may be used for salaries and benefits
for the firefighters.
``(b) Hiring Costs.--
``(1) Fiscal year 2002.--For fiscal year 2002, in hiring
any 1 firefighter, the entity may not use more than $90,000
of such funds.
``(2) Subsequent years.--For each subsequent fiscal year,
in hiring any 1 firefighter, the entity may not use more than
$90,000 of such funds, increased or decreased by the same
percentage as the percentage by which the Consumer Price
Index for All Urban Consumers (United States city average),
published by the Secretary of Labor, has increased or
decreased by September of the preceding fiscal year from such
Index for September 2001.
``(3) Waivers.--The Secretary may waive the requirements of
paragraph (1) or (2) for an eligible entity.
``(c) Supplement, not Supplant.--Funds appropriated
pursuant to the authority of this subtitle shall be used to
supplement and not supplant other Federal, State, and local
public funds expended to hire firefighters.
``SEC. 357. TECHNICAL ASSISTANCE.
``The Secretary may provide technical assistance to
eligible entities to further the purposes of this Act.
``SEC. 358. MONITORING AND EVALUATIONS.
``(a) Monitoring Components.--Each project funded through a
grant made under this subtitle shall contain a monitoring
component, developed pursuant to regulations established by
the Secretary. The monitoring required by this subsection
shall include systematic identification and collection of
data about the project throughout the period of the project
and presentation of such data in a usable form.
``(b) Evaluation Components.--The Secretary may require
that selected grant recipients under this subtitle conduct
local evaluations or participate in a national evaluation,
pursuant to regulations established by the Secretary. Such
local or national evaluations may include assessments of the
implementation of different projects. The Secretary may
require selected grant recipients under this subtitle to
conduct local outcome evaluations to determine the
effectiveness of projects under this subtitle.
``(c) Periodic Reports.--The Secretary may require a grant
recipient under this subtitle to submit to the Secretary the
results of the monitoring and evaluations required under
subsections (a) and (b) and such other data and information
as the Secretary determines to be reasonably necessary.
``(d) Revocation or Suspension of Funding.--If the
Secretary determines, as a result of the monitoring or
evaluations required by this section, or otherwise, that a
grant recipient under this subtitle is not in substantial
compliance with the terms and requirements of an approved
grant application submitted under section 355, the Secretary
may revoke the grant or suspend part or all of the funding
provided under the grant.
``SEC. 359. ACCESS TO DOCUMENTS.
``For the purpose of conducting an audit or examination of
a grant recipient that carries out a project under this
subtitle, the Secretary and the Comptroller General of the
United States shall have access to any pertinent books,
documents, papers, or records of the grant recipient and any
State or local government, person, business, or other entity,
that is involved in the project.
``SEC. 360. REPORT TO CONGRESS.
``Not later than September 30, 2008, the Secretary shall
submit a report to Congress concerning the experiences of
eligible entities in carrying out projects under this
subtitle, and the effects of the grants made under this
subtitle. The report may include recommendations for such
legislation as the Secretary may consider to be appropriate,
which may include reauthorization of this subtitle.
``SEC. 361. REGULATIONS.
``The Secretary may issue regulations to carry out this
subtitle.
``SEC. 362. AUTHORIZATION OF APPROPRIATIONS.
``(a) In General.--There is authorized to be appropriated
to carry out this subtitle--
``(1) $1,000,000,000 for fiscal year 2002;-
``(2) $1,030,000,000 for fiscal year 2003;
``(3) $1,061,000,000 for fiscal year 2004;
``(4) $1,093,000,000 for fiscal year 2005;
``(5) $1,126,000,000 for fiscal year 2006;
``(6) $1,159,000,000 for fiscal year 2007; and
``(7) $1,194,000,000 for fiscal year 2008.
``(b) Availability.--Funds appropriated under subsection
(a) for a fiscal year shall remain available until the end of
the second succeeding fiscal year.''.
SEC. 2. CONFORMING AMENDMENT.
The table of contents in section 1(b) of the Workforce
Investment Act of 1998 (Public Law 105-220; 112 Stat. 936) is
amended, in the items relating to title III, by adding at the
end the following:
``Subtitle E--Staffing for Adequate Fire and Emergency Response
``Sec. 351. Short title.
``Sec. 352. Purposes.
``Sec. 353. Definitions.
``Sec. 354. Authority to make grants.
``Sec. 355. Applications.
``Sec. 356. Use of funds.
``Sec. 357. Technical assistance.
``Sec. 358. Monitoring and evaluations.
``Sec. 359. Access to documents.
``Sec. 360. Report to Congress.
``Sec. 361. Regulations.
``Sec. 362. Authorization of appropriations.''.
Mr. WARNER. Mr. President, I am pleased to join my colleague from
Connecticut, Senator Dodd, in introducing legislation that will address
a pressing issue for many States and localities which do not have the
necessary funding to hire additional firefighters. The SAFER Act
establishes a new grant program that will provide direct funding to
fire and rescue departments to cover some of the costs associated with
hiring and training new firefighters.
The brave women and men serving in our nation's fire service are on
the front lines in America's new war on terrorism. They have a critical
role in our homeland defense initiatives.
The SAFER Act would help ensure adequate staffing for fire and
emergency response. Earlier this year the National Fire Protection
Association, a nonprofit organization which develops and promotes
scientifically based consensus codes and standards, adopted
[[Page S11372]]
a standard on response operational and deployment issues pertaining to
fire and rescue departments. Based upon that standard, almost two
thirds of fire companies across the country operate with inadequate
staffing. The cost for many municipalities to meet these new safety
standards, however, would be significant.
Many Americans are not aware of the staffing shortages we may face in
our fire and rescue departments. The role of firefighter in our
communities is far greater than most realize. They are first to respond
to hazardous materials calls, chemicals emergencies, biohazard
incidents, and water rescues. These are dangers which our fire rescue
personnel deal with on a daily basis.
Well over 300 firefighters lost their lives in the line of duty in
responding to the World Trade Center terrorist attacks. We need to
recognize our firefighters and emergency personnel around the country
who continue to make sacrifices in their service to the public. We must
provide our fire and rescue departments with sufficient funding to hire
the necessary personnel in order to ensure that our nation's
communities are adequately protect.
I am honored to be an original cosponsor of the important
legislation. I encourage my colleagues to support this measure and
address this critical need of our fire and rescue services throughout
the country.
______
By Mr. KENNEDY (for himself, Mr. Brownback, Ms. Cantwell, Ms.
Collins, Mr. Edwards, Mr. Hagel, Mr. Reid, and Mr. Ensign):
S. 1618. A bill to enhance the border security of the United States,
and for other purposes; to the Committee on the Judiciary.
Mr. KENNEDY. Mr. President, it is a privilege to join Senators
Brownback, Cantwell, Collins, Edwards, Hagel, Reid, and Ensign in
introducing legislation to strengthen the security of our borders and
enhance our ability to deter potential terrorists. There is an urgent
need to improve intelligence and technology capabilities, enhance the
ability to screen individuals before they arrive at our borders, and
improve the monitoring of foreign nationals already within the United
States.
In strengthening the security of our borders, we must also safeguard
the unobstructed entry of the more than 31 million persons who enter
the U.S. legally each year as visitors, students, and temporary
workers. Many of them cross the Canadian and Mexican borders to conduct
daily business or visit close family members.
We must also live up to our history and heritage as a Nation of
immigrants. Immigration is essential to who we are as Americans.
Continued immigration is part of our national well-being, our identity
as a Nation, and our strength in today's world. In defending the
Nation, we are also defending the fundamental constitutional principles
that have made America strong in the past and will make us even
stronger in the future.
Our action must strike a careful balance between protecting civil
liberties and providing the means for law enforcement to identify,
apprehend and detain potential terrorist. It makes no sense to enact
reforms that severely limit immigration into the United States.
``Fortress America,'' even if it could be achieved, is an inadequate
and ineffective response to the terrorist threat.
A major goal of this legislation is to improve coordination and
information-sharing by the Department of State, the Immigration and
Naturalization Service, and law enforcement and intelligence agencies.
It will require the Department of State and the INS to work with the
Office of Homeland Security and the recently formed Foreign Terrorist
Tracking Task Force to submit and implement a plan to improve their
access to critical security information. It will give those responsible
for screening visa applicants and persons entering the U.S. the tools
they need to make informed decisions.
We must provide enforcement personnel at our ports of entry with
greater resources and technology. These men and women are a primary
defense in the battle against terrorism. This legislation will see that
they receive adequate pay, can hire necessary support staff, and are
well-trained to identify individuals who pose a security threat.
The anti-terrorism bill recently passed by the Senate addressed the
need for machine-readable passports, but it did not focus on machine-
readable visas, a necessary part of our efforts to improve border
security. This legislation allows the Department of State to raise fees
through the use of machine-readable visas and use the funds collected
from those fees to improve technology at our ports of entry.
We must do more to improve our ability to screen individuals along
our entire North American perimeter. This legislation directs the
Department of State and the INS to work with the Office of Homeland
Security and the Foreign Terrorist Tracking Task Force to strengthen
our ability to screen individuals at the Perimeter before they reach
our continent. We can work with Canada and Mexico to coordinate these
efforts.
We must also strengthen our ability to monitor foreign nationals in
the United States. In 1996, Congress enacted legislation mandating the
development of an automated entry/exit control system to record the
entry of every non-citizen arriving in the U.S., and to match it with
the record of departure. Although technology is currently available for
such a system, it has not been implemented because of the high costs
involved. Our legislation builds on the anti-terrorism bill and
provides greater direction to the INS for implementing the entry/exit
system.
We must improve the ability of foreign service officers to detect and
intercept potential terrorists before they arrive in the U.S. Most
foreign nationals who travel here must apply for visas at American
consulates overseas. Traditionally, consular officers have focused on
interviewing applicants to determine whether they are likely to violate
their visa status. Although this review is important, consular officers
must also be trained specifically to screen for security threats.
We must require all airlines to electronically transmit passenger
lists to destination airports in the United States, so that once the
planes have landed, law enforcement authorities can intercept
passengers who are on federal lookout lists. United States airlines
already do this, but some foreign airlines do not. Our legislation
requires all airlines to transmit passenger manifest information prior
to the arrival of flight in the U.S.
In 1996, Congress established a program to collect information on
non-immigrant foreign students and participants in exchange programs.
Although a pilot phase of this program ended in 1999, a permanent
system has not yet been implemented. Congress passed provisions in the
anti-terrorism bill for the quick and effective implementation of this
system by 2003, but gaps still exist. This legislation will increase
the data collected by the monitoring to include the date of entry, the
port of entry, the date of school enrollment, and the date the student
leaves the school. It requires the Department of State and INS to
monitor students who have been given visas, and to notify schools of
their entry. It also requires a school to notify the INS if a student
does not actually report to the school. If institutions fail to comply
with these and other requirements, they should lose their ability to
admit foreign students.
INS regulations provide for regular reviews of over 26,000
educational institutions that are authorized to enroll foreign
students. However, inspections have been sporadic in recent years. This
legislation will require INS to monitor institutions on a regular
basis.
As we work to implement stronger tracking systems, we must also
remember that the vast majority of foreign visitors, students, and
workers who overstay their visas are not criminals or terrorists. It
would be wrong and unfair, without additional information, to
stigmatize them.
This legislation will also help restrict visas to foreign nationals
from countries that the Department of State has determined are sponsors
of terrorism. It precludes visas to individuals from countries that
sponsor terrorism, unless specific steps are taken to ensure the person
is not a security threat.
We must be able to retain highly skilled immigration inspectors. Our
legislation will provide incentives to immigration inspectors by
providing
[[Page S11373]]
them with the same benefits as other law enforcement personnel.
We must fully implement the use of biometric border crossing cards
and allow sufficient time for individuals to obtain these cards. Many
of these cards are already in use, but INS does not have the necessary
equipment to read the cards. This legislation appropriates needed funds
to enable the INS to purchase the machines, and it extends the deadline
for individuals crossing the border to acquire the cards.
When planes land at our airports, inspectors are under significant
time constraints to clear the planes and ensure the safety of all
departing passengers. Our legislation removes the existing 45 minute
deadline, providing inspectors with adequate time to clear and secure
aircraft.
The Senate took significant steps last week to improve immigration
security by passing the anti-terrorism bill, but further action is
needed. This legislation will strengthen the security of our borders
and enhance our ability to prevent future terrorist attacks, while also
reaffirming our tradition as a Nation of immigrants. I strongly urge my
colleagues to support it.
Mr. BROWNBACK. Mr. President, the terrorist attacks of September 11th
have unsettled the public's confidence in our Nation's security and
have raised concerns about whether our institutions are up to the task
of intercepting and thwarting would-be terrorists. Given that the
persons responsible for the attacks on the World Trade Center and the
Pentagon came from abroad, our citizens understandably ask how these
people entered the United States and what can be done to prevent their
kind from doing so again. Clearly, our immigration laws and policies
are instrumental to the war on terrorism. While the battle may be waged
on several fronts, for the man or woman on the street, immigration is
in many ways the front line of our defense.
The immigration provisions in the anti-terrorist bill passed by this
body last week, the USA Patriot Act of 2001, represent an excellent
first step toward improving our border security, but we must not stop
there. Our Nation receives millions of visitors each year, foreign
nationals who come to the United States to visit family, to do
business, to tour our sites, to study and learn. Most of these people
enter lawfully and mean well; they are good for our economy and are
potential ambassadors of good will to their home countries. However,
there is a small minority who intend us harm, and we must take
intelligent measures to keep these people out.
For that reason, I am pleased to introduce today, along with my
colleagues Senator Kennedy, Senator Collins, Senator Cantwell, Senator
Hagel, Senator Edwards, Senator Ensign, and Senator Reid, legislation
that looks specifically toward strengthening our borders and better
equipping the agencies that protect them. The Enhanced Border Security
Act of 2001 represents an earnest, thoughtful, and bipartisan effort to
refine our immigration laws and institutions to better combat the evil
that threatens our Nation.
The legislation recognizes that the war on terrorism is, in large
part, a war of information. To be successful, we must improve our
ability to collect, compile, and utilize information critical to our
safety and national security. This bill provides that the agencies
tasked with screening visa applicants and applicants for admission,
namely the Department of State and the Immigration and Naturalization
Service, must be provided with law enforcement and intelligence
information that will enable these agencies to identify alien
terrorists. By directing better coordination and access, this
legislation will bring together the agencies that have the information
and those that need it. With input from the Office of Homeland Security
and the President's Foreign Terrorist Tracking Task Force, this bill
will make prompt and effective information-sharing between these
agencies a reality.
In complement to last week's anti-terrorist act, this legislation
provides for necessary improvements in the technologies used by the
State Department and the Service. It provides funding for the State
Department to better interface with foreign intelligence information
and to better staff its infrastructure. It also provides the Service
with guidance on the implementation of the Integrated Entry and Exit
Data System, pointing the Service to such tools as biometric
identifiers in immigration documents, machine readable visas and
passports, and arrival-departure and security databases. In fact, this
legislation expressly enables the Service to take immediate advantage
of biometric technology by authorizing the funding to purchase
equipment for reading border-crossing cards that are already available
for use.
To the degree that we can reasonably and realistically do so, we
should attempt to intercept terrorists before they reach our borders.
Accordingly, we must consider security measures not only at domestic
ports of entry but also at foreign ports of departure. To that end,
this legislation directs the State Department and the Service, in
consultation with Office of Homeland Security, to examine, expand, and
enhance screening procedures to take place outside the United States,
as preinspection and preclearance. It also requires international air
carriers to transmit, in advance of their arrival, passenger manifests
for review by the Service. Further, it eliminates the 45-minute
statutory limit on airport inspections, which many feel compromises the
Service's ability to screen arriving flights properly. Finally, since
we should ultimately look to expand our security perimeter to include
Canada and Mexico, this bill requires these agencies to work with our
neighbors to create a collaborative North American Security Perimeter.
While this legislation mandates certain technological improvements,
it does not ignore the human element in the security equation. It
provides special training to border patrol agents, inspectors, and
foreign service officers to better identify terrorists and security
threats to the United States. Moreover, to help the Service retain its
most experienced people on the borders, this bill provides the Service
with increased flexibility in pay, certain benefit incentives, and the
ability to hire necessary support staff.
Finally, this legislation considers certain classes of aliens that
raise security concerns for our country: nationals from states that
sponsor terrorism and foreign students. With respect to the former,
this bill expressly prohibits the State Department from issuing a
nonimmigrant visa to any alien from a country that sponsors terrorism
until it has been determined that the alien does not pose a threat to
the safety or national security of the United States. With respect to
the latter, this legislation would fill data and reporting gaps in our
foreign student programs by requiring the Service to electronically
monitor the student at every stage in the student visa process. It
would also require the educational institution to report a foreign
student's failure to enroll and the Service to monitor schools'
compliance with this reporting requirement.
While we must be careful not to compromise our values or our economy,
we must take intelligent, immediate steps to enhance the security of
our borders. This legislation, consonant with both the USA Patriot Act
and President Bush's recent directive on immigration, would implement
many changes that are vital to our war on terrorism. I therefore urge
my colleagues to support it.
Ms. CANTWELL. Mr. President I rise today for two purposes. First, I
commend my colleague, Senator Kennedy, for his tireless work on
immigration issues and to offer my support for a bill he and Senator
Brownback are introducing today, the Enhanced Border Security Act of
2001. Also, I want to discuss legislation I will be introducing that
builds upon the visa technology standards provisions of the USA Patriot
Act of 2001 and fits within the construct of what Senators Kennedy and
Brownback seek to accomplish. Several of the provisions I have proposed
have already been incorporated by Senators Kennedy and Brownback, and I
will continue to work with them and my other colleagues to move other
provisions of my bill.
As a member of the Judiciary Committee, I have been honored to work
closely with Senator Kennedy to find ways to better protect our borders
and provide necessary support to the men
[[Page S11374]]
and women who work for the State Department, the Immigration and
Naturalization Service and the U.S. Customs Agency.
I, along with many of my colleagues, am currently pressing for
funding to triple the number of Immigration and Naturalization Service
and U.S. personnel on our northern border and improve border
technology, the authorization for which was included in the USA Patriot
Act. In the past, a severe lack of resources at our northern border has
compromised the ability of border control officials to execute their
duties. I am pleased that Congress made the tripling of these resources
a priority for national security, and I will continue to fight for full
funding of this measure. Senators Kennedy and Brownback have also
addressed these needs by improving INS pay standards, providing
additional training for Border Patrol and Customs agents, and
increasing information technology funding.
Let me commend Senators Kennedy and Brownback on the bill they are
introducing today. It reflects a thoughtful response to the current
situation at our borders, and I am pleased to be an original cosponsor.
I am aware that others have proposals to address border issues as well,
and I look forward to working with them.
The Enhanced Border Security Act of 2001 addresses several critical
issues. In hearings in recent weeks before the Immigration Subcommittee
and the Technology and, Terrorism Subcommittee, we heard repeated calls
for better sharing of law enforcement and intelligence information as
it relates to admitting aliens into the United States. The bill
addresses this problem by mandating INS and Department of State access
to relevant FBI information within one year. I am pleased that the
authors of this bill have included provisions to protect the privacy
and security of this information, and require limitations on the use
and repeated dissemination of the information.
Sharing U.S. law enforcement and intelligence information with the
State Department and INS is important, but it is also critical to build
upon our relationships with Canada and Mexico. We share a mutual
interest in protecting our respective borders. The U.S., Canada and
Mexico must also improve the sharing of information by our law
enforcement and intelligence communities. We need to develop a
perimeter national security program with our partners to our north and
south, and the Enhanced Border Security Act does just that.
The Enhanced Border Security Act requires airlines to provide
passenger manifests to the INS and Customs in advance of a flight's
arrival. This will be one more source of data, that will help INS
screen for those who should not be allowed to enter. It also tightens
controls on student visas, and restricts the issuance of visas to
aliens who are citizens of countries that sponsor terrorism. This is a
thoughtful bill and I urge my colleagues' support.
Last week with the enactment of the USA Patriot Act of 2001, the
Federal Government committed to developing a visa technology standard
that would facilitate the sharing of information related to the
admissibility of aliens into the United States. I proposed this
language recognizing that for many years, the U.S. law enforcement and
intelligence communities have maintained numerous, but separate, non-
interoperable databases. These databases are not easily or readily
accessible to front-line Federal agents responsible for making the
critical decisions of whether to issue a visa or to admit an alien into
the United States.
To build on and fulfill the goals of establishing this standard, my
bill will do three things. First, it will require technology be
implemented to track the initial entry and exit of aliens traveling on
a U.S. visa. We know now that several of the terrorists who attacked
America on September 11 were traveling on expired visas. We have had
the law in place for several years now, but due to concerns about
maintaining the flow of trade and tourism across our borders, concerns
I share, the provisions of Section 110 have not been fully implemented.
Technology will address those concerns, allowing electronic recordation
and verification of entry and exit data in an instant.
Second, I believe it is necessary to require the Departments of State
and Justice to work with the Office of Homeland Security to build a
cohesive electronic data sharing system. The system must incorporate
interoperability and compatibility within and between the databases of
the various agencies that maintain information relevant to determining
whether a visa should be issued or whether an alien should be admitted
into the United States. My legislation will require interoperable real-
time sharing of law enforcement and intelligence information relevant
to the issuance of a visa or an alien's admissibility to the U.S. The
provision will require that information is made available, although
with the appropriate safeguards for privacy and the protection of
intelligence sources, to the front line government agents making the
decisions to issue visas or to admit visa holding aliens to the United
States. I am pleased that Senators Kennedy and Brownback have adopted
these provisions into their legislation.
Finally, building on the provisions of the Kennedy-Brownback bill for
a Perimeter National Security Program, and on the technology standard
required under the USA Patriot Act, my legislation will require the
Department of State and the Attorney General to study and report to
Congress within 90 days on how best to facilitate sharing of
information that may be relevant to determining whether to issue a U.S.
visa. Our borders are only as secure as the borders of those countries
with whom we have agreements that visas are not required. We need to
build on our relationships with these international partners to secure
our respective borders through better information sharing.
Keeping terrorists out of the U.S. in the first place will reduce the
risks of terrorism within the U.S. in the future. Aliens known to be
affiliated with terrorists have been admitted to the U.S. on valid
visas simply because one agency in government did not share important
information with another department in a timely fashion. We must make
sure that this does not happen again.
Until now, we had hoped that agencies would voluntarily share this
information on a real-time and regular basis. This has not happened,
and although I know that the events of September 11 have led to serious
rethinking of our information-sharing processes and procedures, I think
it is time to mandate the sharing of fundamental information.
Advancements in technology have provided us with additional tools to
verify the identify of individuals entering our country without
impairing the flow of legitimate trade, tourism, workers and students.
It is time we put these tools to use.
Improving our national security is vitally important, but I will not
support measures that compromise America's civil liberties. Both the
bill being introduced today and the bill I will be introducing include
several safeguards to protect individuals' rights to privacy. The bills
provide that where databases are created or shared, there must be
protection of privacy and adequate security measures in place,
limitations on the use and re-dissemination of information, and
mechanisms for removing obsolete or erroneous information. Even in
times of urgent action, we must protect the freedoms that make our
country great.
______
By Mr. SANTORUM (for himself, Mr. Rockefeller, Mrs. Lincoln, and
Mr. McConnell):
S. 1619. A bill to amend title XVIII of the Social Security Act to
provide for coverage of substitute adult day care services under the
Medicare Program; to the Committee on Finance.
Mr. SANTORUM. Mr. President, I rise to join my colleagues Mr.
Rockefeller, Mrs. Lincoln, and Mr. McConnell to introduce bipartisan
legislation aimed at improving long-term care health and rehabilitation
options for Medicare beneficiaries, and also assisting family
caregivers.
We all recognize that our Nation needs to address sooner rather than
later challenges of financing long-term care services for our growing
aging population. The Congressional Budget Office has projected that
national expenditures for long-term care services for the elderly will
increase each year through 2040. But it is in just over a decade when
we will see these challenges become even more pronounced
[[Page S11375]]
when the 76 million baby boomers begin to turn 65. Baby boomers are
expected to live longer and greater numbers will reach 85 and older.
Given the expected growing costs of long-term care services, and
combined with the fact that today so many American families are already
serving as caregivers for aging or ailing seniors and providing such a
large portion of long-term care services, it is more important than
ever that we have in place quality options in how to best care for our
senior population about to dramatically increase.
This is why we are introducing the Medicare Adult Day Services
Alternative Act, legislation to offer home health beneficiaries more
options for receiving care in a setting of their own choosing, rather
than confining the provision of those benefits solely to the home.
This legislation would give beneficiaries the option to receive some
or all of their Medicare home health services in an adult day setting.
This would be a substitution, not an expansion, of services. The bill
would not make new people eligible for Medicare home health benefits or
expand the list of services paid for. In fact, this legislation may be
designed to produce net savings for the Medicare program.
Permitting homebound patients to receive their home health care in a
clinically-based senior day center, as an alternative to receiving it
at home, could result in significant benefits to the Medicare program,
such as reduced cost-per-episode, reduced numbers of episodes, as well
as mental and physical stimulation for patients.
Moreover, the Medicare Adult Day Services Alternative Act could well
have a positive impact on our economy, as it would enable caregivers to
attend to other things in today's fast-paced family life, such as
working a full- or part-time job and caring for children, knowing their
loved ones are well cared for. It is unfortunate that today many
caregivers have to choose between working or caring for a family
member. It is estimated that the average loss of income to these
caregivers is more than $600,000 in wages, pension, and Social Security
benefits. And by extension, the loss in productivity in United States
businesses is pegged at more than $10 billion annually.
But it does not have to be an either-or proposition. The Medicare
Adult Day Services Alternative Act is a creative solution to health
care delivery, which would adequately reimburse providers in a fiscally
responsible way. Located in every state in the United States and the
District of Columbia, adult day centers generally offer transportation,
meals, personal care, and counseling in addition to the medical
services and socialization benefits offered.
We can and should offer both our Medicare beneficiaries and family
caregivers more and better options for health care delivery, and that
is exactly what the Medicare Adult Day Services Alternative Act is
designed to do. This legislation is bipartisan, and is supported by
more than 20 national non-profit organizations concerned with the well-
being of America's older population and committed to representing their
interests.
I hope our colleagues will join us in this cause. I again thank
Senators Rockefeller, Lincoln and McConnell for working with me in this
effort, and ask unanimous consent that the text of the bill be printed
in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1619
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 ``Medicare Adult Day Services
Alternative Act of 2001''.
SEC. 2. FINDINGS.
Congress finds that--
(1) adult day care offers services, including medical care,
rehabilitation therapies, dignified assistance with
activities of daily living, social interaction, and
stimulating activities, to seniors who are frail, physically
challenged, or cognitively impaired;
(2) access to adult day care services provides seniors and
their familial caregivers support that is critical to keeping
the senior in the family home;
(3) more than 22,000,000 families in the United States
serve as caregivers for aging or ailing seniors, nearly 1 in
4 American families, providing close to 80 percent of the
care to individuals requiring long-term care;
(4) nearly 75 percent of those actively providing such care
are women who also maintain other responsibilities, such as
working outside of the home and raising young children;
(5) the average loss of income to these caregivers has been
shown to be $659,130 in wages, pension, and Social Security
benefits;
(6) the loss in productivity in United States businesses
ranges from $11,000,000,000 to $29,000,000,000 annually;
(7) the services offered in adult day care facilities
provide continuity of care and an important sense of
community for both the senior and the caregiver;
(8) there are adult day care centers in every State in the
United States and the District of Columbia;
(9) these centers generally offer transportation, meals,
personal care, and counseling in addition to the medical
services and socialization benefits offered; and
(10) with the need for quality options in how to best care
for our senior population about to dramatically increase with
the aging of the baby boomer generation, the time to address
these issues is now.
SEC. 3. COVERAGE OF SUBSTITUTE ADULT DAY CARE SERVICES UNDER
MEDICARE.
(a) Substitute Adult Day Care Services Benefit.--
(1) In general.--Section 1861(m) of the Social Security Act
(42 U.S.C. 1395x(m)) is amended--
(A) in the matter preceding paragraph (1), by inserting
``or (8)'' after ``paragraph (7)'';
(B) in paragraph (6), by striking ``and'' at the end;
(C) in paragraph (7), by adding ``and'' at the end; and
(D) by inserting after paragraph (7), the following new
paragraph:
``(8) substitute adult day care services (as defined in
subsection (ww));''.
(2) Substitute adult day care services defined.--Section
1861 of the Social Security Act (42 U.S.C. 1395x) is amended
by adding at the end the following new subsection:
``Substitute Adult Day Care Services; Adult Day Care Facility
``(ww)(1)(A) The term `substitute adult day care services'
means the items and services described in subparagraph (B)
that are furnished to an individual by an adult day care
facility as a part of a plan under subsection (m) that
substitutes such services for a portion of the items and
services described in subparagraph (B)(i) furnished by a home
health agency under the plan, as determined by the physician
establishing the plan.
``(B) The items and services described in this subparagraph
are the following items and services:
``(i) Items and services described in paragraphs (1)
through (7) of subsection (m).
``(ii) Meals.
``(iii) A program of supervised activities designed to
promote physical and mental health and furnished to the
individual by the adult day care facility in a group setting
for a period of not fewer than 4 and not greater than 12
hours per day.
``(iv) A medication management program (as defined in
subparagraph (C)).
``(C) For purposes of subparagraph (B)(iv), the term
`medication management program' means a program of services,
including medicine screening and patient and health care
provider education programs, that provides services to
minimize--
``(i) unnecessary or inappropriate use of prescription
drugs; and
``(ii) adverse events due to unintended prescription drug-
to-drug interactions.
``(2)(A) Except as provided in subparagraphs (B) and (C),
the term `adult day care facility' means a public agency or
private organization, or a subdivision of such an agency or
organization, that--
``(i) is engaged in providing skilled nursing services and
other therapeutic services directly or under arrangement with
a home health agency;
``(ii) meets such standards established by the Secretary to
ensure quality of care and such other requirements as the
Secretary finds necessary in the interest of the health and
safety of individuals who are furnished services in the
facility;
``(iii) provides the items and services described in
paragraph (1)(B); and
``(iv) meets the requirements of paragraphs (2) through (8)
of subsection (o).
``(B) Notwithstanding subparagraph (A), the term `adult day
care facility' shall include a home health agency in which
the items and services described in clauses (ii) through (iv)
of paragraph (1)(B) are provided--
``(i) by an adult day-care program that is licensed or
certified by a State, or accredited, to furnish such items
and services in the State; and
``(ii) under arrangements with that program made by such
agency.
``(C) The Secretary may waive the requirement of a surety
bond under paragraph (7) of subsection (o) in the case of an
agency or organization that provides a comparable surety bond
under State law.
``(D) For purposes of payment for home health services
consisting of substitute adult day care services furnished
under this title, any reference to a home health agency is
deemed to be a reference to an adult day care facility.''.
(b) Payment for Substitute Adult Day Care Services.--
Section 1895 of the Social Security Act (42 U.S.C. 1395fff)
is amended by adding at the end the following new subsection:
[[Page S11376]]
``(f) Payment Rate for Substitute Adult Day Care
Services.--In the case of home health services consisting of
substitute adult day care services (as defined in section
1861(ww)), the following rules apply:
``(1) The Secretary shall estimate the amount that would
otherwise be payable under this section for all home health
services under that plan of care other than substitute adult
day care services for a period specified by the Secretary.
``(2) The total amount payable for home health services
consisting of substitute adult day care services under such
plan may not exceed 95 percent of the amount estimated to be
payable under paragraph (1) furnished under the plan by a
home health agency.''.
(c) Adjustment in Case of Overutilization of Substitute
Adult Day Care Services.--
(1) Monitoring expenditures.--Beginning with fiscal year
2003, the Secretary of Health and Human Services shall
monitor the expenditures made under the medicare program
under title XVIII of the Social Security Act (42 U.S.C. 1395
et seq.) for home health services (as defined in section
1861(m) of such Act (42 U.S.C. 1395x(m))) for the fiscal
year, including substitute adult day care services under
paragraph (8) of such section (as added by subsection (a)),
and shall compare such expenditures to expenditures that the
Secretary estimates would have been made for home health
services for that fiscal year if subsection (a) had not been
enacted.
(2) Required reduction in payment rate.--If the Secretary
determines, after making the comparison under paragraph (1)
and making such adjustments for changes in demographics and
age of the medicare beneficiary population as the Secretary
determines appropriate, that expenditures for home health
services under the medicare program, including such
substitute adult day care services, exceed expenditures that
would have been made under such program for home health
services for a year if subsection (a) had not been enacted,
then the Secretary shall adjust the rate of payment to adult
day care facilities so that total expenditures for home
health services under such program in a fiscal year does not
exceed the Secretary's estimate of such expenditures if
subsection (a) had not been enacted.
(d) Effective Date.--The amendments made by this section
shall apply to items and services furnished on or after
January 1, 2002.
Mr. ROCKEFELLER. Mr. President, I am delighted to join my good friend
from Pennsylvania as an original cosponsor of the ``Medicare Adult Day
Services Alternative Act.''
Adult day health care is a vital component of good long-term care,
for patients and for their caregivers. I am hopeful that as a result of
this bill, adult day health care will play an increasingly larger role
in how we care for the elderly in this country.
To be clear, this bill would simply give beneficiaries of the
Medicare home health benefit the option of choosing to receive their
care partially in an adult day care setting. This bill would not expand
the list of who is eligible for home care, it simply changes the
location where services may be provided. The benefits of this
legislation, are that beneficiaries gain increased social interaction
with peers, while simultaneously giving caregivers a measure of
respite.
I am a strong supporter of adult day health care, because I've seen
the tremendous benefits of it in the VA health care system. The
federally funded VA health care system, because of the very substantial
World War II veteran population, has developed some of the most
innovative ways to care for older people especially in non-
institutional settings. As a result of this demand, VA has led the
Nation in developing adult day health care programs. The Adult Day
Health Care Program at VA was established in the late 1970s at five
facilities. At this time, there are 15 in-house VA Adult Day Health
Care programs. All other VA medical centers provide this program to
veterans through a contractual basis with community-based programs.
In 1999, I introduced legislation to further expand on VA adult day
by making adult day health care, and other non-institutional long-term
care services, part of the standard benefits package in the VA. I am
thrilled that my legislation was passed later that year and that all
veterans who enroll for VA care will have access to these services.
I look forward to working with members of the Senate Finance
Committee to advance the cause of long-term care. It is my view that
providing long-term care to all Americans is a priority. Let us delay
no longer.
______
By Mr. ALLARD:
S. 1620. A bill to authorize the Government National Mortgage
Association to guarantee conventional mortgage-backed securities, and
for other purposes; to the Committee on Banking, Housing, and Urban
Affairs.
Mr. ALLARD. Mr. President, today I am pleased to introduce the Home
Ownership Expansion Act of 2001. This legislation is designed to expand
home ownership by increasing the supply of affordable mortgages
available for home buyers. The legislation establishes a private-public
partnership between mortgage providers and insurers and the Government
National Mortgage Association, GNMA or Ginnie Mae.
GNMA is a part of the Department of Housing and Urban Development,
and its current business is limited to home loans that are insured only
by government agencies. GNMA provides a guarantee to investors who
purchase FHA and VA home loans that are bundled into securities. These
securities are backed by the full faith and credit of the U.S.
government.
The Home Ownership Expansion Act of 2001 would authorize a new
program that permits GNMA to guarantee securities that consist of
mortgages insured by private mortgage insurance. Private insurance
results in reduced risk to taxpayers which will in turn make more
capital available for home mortgages.
This new GNMA program would be targeted at first-time and middle
income home buyers. The program would be limited to mortgages up to
$275,000 and tailored to borrowers who have less than 20 percent down
payments to put into homes. GNMA would benefit from the ability to
compete for privately insured mortgage business. GNMA's income would
increase through the program and GNMA would be strengthened by its
ability to offer a greater variety of products to investors.
By permitting GNMA to enter the secondary market for privately
insured mortgages, the legislation would increase competition. Mortgage
lenders would have a new entity to which they could sell their
mortgages, and the number and variety of loan-approval systems at use
in the low down payment mortgage market would increase. The
beneficiaries of this increase in competition would be consumers who
wish to purchase a home.
Mr. President, the current rate of home ownership in the United
States is 67 percent of households. This rate has risen steadily in
recent decades and is great achievement for our nation. However, the
rate of home ownership among minority families, entry level workers,
and younger Americans remains much lower. This legislation is designed
to further increase the home ownership rate by increasing the
availability of affordable mortgages.
The Home Ownership Expansion Act of 2001 would strengthen the
Government National Mortgage Association. It would protect taxpayers by
increasing private sector risk sharing on GNMA products. It would
increase competition in the secondary mortgage market, helping to lower
costs to consumers. And by increasing the use of varying underwriting
systems it would help to qualify more first-time, middle income and
minority home buyers. I ask unanimous consent that the text of the bill
be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record as follows:
S. 1620
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 ``Home Ownership Expansion Act
of 2001''.
SEC. 2. GNMA GUARANTEE OF SECURITIES BACKED BY CONVENTIONAL
MORTGAGES.
(a) Findings.--Congress finds that--
(1) expanding home ownership is a national goal, and that
increasing the principal secondary market outlets for
conventional home mortgages will serve that goal by improving
the liquidity of investments in those mortgages; and
(2) risk-sharing between the public sector and the private
mortgage insurance industry will provide consumers with
greater access to mortgage credit opportunities.
(b) Authority to Guarantee Conventional Mortgage-Backed
Securities.--Section 306 of the National Housing Act (12
U.S.C. 1721) is amended by adding at the end the following:
``(h) GNMA Guarantee of Securities Backed by Conventional
Mortgages.--
``(1) In general.--The Association may guarantee the timely
payment of principal and interest on conventional mortgage-
backed securities that are backed by qualifying privately
insured mortgages that are
[[Page S11377]]
insured with primary mortgage insurance, extended mortgage
insurance, and supplemental mortgage insurance.
``(2) Premiums.--The issuer of securities guaranteed by the
Association under this subsection that are backed by
qualifying privately insured mortgages shall--
``(A) for primary mortgage insurance, collect from the
mortgagor, and remit to the qualified mortgage insurer, the
premium or premiums as may be established by the qualified
mortgage insurer in accordance with applicable Federal or
State law; and
``(B) for extended mortgage insurance and supplemental
mortgage insurance, pay and remit the premium or premiums to
the qualified mortgage insurer from the sums attributable to
the difference between the interest rates applicable to the
mortgages in the particular pool and the interest rate set
forth on the trust certificate or security guaranteed by the
Association based on and backed by such mortgages, and
without additional premium charge therefore to the mortgagor.
``(3) Disposition of property upon default.--Upon default
by a mortgagor of a mortgage guaranteed under this
subsection, the property covered by the mortgage shall be
disposed of by the issuer of the securities guaranteed under
this subsection or the qualified mortgage insurer in
accordance with the customary policies and procedures of that
issuer and insurer.
``(4) Authority.--As part of the authority provided to the
Association to issue guarantees under this subsection for
fiscal year 2002, the Association may, during fiscal year
2002, issue guarantees of the timely payment of principal and
interest on trust certificates or other securities based on
and backed by qualifying privately insured mortgages in an
aggregate amount equal to not more than $50,000,000,000.
``(5) Regulatory power of the secretary.--The Secretary
shall--
``(A) have authority to review and approve premiums and
other terms and conditions established for the primary
mortgage insurance covering the mortgages contained in the
trusts or pools guaranteed by the Association under this
subsection, and shall have the authority to approve
participation in the program based on safety and soundness;
``(B) prescribe such rules and regulations as shall be
necessary and proper to ensure that the purposes of the Home
Ownership Expansion Act of 2001 are accomplished.
``(i) Definitions.--As used in this section:
``(1) Conventional mortgage limit.--The term `conventional
mortgage limit' means the greater of the applicable maximum
original principal obligation of conventional mortgages
established by--
``(A) the Federal National Mortgage Association, pursuant
to section 302(b)(2); or
``(B) the Federal Home Loan Mortgage Corporation, pursuant
to section 305(a)(2) of the Federal Home Loan Mortgage
Corporation Act (12 U.S.C. 1454(a)(2)).
``(2) Coverage percentage.--The term `coverage percentage'
means the percentage of the total of the outstanding
principal balance on a mortgage, and accrued interest,
advances, and reasonable expenses related to property
preservation and foreclosure, that is subject to payment in
the event of a claim under a policy of primary mortgage
insurance on a qualifying privately insured mortgage.
``(3) Extended mortgage insurance.--The term `extended
mortgage insurance' means insurance that--
``(A) is issued by a qualified mortgage insurer;
``(B) guarantees and insures against losses on the
mortgage;
``(C) has the same coverage percentage and other
substantially similar terms and conditions as the primary
mortgage insurance for the mortgage;
``(D) becomes effective upon mandatory cancellation or
termination of the primary mortgage insurance, and remains in
effect until the mortgage is paid in full; and
``(E) is not subject to mandatory cancellation or
termination.
``(4) Mandatory cancellation or termination.--The term
`mandatory cancellation or termination' means cancellation or
termination of mortgage insurance, as provided in section 3
of the Homeowners Protection Act of 1998 (12 U.S.C. 4902) or
by a protected State law, as defined in section 9 of that
Act.
``(5) Primary mortgage insurance.--The term `primary
mortgage insurance' means insurance that--
``(A) is issued by a qualified mortgage insurer;
``(B) guarantees and insures against losses on the
mortgage, under standard terms and conditions generally
offered in the private mortgage guaranty insurance industry;
``(C) has a coverage percentage equal to--
``(i) not less than 12 percent, if the principal-to-value
ratio is greater than 80 percent and not greater than 85
percent;
``(ii) not less than 25 percent, if the principal-to-value
ratio is greater than 85 percent and not greater than 90
percent;
``(iii) not less than 30 percent, if the principal-to-value
ratio is greater than 90 percent and not greater than 95
percent; and
``(iv) not less than 35 percent, if the principal-to-value
ratio is greater than 95 percent; and
``(D) may be canceled or terminated by the mortgagor,
issuer, or qualified mortgage insurer only pursuant to
mandatory cancellation or termination.
``(6) Principal-to-value ratio.--The term `principal-to-
value ratio' means the ratio of the original outstanding
principal balance of a first mortgage to the value of the
property securing the mortgage, as established at the time of
origination by appraisal or other reliable indicia of
property, conducted or performed not earlier than 6 months
before the date of origination, and not later than that date
of origination.
``(7) Qualified mortgage insurer.--The term `qualified
mortgage insurer' means a provider of private mortgage
insurance, as defined in section 2 of the Homeowners
Protection Act of 1998 (12 U.S.C. 4901), that--
``(A) is authorized and licensed by a State or an
instrumentality of a State to transact private mortgage
insurance business in the State in which the provider is
transacting that business, excluding any entity that is
exempt from State licensing requirements;
``(B) is rated in 1 of the 2 highest rating categories by
not less than 1 nationally recognized statistical rating
organization; and
``(C) meets such additional qualifications as may be
determined by the Association.
``(8) Qualifying privately insured mortgage.--The term
`qualifying privately insured mortgage' means a first
mortgage--
``(A) that is not--
``(i) insured under title II of this Act, except as
specifically provided in this section;
``(ii) insured under title V of the Housing Act of 1949 (42
U.S.C. 1471 et seq.);
``(iii) insured or guaranteed under chapter 37 of title 38,
United States Code; or
``(iv) made or guaranteed under part B of title V of the
Public Health Service Act (42 U.S.C. 290bb et seq.);
``(B) that--
``(i) is secured by property comprising 1-to-4 family
dwelling units;
``(ii) has a term of not longer than 30 years;
``(iii) has a principal-to-value ratio of more than 80
percent; and
``(iv) has an original principal obligation that does not
exceed the conventional mortgage limit;
``(C) not more than 1 payment of which has been delinquent
by more than 30 days, and no payment of which has been
delinquent by more than 60 days, during the 12-month period
immediately preceding the time of guarantee; and
``(D) that is covered by primary mortgage insurance,
extended mortgage insurance, and supplemental mortgage
insurance.
``(9) Supplemental mortgage insurance.--The term
`supplemental mortgage insurance' means insurance that--
``(A) is issued by a qualified mortgage insurer;
``(B) guarantees and insures against losses on the mortgage
under such terms and conditions as are reasonably acceptable
to the Association;
``(C) becomes effective on the date on which the guaranty
becomes effective; and
``(D) terminates as if subject to automatic termination
under section 3(b) of the Homeowners Protection Act of 1998
(12 U.S.C. 4902(b)), subject to the conditions stated in that
section, or when the mortgage is paid in full, whichever
occurs first.
``(10) Trust or pool.--A trust or pool referred to in this
section means a trust or pool composed only of--
``(A) qualifying privately insured mortgages; or
``(B) mortgages insured under title II.''.
(c) Guaranty Fee.--Section 306(g)(3)(A) of the National
Housing Act (12 U.S.C. 1721(g)(3)(A)) is amended--
(1) by inserting ``(i)'' after ``(A)''; and
(2) by adding at the end the following:
``(ii) The Association shall assess and collect a fee in an
amount equal to not more than 8 basis points, as determined
by the Secretary, in order to generate revenues to the
Federal Government in excess of the cost to the Federal
Government, as defined in section 502 of the Federal Credit
Reform Act of 1990 (2 U.S.C. 661a), of the guaranty of the
timely payment of principal and interest on trust
certificates or other securities based on or backed by
qualifying privately insured mortgages under subsection
(h).''.
(d) Voluntary Program Participation; No Federal Contractor
Status.--Section 306(g) of the National Housing Act (12
U.S.C. 1721(g)) is amended by adding at the end the
following:
``(4) Nothing in this subsection shall be construed to
require any issuer to issue any trust certificate or security
that is based on and backed by a trust or pool composed of
qualifying privately insured mortgages.
``(5) Notwithstanding any other provision of law, a
qualified mortgage insurer that participates in the guarantee
program under subsection (h) shall not be considered, by
virtue of such participation, as entering into a contract
with any Federal department or agency, or participating in
any program or activity receiving Federal financial
assistance, or participating in any program or activity
conducted by any Federal department or agency. Nothing in
this paragraph is intended to deny or otherwise affect the
rights of the Association as the assignee, holder, or
beneficiary of a mortgage insurance contract.''.
(e) Reinsurer Ratings Requirements.--Section 306(g) of the
National Housing Act (12 U.S.C. 1721(g)), as amended by this
Act, is amended by adding at the end the following:
``(6) A qualified mortgage insurer may not reinsure any
portion of its obligations under subsection (h) with any
reinsurance that--
``(A) is not rated in 1 of the 2 highest rating categories
by not less than 1 nationally recognized statistical rating
organization; or
``(B) fails to meet such other requirements as the
Secretary may deem appropriate.''.
[[Page S11378]]
SEC. 3. CONFORMING AMENDMENTS.
(a) Guarantees.--Section 306(g)(1) of the National Housing
Act (12 U.S.C. 1721(g)(1)) is amended--
(1) by inserting ``or subsection (h)'' after the term
``this subsection'' each place it appears;
(2) by inserting ``(A)'' after ``(1)'';
(3) by striking ``The Association shall collect'' and
inserting the following:
``(B) The Association shall collect'';
(4) by striking ``In the event'' and inserting the
following:
``(C) In the event'';
(5) by striking ``In any case'' and inserting the
following:
``(D) In any case'';
(6) in subparagraph (D), as so designated by paragraph (4)
of this subsection--
(A) by striking ``(I)'' and inserting ``(i)'';
(B) by striking ``(II)'' and inserting ``(ii)''; and
(C) by striking ``(III)'' and inserting ``(iii)'';
(7) by striking ``The Association is hereby empowered,''
and all that follows through ``against which the guaranteed
securities are issued.'' and inserting the following:
``(E)(i) The Association may, in connection with any
guaranty under this subsection or subsection (h), whether
before or after any default by the issuer or any default by
the qualified mortgage insurer (in the case of securities
based on and backed by qualifying privately insured
mortgages)--
``(I) provide by contract with the issuer for the
extinguishment, upon default by the issuer, of any
redemption, equitable, legal, or other right, title, or
interest of the issuer in any mortgage or mortgages
constituting the trust or pool against which the guaranteed
securities are issued; or
``(II) provide by contract with the qualified mortgage
insurer for the extinguishment, upon default by the qualified
mortgage insurer, of any redemption, equitable, legal, or
other right, title, or interest of the qualified mortgage
insurer in such mortgage or mortgages, as well as any related
primary mortgage insurance, extended mortgage insurance, or
supplemental mortgage insurance coverage or any future
premiums and proceeds related thereto.
``(ii) With respect to any issue of guaranteed securities--
``(I) in the event of default by the issuer, and pursuant
otherwise to the terms of the contract, the mortgages that
constitute the trust or pool referred to in clause (i) shall
become the absolute property of the Association, subject only
to the unsatisfied rights of the holders of the securities
based on and backed by that trust or pool; and
``(II) in the event of default by the qualified mortgage
insurer, and pursuant otherwise to the terms of the contract,
any right of the qualified mortgage insurer with respect to
the mortgages that constitute such trust or pool and any
related primary mortgage insurance, extended mortgage
insurance, or supplemental mortgage insurance coverage and
any future premiums and proceeds related thereto shall become
the absolute property of the Association, subject only to the
unsatisfied rights of the holders of the securities based on
and backed by such trust or pool and to the unsatisfied
rights of any insured issuer with respect to any mortgage
insurance coverage.
``(F) No State, local, or Federal law (other than a Federal
statute enacted expressly in limitation of this subsection
after the date of enactment of the Home Ownership Expansion
Act of 2001), shall preclude or limit the exercise by the
Association of--
``(i) its power to contract with the issuer, or the
qualified mortgage insurer on the terms stated in
subparagraph (E);
``(ii) its rights to enforce any such contract with the
issuer or the qualified mortgage insurer; or
``(iii) its ownership rights, as provided in subparagraph
(E), with respect to the mortgages constituting the trust or
pool against which the guaranteed securities are issued, and
with respect to any related primary mortgage insurance,
extended mortgage insurance, or supplemental mortgage
insurance coverage and any future premiums and proceeds
related thereto.'';
(8) by striking ``The full faith'' and inserting the
following:
``(G) The full faith''; and
(9) by striking ``There shall be'' and inserting the
following:
``(H) There shall be''.
(b) Separate Accountability.--Section 307 of the National
Housing Act (12 U.S.C. 1722) is amended--
(1) by striking ``All'' and inserting ``(a) In General.--
All''; and
(2) by adding at the end the following:
``(b) Limitation.--Notwithstanding subsection (a), with
respect to qualifying privately insured mortgages (as defined
in section 306(i)), related earnings described in subsection
(a) of this section or other amounts as become available
after such allowances and as are attributable to the fees and
charges assessed or collected in connection with the guaranty
of trust certificates or securities based on or backed by
such qualifying privately insured mortgages shall inure to
the benefit of and may be retained by the Secretary in
support of programs under titles II and III of this Act.''.
SEC. 4. IMPLEMENTATION AND REPORT.
(a) In General.--The Government National Mortgage
Association shall provide for the initial implementation of
this Act and the amendments made by this Act by--
(1) giving notice to its participating issuers; and
(2) submitting a report to the Chairpersons and Ranking
Members of the Committee on Banking, Housing, and Urban
Affairs of the Senate, and the Committee on Financial
Services of the House of Representatives, that confirms that
the authority of the Secretary of Housing and Urban
Development under section 306(h)(5) of the National Housing
Act, as added by this Act, does not adversely impact the
safety and soundness of the Government National Mortgage
Association.
(b) Publication.--The notice required by subsection (a)
shall be published not later than 120 days after the date of
enactment of this Act.
(c) Report.--The report submitted in accordance with
subsection (a) shall include an economic analysis of the
adequacy of the guarantee fee provided for in section
306(g)(3)(A)(ii) of the National Housing Act, as added by
this Act.
______
By Mr. BINGAMAN (for himself, Mr. Jeffords, Mr. Leahy, and Mrs.
Murray):
S. 1625. A bill to require the Secretary of Health and Human Services
to approve up to 4 State waivers to allow a State to use its allotment
under the State children's health insurance program under title XXI of
the Social Security Act to increase the enrollment of children eligible
for medical assistance under the Medicaid Program under title XIX of
such Act; to the Committee on Finance.
Mr. BINGAMAN. Mr. President, the legislation I am introducing today
with Senators Jeffords, Leahy, and Murray entitled the ``Children's
Health Equity Act of 2001'' addresses an inequity that was created
during the establishment of the State Children's Health Insurance
Program, CHIP, that unfairly penalized certain States that had done the
right thing and had expanded Medicaid coverage to children prior to the
enactment of the bill.
While the Congress recognized this fact for some States and
``grandfathered'' in their expansions so those States could use the new
CHIP funding for the children of their respective states, the
legislation failed to do so for others, including New Mexico. This had
the effect of penalizing a certain group of states for having done the
right thing.
As a result, the ``Children's Health Equity Act of 2001'' addresses
this inequity by allowing four States, including New Mexico, Vermont,
Washington, and Rhode Island, to be allowed to also utilize their CHIP
allotments for coverage of children covered by Medicaid above their
1996 levels, putting them on a more level field with all other States
in the country.
Mr. President, as you know, in 1997 Congress and President Clinton
agreed to establish the State Children's Health Insurance Program,
CHIP, and provide $48 billion over 10 years as an incentive to States
to provide health care coverage to uninsured, low-income children up
200 percent of poverty or beyond.
During the negotiations of the Balanced Budget Act, BBA, of 1997,
Congress and the Administration properly recognized that certain states
were already undertaking Medicaid or separate state-run expansions of
coverage to children up to 185 percent of poverty or above and that
they would be allowed to use the new CHIP funding for those purposes.
The final bill specifically allowed the States of Florida, New York,
and Pennsylvania to convert their separate state-run programs into CHIP
expansions and States that had expanded coverage to children through
Medicaid after March 31, 1997, were also allowed to use CHIP funding
for their expansions.
Unfortunately, New Mexico and other States that had enacted similar
expansions prior to March 1997 were denied the use of CHIP funding for
their expansions. This created an inequity among the states where some
were allowed to have their prior programs ``grandfathered'' into CHIP
and others were denied. Again, our bill addresses this inequity.
New Mexico has a strong record of attempting to expand coverage to
children through the Medicaid program. In 1995, prior to the enactment
of CHIP, New Mexico expanded coverage to for all children through age
18 through the Medicaid program up to 185 percent of poverty. After
CHIP was passed, New Mexico further expanded its coverage up to 235
percent of poverty, above the level of the vast majority of states
across the country.
[[Page S11379]]
Due to the inequity caused by CHIP, New Mexico has been allocated
$182 million from CHIP between fiscal years 1998 and 2000, and yet, has
only been able to spend slightly over $5 million as of the end of last
fiscal year. In other words, New Mexico has been allowed to spend only
3 percent of its Federal CHIP allocations.
New Mexico is unable to spend its funding because it had enacted its
expansion of coverage to children up to 185 percent of poverty prior to
the enactment of CHIP and our State was not ``grandfathered'' into CHIP
as other comparable States were.
The consequences for the children of New Mexico are enormous.
According to the Census Bureau, New Mexico has an estimated 129,000
uninsured children. In other words, almost 22 percent of all the
children in New Mexico are uninsured, despite the fact the State has
expanded coverage up to 235 percent of poverty. This is the fourth
highest rate of uninsured children in the country.
This is a result of the fact that an estimated 103,000 of the 129,000
uninsured children in New Mexico are below 200 percent of poverty.
These children are, consequently, eligible for Medicaid but currently
unenrolled. With the exception of those few children between 185 and
200 percent of poverty who are eligible for CHIP funding, all of the
remaining uninsured children below 185 percent of poverty in New Mexico
are denied CHIP funding despite their need.
Exacerbating this inequity is the fact that many states are accessing
their CHIP allotments to cover kids at poverty levels far below New
Mexico's current or past eligibility levels. The children in those
states are certainly no more worthy of health insurance coverage than
the children of New Mexico.
As the most recent policy statement by the National Governors'
Association reads, ``The Governors believe that it is critical that
innovative States not be penalized for having expanded coverage to
children before the enactment of S-CHIP, which provides enhanced
funding to meet these goals. To this end, the Governors support
providing additional funding flexibility to states that had already
significantly expanded coverage to the majority of uninsured children
in their States.''
Consequently, the bill I am introducing today corrects this inequity.
The bill reflects a carefully-crated response to the unintended
consequences of CHIP and brings much needed assistance to children
currently uninsured in my State and other similarly situated States,
including Washington, Vermont, and Rhode Island.
Rather than simply changing the effective date included in the BBA
that helped a smaller subset of States, this initiative includes strong
maintenance of effort language as well as incentives for our State to
conduct outreach and enrollment efforts and program simplification to
find and enroll uninsured kids because we feel strongly that they
receive the health coverage for which they are eligible.
The bill does not take money from other States' CHIP allotments. It
simply allows our States to spend our States' specific CHIP allotments
from the Federal Government on our uninsured children, just as other
States across the country are doing.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1625
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 ``Children's Health Equity Act
of 2001''.
SEC. 2. APPROVAL OF UP TO 4 STATE WAIVERS TO ALLOW TITLE XXI
ALLOTMENTS TO BE USED FOR INCREASING THE
ENROLLMENT OF MEDICAID CHILDREN.
(a) Definitions.--In this section:
(1) Child.--With respect to a State, the term ``child'' has
the meaning given such term for purposes of the State
medicaid program under title XIX of the Social Security Act.
(2) Child health assistance.--The term ``child health
assistance'' has the meaning given that term in section
2110(a) of the Social Security Act (42 U.S.C. 1397jj(a)).
(3) Enhanced fmap.--The term ``enhanced FMAP'' has the
meaning given that term in section 2105(b) of such Act (42
U.S.C. 1397ee(b)).
(4) Federal medical assistance percentage.--The term
``Federal medical assistance percentage'' has the meaning
given that term in section 1905(b) of such Act (42 U.S.C.
1396d(b)).
(5) Poverty line.--The term ``poverty line'' has the
meaning given that term in section 2110(c)(5) of such Act (42
U.S.C. 1397jj(c)(5)).
(6) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(7) State child health plan.--The term ``State child health
plan'' has the meaning given that term under section
2110(c)(7) of such Act (42 U.S.C. 1397jj(c)(7)).
(b) Approval of Certain Waivers.--The Secretary shall
approve not more than 4 waiver applications under which the
Secretary shall pay to a State that the Secretary determines
satisfies the requirements described in subsection (c) the
payment authorized under subsection (d).
(c) Requirements.--The requirements described in this
subsection are the following:
(1) SCHIP income eligibility.--The State has a State child
health plan that (whether implemented under title XIX or XXI
of the Social Security Act)--
(A) has the highest income eligibility standard permitted
under title XXI of such Act as of January 1, 2001;
(B) subject to paragraph (2), does not limit the acceptance
of applications for children; and
(C) provides benefits to all children in the State who
apply for and meet eligibility standards on a statewide
basis.
(2) No waiting list imposed.--With respect to children
whose family income is at or below 200 percent of the poverty
line, the State does not impose any numerical limitation,
waiting list, or similar limitation on the eligibility of
such children for child health assistance under such State
plan.
(3) Additional requirements.--The State has implemented at
least 4 of the following policies and procedures (relating to
coverage of children under titles XIX and title XXI of the
Social Security Act):
(A) Uniform, simplified application form.--With respect to
children who are eligible for medical assistance under
section 1902(a)(10)(A) of that Act (42 U.S.C.
1396a(a)(10)(A)), the State uses the same uniform, simplified
application form (including, if applicable, permitting
application other than in person) for purposes of
establishing eligibility for benefits under titles XIX and
XXI of that Act.
(B) Elimination of asset test.--The State does not apply
any asset test for eligibility under section 1902(l) or title
XXI of the Social Security Act (42 U.S.C. 1396a(l), 1397aa et
seq.) with respect to children.
(C) Adoption of 12-month continuous enrollment.--The State
provides that eligibility shall not be regularly redetermined
more often than once every year under title XXI of such Act
or for children described in section 1902(a)(10)(A) of such
Act (42 U.S.C. 1396a(a)(10)(A)).
(D) Same verification and redetermination policies;
automatic reassessment of eligibility.--With respect to
children who are eligible for medical assistance under
section 1902(a)(10)(A) of such Act (42 U.S.C.
1396a(a)(10)(A)), the State provides for initial eligibility
determinations and redeterminations of eligibility using the
same verification policies (including with respect to face-
to-face interviews), forms, and frequency as the State uses
for such purposes under title XXI of that Act, and, as part
of such redeterminations, provides for the automatic
reassessment of the eligibility of such children for
assistance under titles XIX and XXI.
(E) Outstationing enrollment staff.--The State provides for
the receipt and initial processing of applications for
benefits under title XXI of such Act and for children under
title XIX of that Act at facilities defined as
disproportionate share hospitals under section 1923(a)(1)(A)
of such Act (42 U.S.C. 1396r-4(a)(1)(A)) and Federally-
qualified health centers described in section 1905(l)(2)(B)
of that Act (42 U.S.C. 1396d(l)(2)(B)) consistent with
section 1902(a)(55) of that Act (42 U.S.C. 1396a(a)(55)).
(d) Payment Authorized.--
(1) In general.--Notwithstanding any provision of title XIX
or XXI of the Social Security Act, or any other provision of
law, with respect to a State with a waiver approved under
this section that satisfies the requirements of subsection
(c) (and that otherwise has a State child health plan
approved under title XXI of the Social Security Act), the
Secretary shall pay to the State from its allotment under
section 2104 of the Social Security Act (42 U.S.C. 1397dd) an
amount for each fiscal year (beginning with fiscal year 2002)
determined under subparagraph (D) as follows:
(A) Base expenditure amount.--The Secretary shall determine
the total amount of expenditures for medical assistance under
title XIX of the Social Security Act in the State for
children described in paragraph (2) for fiscal year 1995.
(B) Current expenditure amount.--The Secretary shall
determine the total amount of expenditures for medical
assistance under title XIX of such Act in the State for
children described in paragraph (2) for the fiscal year
involved.
(C) Increased expenditures.--The Secretary shall determine
the number (if any) by which the total amount determined
under subparagraph (B) exceeds the total amount determined
under subparagraph (A).
[[Page S11380]]
(D) Bonus amount.--The amount determined under this
subparagraph for a fiscal year is equal to the product of the
following:
(i) The total amount determined under subparagraph (C).
(ii) The difference between the enhanced FMAP and the
Federal medical assistance percentage for that State for the
fiscal year involved.
(2) Children described.--For purposes of paragraph (1)(A),
the children described in this paragraph are--
(A) children who are eligible and enrolled for medical
assistance under title XIX of the Social Security Act; and
(B) children who--
(i) would be described in subparagraph (A) but for having
family income that exceeds the highest income eligibility
level applicable to such individuals under the State plan;
and
(ii) would be considered disabled under section
1614(a)(3)(C) of the Social Security Act (42 U.S.C.
1382c(a)(3)(C)) (determined without regard to the reference
to age in that section but for having earnings or deemed
income or resources, as determined under title XVI of such
Act for children) that exceed the requirements for receipt of
supplemental security income benefits.
(3) Order of title xxi payments.--With respect to a State
with a waiver approved under this section, payments to the
State under section 2105(a) of the Social Security Act (42
U.S.C. 1397ee(a)) for a fiscal year shall, notwithstanding
paragraph (2) of such section, be made in the following
order:
(A) First, for expenditures for items described in
paragraph (1)(A) of section 2105(a) of such Act.
(B) Second, for expenditures for items described in
paragraph (1)(B) of such section.
(C) Third, for the payment authorized under subsection
(d)(1) of this section.
(D) Fourth, for expenditures for items described in
paragraph (1)(C) of section 2105(a) of the Social Security
Act.
(E) Fifth, for expenditures for items described in
paragraph (1)(D) of such section.
______
By Mr. BINGAMAN (for himself, Mr. Cochran, Mr. Daschle, Mrs.
Lincoln, Ms. Collins, Mrs. Carnahan, Mr. Hutchinson, and Mr.
Corzine):
S. 1626. A bill to provide disadvantaged children with access to
dental services; to the Committee on Finance.
Mr. BINGAMAN. Mr. President, the legislation I am introducing today
with Senators Cochran, Daschle, Lincoln, Collins, Carnahan, Hutchinson
of Arkansas, and Corzine entitled the ``Children's Dental Health
Improvement Act of 2001'' is designed to improve the access and
delivery of dental health services to our Nation's children through
Medicaid, the State Children's Health Insurance Program, SCHIP, the
Indian Health Service, IHS, and our Nation's safety net of community
health centers.
The oral health problems facing children are highlighted in a
landmark report issued by the Surgeon General and the Department of
Health and Human Services, HHS, last year entitled Oral Health in
America: A Report of the Surgeon General in which he observed that our
Nation is facing what amounts to ``a `silent epidemic' of dental and
oral diseases.''
In fact, dental caries, which refers to both decayed teeth or filled
cavities, is the most common childhood disease. According to the
Surgeon General, ``Among 5- to 17-year olds, dental caries is more than
5 times as common as a reported history of asthma and 7 times as common
as hay fever.'' In short, dental care is, as the Surgeon General adds,
``the most prevalent unmet health need among American children.''
The severity of this problem is even greater among children is
poverty. Poor children aged 2 to 9 have twice the levels of untreated
decayed teeth as nonpoor children. Moreover, the Surgeon General has
found that poor Mexican American children have rates of untreated
decayed teeth that exceed 70 percent, a rate of true epidemic
proportions.
For these children, their personal suffering is real. Many of the
oral diseases and disorders can cause severe pain, undermine self-
esteem and self-image, discourage normal social interaction, cause
other health problems, compromise nutritional status, and lead to
chronic stress and depression as well as incur great financial cost.
Lack of treatment is estimated to result in a loss of 1.6 million
school days annually, according to the National Center for Health
Statistics.
The General Accounting Office, GAO, in its April 2000 report,
entitled ``Oral Health: Dental Disease is a Chronic Problem Among Low-
Income Populations,'' adds, ``Poor children suffer nearly 12 times more
restricted-activity days, such as missed school, than higher-income
children as a result of dental problems.''
Incredibly, this could all be prevented. As the Surgeon General's
report notes, prevention programs in oral health that have been
designed and evaluated for children using a variety of fluoride and
dental sealant strategies has the ``potential of virtually eliminating
dental caries in all children.''
Unfortunately, children do not get the dental services they need.
According to the Surgeon General,'' Although over 14 percent of
children under 18 have no form of private or public medical insurance,
more than twice that many, 23 million children, have no dental
insurance.'' The report adds, ``There are at least 2.6 children without
dental insurance for each child without medical insurance.''
One important provision in the bill would grant States flexibility to
provide dental coverage to low-income children through the State
Children's Health Insurance Program, just as States currently are able
to do through Medicaid.
Unfortunately, SCHIP law prohibits coverage of children for services
unless they are completely uninsured. As authors Ruth Almeida, Ian
Hill, and Genevieve Kenney of an Urban Institute report entitled Does
SCHIP Spell Better Dental Care for Children? An Early Look at New
Initiatives write, ``. . . many low-income children are covered by
employer-based or other private health insurance for their medical
care, but do not have a comprehensive dental benefit. Because these
children are privately insured, they are not eligible for SCHIP and
cannot avail themselves of dental coverage under SCHIP. Expanding SCHIP
to furnish dental services on a wraparound basis to privately covered
low-income children without dental coverage could help achieve broader
improvements in children's oral health.''
For low-income children with medical coverage but no dental insurance
through the private sector, their only option would be to completely
dump their private coverage for their children in order to access SCHIP
coverage.
Instead, the ``Children's Dental Health Improvement Act of 2001''
would create an option for states to provide low-income families with
the ability to receive wrap-around dental coverage through SCHIP
without having to completely drop their private insurance. This reduces
the crowd-out of private insurance, which was a priority of the
Congress during passage of SCHIP, and it provides low-income children
with dental services that other children in the same economic
circumstance are already receiving through SCHIP.
In implementing such a change, I want to make it clear that I am in
strong support of providing additional funding to SCHIP to ensure that
these services are provided without reducing current levels of SCHIP
funding. I am concerned about SCHIP funding in forthcoming years,
particularly in those years referred to as the ``CHIP dip'' when
funding levels drop from over $4 billion annually to around $3 billion.
I have other legislation entitled, S. 1016, the ``Start Healthy, Stay
Healthy Act of 2001,'' that addresses this very problem.
With those additional funds, I strongly believe that SCHIP, just as
Medicaid, should provide services to low-income children who are both
uninsured and underinsured. Children need a comprehensive set of child
health services, including dental services, to ensure their appropriate
health and development.
However, coverage for these services is often not enough. Even when
children do have dental coverage, the access to care is often sorely
lacking. Medicaid is the largest insurer of dental coverage to
children. Yet, despite the design of the Medicaid program to ensure
access to comprehensive services for children, including dental care,
the Inspector General of the Department of Health and Human Services
reported in 1996 that only 18 percent of children eligible for Medicaid
received even a single preventive dental service. The same report shows
that no State provides preventive services to more than 50 percent of
eligible children. The factors are complex but the primary one is due
to limited dentist participation in Medicaid.
[[Page S11381]]
According to GAO, in its September 2000 report entitled Oral Health:
Factors Contributing to Low Use of Dental Services by Low-Income
Populations, ``Of 39 states that provided information about dentists'
participation in Medicaid, 23 reported that fewer than half of the
states' dentists saw at least one Medicaid patient during 1999.'' Even
worse, a 1998 survey by the National Conference of State Legislatures
indicates that fewer than 20 percent of dentists participate in the
Medicaid program nationwide.
The GAO concludes poor participation rates by dentists is due in
large part to poor reimbursement rates in Medicaid. As the GAO points
out, ``Our analysis showed that Medicaid payment rates are often well
below dentists' normal fees. Only 13 states had Medicaid rates that
exceeded two-thirds of the average regional fees dentists charged. . .
.''
Clearly, Medicaid is chronically underfunded with respect to dental
care. The Surgeon General's report notes, ``On average, state Medicaid
agencies contribute only 2.3 percent of their child health expenditures
to dental care, whereas nationally, the percentage of all child health
expenditures dedicated to dental care is more than 10 times that rate,
almost 30 percent.''
The good news is that many States, including New Mexico, are taking
actions to improve the participation of dentists in the Medicaid
program by raising low payment rates and reducing administrative
requirements. These efforts were highlighted by the GAO in its
September 2000 report. To further encourage such efforts, the
``Children's Dental Health Improvement Act of 2001'' provides $50
million annually as financial incentives and planning grants to states
to undertake additional improvements in their Medicaid programs
delivery of dental health services to children.
In addition to Medicaid and SCHIP, the federal government administers
other health care programs providing dental services or providers for
low-income children and their families, including services administered
by community health centers and the Indian Health Service, IHS.
Unfortunately, both of these programs are underfunded and, as the GAO
found, ``report difficulty in meeting the dental needs of their target
populations.''
For example, the GAO found that ``HHS and health center officials
report that the demand for dental services significantly exceeds the,
urban and rural health, centers' capacity to deliver it. In 1998 . . .,
a little more than half of the nearly 700 health center grantees funded
under this program had active dental programs.'' This is also true for
public health departments across the country.
To assist the health centers and public health departments with this
need, the ``Children's Dental Health Improvement Act of 2001'' provides
$40 million to community health centers and public health departments
to expand dental health services through the hiring of additional
dental health professionals to serve low-income populations.
This is particularly a problem that needs to be addressed in areas
with severe dental health professional shortages, such as New Mexico.
For example, New Mexico ranked next to last in the Nation with just
32.1 dentists per 100,000 population in 1998, according to HHS. This
compares to the national average of 48.4 per 100,000. Moreover, the
number of dentists in New Mexico declined by 7 percent between 1991 and
1998 while the State's population grew 12 percent. The result was a 17
percent decline in dentists per capita during the period.
With regard to American Indian and Alaska Native populations, the
need is so great and the funding so little that a comprehensive
solution is requiring throughout the IHS system. With respect to the
unmet need, the GAO notes that ``American Indian and Alaska Native
children aged 2 to 4 years old have five times the rate of dental decay
that all children have.''
Unfortunately, the GAO adds, ``. . . about one-fourth of IHS' dentist
positions at 269 HIS and tribal facilities were vacant in April 2000.
Vacancies have been chronic at IHS facilities, in the past 5 years, at
least 67 facilities have had one or more dentist position vacant for at
least a year. According to IHS officials, the primary reason for these
vacancies is that IHS is unable to provide a competitive salary for new
dentists. . .''
The GAO continues, ``The IHS' dental personnel shortages translate
into a large unmet need for dental services among American Indians and
Alaska Natives. IHS reports that only 24 percent of the eligible
population had a dental visit in 1998. The personnel shortages have
also reduced the scope of services that facilities are able to provide.
According to IHS officials, available services have concentrated more
on acute and emergency care, while routine and restorative care have
dropped as a percentage of workload. Emergency services increased from
one-fifth of the workload in 1990 to more than one-third of the
workload in 1999.'
To help alleviate this workforce shortage, the ``Children's Dental
Health Improvement Act of 2001'' provides IHS with the authority to
offer multi-year retention bonuses to dental providers offering
services through the IHS and tribal programs.
The bill also provides for some technical amendments to ensure that
tribal organizations and community health centers are allowed to apply
for school-based dental sealant funding from the Centers for Disease
Control and Prevention, CDC.
And finally, to help address this ``silent epidemic,'' HHS
implemented what is referred to as the Oral Health Initiative, OHI, to
coordinate dental health services in both the Health Resources and
Services Administration, HRSA, and the Center for Medicaid and Medicare
Services, CMS, formerly known as the Health Care Financing
Administration. Despite the progress of the Initiative, it has no legal
authority unlike other programs that target specific health needs of
children, such as Emergency Medical Services for Children or the
Traumatic Brain Injury Program. Because it lacks formal status and
program control, the OHI is susceptible to future disruptions or
dispanding.
To ensure the continuation of the OHI, the ``Children's Health
Improvement Act of 2001'' provides statutory authority for the OHI and
authorized funding of $25 million to improve the oral health of low-
income populations served by both the public and private sector.
The bipartisan legislation I am introducing today would improve the
access and delivery of dental health services to our Nation's children
through Medicaid, the State Children's Health Insurance Program, SCHIP,
the Indian Health Service, IHS, and our Nation's safety net of
community health centers. These problems are well-documented and call
out for congressional action as soon as possible.
I would like to thank the American Dental Association, the American
Dental Education Association, the American Academy of Pediatric
Dentistry, the National Association of Community Health Centers, Inc.,
the National Association of Children's Hospitals, the American Dental
Hygienists' Association, and the Children's Dental Health Project for
their outstanding support and/or their technical advice on this
legislation. This bill is a result of their outstanding work.
In particular, I want to thank Dr. Burt Edelstein and Libby Mullin of
the Children's Dental Health Project for their vast knowledge and
technical assistance on this issue. I want to thank Judy Sherman of the
American Dental Association, Myla Moss of the American Dental Education
Association, Dr. Heber Simmons and Scott Litch of the American Academy
of Pediatric Dentistry, Karen Sealander of the American Dental
Hygienists' Association, and Heather Mizeur of the National Association
of Community Health Centers, Inc., for their valuable insight,
technical advice, and support for this legislation. I look forward to
working with them all to ensure that we achieve increased access to
oral health care for our children.
In addition to those organizations, I would like to thank the
following groups for their support of the bill, including: Academy of
General Dentistry, American Academy of Child and Adolescent Psychiatry,
American Academy of Oral and Maxillofacial Pathology, American Academy
of Periodontology, American Association of Dental Examiners, American
Association of Dental Research, American
[[Page S11382]]
Association of Endodontists, American Association of Public Health
Dentistry, American Association of Oral and Maxillofacial Surgeons,
American Association of Orthodontists, American Association of Women
Dentists, American College of Dentists, American College of Preventive
Medicine, American Dental Trade Association, American Public Health
Association, American Society of Dentistry for Children, American
Student Dental Association, Association of Clinicians of the
Underserved, Association of Maternal and Child Health Programs,
Association of State and Territorial Dental Directors, Dental Dealers
of America, Dental Manufacturers of America, Inc., Family Voices,
Hispanic Dental Association, International College of Dentists, USA,
March of Dimes, National Association of City and County Health
Officers, National Association of Local Boards of Health, National
Dental Association, National Health Law Program, New Mexico Department
of Health, Partnership for Prevention, Society of American Indian
Dentists, Special Care Dentistry, and United Cerebral Palsy
Associations.
I request unanimous consent that a Fact Sheet and the text of the
bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1626
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 ``Children's
Dental Health Improvement Act of 2001''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--IMPROVING DELIVERY OF PEDIATRIC DENTAL SERVICES UNDER MEDICAID
AND SCHIP
Sec. 101. Grants to improve the provision of dental services under
medicaid and SCHIP.
Sec. 102. Authority to provide dental coverage under SCHIP as a
supplement to other health coverage.
TITLE II--IMPROVING DELIVERY OF PEDIATRIC DENTAL SERVICES UNDER
COMMUNITY HEALTH CENTERS, PUBLIC HEALTH DEPARTMENTS, AND THE INDIAN
HEALTH SERVICE
Sec. 201. Grants to improve the provision of dental health services
through community health centers and public health
departments.
Sec. 202. Dental officer multiyear retention bonus for the Indian
Health Service.
Sec. 203. Streamline process for designating dental health professional
shortage areas.
Sec. 204. Demonstration projects to increase access to pediatric dental
services in underserved areas.
TITLE III--IMPROVING ORAL HEALTH PROMOTION AND DISEASE PREVENTION
PROGRAMS
Sec. 301. Oral health initiative.
Sec. 302. CDC reports.
Sec. 303. Early childhood caries.
Sec. 304. School-based dental sealant program.
TITLE I--IMPROVING DELIVERY OF PEDIATRIC DENTAL SERVICES UNDER MEDICAID
AND SCHIP
SEC. 101. GRANTS TO IMPROVE THE PROVISION OF DENTAL SERVICES
UNDER MEDICAID AND SCHIP.
Title V of the Social Security Act (42 U.S.C. 701 et seq.)
is amended by adding at the end the following:
``SEC. 511. GRANTS TO IMPROVE THE PROVISION OF DENTAL
SERVICES UNDER MEDICAID AND SCHIP.
``(a) Authority to Make Grants.--In addition to any other
payments made under this title to a State, the Secretary
shall award grants to States that satisfy the requirements of
subsection (b) to improve the provision of dental services to
children who are enrolled in a State plan under title XIX or
a State child health plan under title XXI (in this section,
collectively referred to as the `State plans').
``(b) Requirements.--In order to be eligible for a grant
under this section, a State shall provide the Secretary with
the following assurances:
``(1) Improved service delivery.--The State shall have a
plan to improve the delivery of dental services to children
who are enrolled in the State plans, including providing
outreach and administrative case management, improving
collection and reporting of claims data, and providing
incentives, in addition to raising reimbursement rates, to
increase provider participation.
``(2) Adequate payment rates.--The State has provided for
payment under the State plans for dental services for
children at levels consistent with the market-based rates and
sufficient enough to enlist providers to treat children in
need of dental services.
``(3) Ensured access.--The State shall ensure it will make
dental services available to children enrolled in the State
plans to the same extent as such services are available to
the general population of the State.
``(c) Application.--A State shall submit an application to
the Secretary for a grant under this section in such form and
manner and containing such information as the Secretary may
require.
``(d) Authorization of Appropriations.--There are
authorized to be appropriated to make grants under this
section $50,000,000 for fiscal year 2002 and each fiscal year
thereafter.
``(e) Application of Other Provisions of Title.--
``(1) In general.--Except as provided in paragraph (2), the
other provisions of this title shall not apply to a grant
made under this section.
``(2) Exceptions.--The following provisions of this title
shall apply to a grant made under subsection (a) to the same
extent and in the same manner as such provisions apply to
allotments made under section 502(c):
``(A) Section 504(b)(6) (relating to prohibition on
payments to excluded individuals and entities).
``(B) Section 504(c) (relating to the use of funds for the
purchase of technical assistance).
``(C) Section 504(d) (relating to a limitation on
administrative expenditures).
``(D) Section 506 (relating to reports and audits), but
only to the extent determined by the Secretary to be
appropriate for grants made under this section.
``(E) Section 507 (relating to penalties for false
statements).
``(F) Section 508 (relating to nondiscrimination).
``(G) Section 509 (relating to the administration of the
grant program).''.
SEC. 102. AUTHORITY TO PROVIDE DENTAL COVERAGE UNDER SCHIP AS
A SUPPLEMENT TO OTHER HEALTH COVERAGE.
(a) Authority To Provide Coverage.--
(1) SCHIP.--
(A) In general.--Section 2105(a)(1)(C) of the Social
Security Act (42 U.S.C. 1397ee(a)(1)(C)) is amended--
(i) by inserting ``(i)'' after ``(C)''; and
(ii) by adding at the end the following:
``(ii) notwithstanding clause (i), in the case of a State
that satisfies the conditions described in subsection (c)(8),
for child health assistance that consists only of coverage of
dental services for a child who would be considered a
targeted low-income child if that portion of subparagraph (C)
of section 2110(b)(1) relating to coverage of the child under
a group health plan or under health insurance coverage did
not apply, and such child has such coverage that does not
include dental services; and''.
(B) Conditions described.--Section 2105(c) of the Social
Security Act (42 U.S.C. 1397ee(c)) is amended by adding at
the end the following:
``(8) Conditions for provision of dental services only
coverage.--For purposes of subsection (a)(1)(C)(ii), the
conditions described in this paragraph are the following:
``(A) Income eligibility.--The State child health plan
(whether implemented under title XIX or this XXI)--
``(i) has the highest income eligibility standard permitted
under this title as of January 1, 2001;
``(ii) subject to subparagraph (B), does not limit the
acceptance of applications for children; and
``(iii) provides benefits to all children in the State who
apply for and meet eligibility standards.
``(B) No waiting list imposed.--With respect to children
whose family income is at or below 200 percent of the poverty
line, the State does not impose any numerical limitation,
waiting list, or similar limitation on the eligibility of
such children for child health assistance under such State
plan.''.
(C) State option to waive waiting period.--Section
2102(b)(1)(B) of the Social Security Act (42 U.S.C.
1397bb(b)(1)(B)) is amended--
(i) in clause (i), by striking ``and'' at the end;
(ii) in clause (ii), by striking the period and inserting
``; and''; and
(iii) by adding at the end the following new clause:
``(iii) at State option, may not apply a waiting period in
the case of child described in section 2105(a)(1)(C)(ii), if
the State satisfies the requirements of section 2105(c)(8)
and provides such child with child health assistance that
consists only of coverage of dental services.''.
(2) Application of enhanced match under medicaid.--Section
1905 of the Social Security Act (42 U.S.C. 1396d) is
amended--
(A) in subsection (b), in the fourth sentence, by striking
``or subsection (u)(3)'' and inserting ``(u)(3), or (u)(4)'';
and
(B) in subsection (u)--
(i) by redesignating paragraph (4) as paragraph (5); and
(ii) by inserting after paragraph (3) the following new
paragraph:
``(4) For purposes of subsection (b), the expenditures
described in this paragraph are expenditures for dental
services for children described in section 2105(a)(1)(C)(ii),
but only in the case of a State that satisfies the
requirements of section 2105(c)(8).''.
(b) Effective Date.--The amendments made by subsection (a)
take effect on October 1, 2001 and apply to child health
assistance and medical assistance provided on or after that
date.
[[Page S11383]]
TITLE II--IMPROVING DELIVERY OF PEDIATRIC DENTAL SERVICES UNDER
COMMUNITY HEALTH CENTERS, PUBLIC HEALTH DEPARTMENTS, AND THE INDIAN
HEALTH SERVICE
SEC. 201. GRANTS TO IMPROVE THE PROVISION OF DENTAL HEALTH
SERVICES THROUGH COMMUNITY HEALTH CENTERS AND
PUBLIC HEALTH DEPARTMENTS.
Part D of title III of the Public Health Service Act (42
U.S.C. 254b et seq.) is amended by insert before section 330,
the following:
``SEC. 329. GRANT PROGRAM TO EXPAND THE AVAILABILITY OF
SERVICES.
``(a) In General.--The Secretary, acting through the Health
Resources and Services Administration, shall establish a
program under which the Secretary may award grants to
eligible entities and eligible individuals to expand the
availability of primary dental care services in dental health
professional shortage areas or medically underserved areas.
``(b) Eligibility.--
``(1) Entities.--To be eligible to receive a grant under
this section an entity--
``(A) shall be--
``(i) a health center receiving funds under section 330 or
designated as a Federally qualified health center;
``(ii) a county or local public health department, if
located in a federally-designated dental health professional
shortage area;
``(iii) an Indian tribe or tribal organization (as defined
in section 4 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b)); or
``(iv) a dental education program accredited by the
Commission on Dental Accreditation; and
``(B) shall prepare and submit to the Secretary an
application at such time, in such manner, and containing such
information as the Secretary may require.
``(2) Individuals.--To be eligible to receive a grant under
this section an individual shall--
``(A) be a dental health professional licensed or certified
in accordance with the laws of State in which such individual
provides dental services;
``(B) prepare and submit to the Secretary an application at
such time, in such manner, and containing such information as
the Secretary may require; and
``(C) provide assurances that--
``(i) the individual will practice in a federally-
designated dental health professional shortage area; and
``(ii) not less than 33 percent of the patients of such
individual are--
``(I) receiving assistance under a State plan under title
XIX of the Social Security Act (42 U.S.C. 1396 et seq.);
``(II) receiving assistance under a State plan under title
XXI of the Social Security Act (42 U.S.C. 1397aa et seq.); or
``(III) uninsured.
``(c) Use of Funds.--
``(1) Entities.--An entity shall use amounts received under
a grant under this section to provide for the increased
availability of primary dental services in the areas
described in subsection (a). Such amounts may be used to
supplement the salaries offered for individuals accepting
employment as dentists in such areas.
``(2) Individuals.--A grant to an individual under
subsection (a) shall be in the form of a $1,000 bonus payment
for each month in which such individual is in compliance with
the eligibility requirements of subsection (b)(2)(C).
``(d) Authorization of Appropriations.--
``(1) In general.--Notwithstanding any other amounts
appropriated under section 330 for health centers, there is
authorized to be appropriated $40,000,000 for each of fiscal
years 2002 through 2006 to hire and retain dental health care
providers under this section.
``(2) Use of funds.--Of the amount appropriated for a
fiscal year under paragraph (1), the Secretary shall use--
``(A) not less than 75 percent of such amount to make
grants to eligible entities; and
``(B) not more than 25 percent of such amount to make
grants to eligible individuals.''.
SEC. 202. DENTAL OFFICER MULTIYEAR RETENTION BONUS FOR THE
INDIAN HEALTH SERVICE.
(a) Terms and Definitions.--In this section:
(1) Creditable service.--The term ``creditable service''
includes all periods that a dental officer spent in graduate
dental educational (GDE) training programs while not on
active duty in the Indian Health Service and all periods of
active duty in the Indian Health Service as a dental officer.
(2) Dental officer.--The term ``dental officer'' means an
officer of the Indian Health Service designated as a dental
officer.
(3) Director.--The term ``Director'' means the Director of
the Indian Health Service.
(4) Residency.--The term ``residency'' means a graduate
dental educational (GDE) training program of at least 12
months leading to a specialty, including general practice
residency (GPR) or an advanced education general dentistry
(AEGD).
(5) Specialty.--The term ``specialty'' means a dental
specialty for which there is an Indian Health Service
specialty code number.
(b) Requirements for Bonus.--
(1) In general.--An eligible dental officer of the Indian
Health Service who executes a written agreement to remain on
active duty for 2, 3, or 4 years after the completion of any
other active duty service commitment to the Indian Health
Service may, upon acceptance of the written agreement by the
Director, be authorized to receive a dental officer multiyear
retention bonus under this section. The Director may, based
on requirements of the Indian Health Service, decline to
offer such a retention bonus to any specialty that is
otherwise eligible, or to restrict the length of such a
retention bonus contract for a specialty to less than 4
years.
(2) Limitations.--Each annual dental officer multiyear
retention bonus authorized under this section shall not
exceed the following:
(A) $14,000 for a 4-year written agreement.
(B) $8,000 for a 3-year written agreement.
(C) $4,000 for a 2-year written agreement.
(c) Eligibility.--
(1) In general.--In order to be eligible to receive a
dental officer multiyear retention bonus under this section,
a dental officer shall--
(A) be at or below such grade as the Director shall
determine;
(B) have completed any active duty service commitment of
the Indian Health Service incurred for dental education and
training or have 8 years of creditable service;
(C) have completed initial residency training, or be
scheduled to complete initial residency training before
September 30 of the fiscal year in which the officer enters
into a dental officer multiyear retention bonus written
service agreement under this section; and
(D) have a dental specialty in pediatric dentistry or oral
and maxillofacial surgery.
(2) Extension to other officers.--The Director may extend
the retention bonus to dental officers other than officers
with a dental specialty in pediatric dentistry, as well as to
other dental hygienists with a minimum of a baccalaureate
degree, based on demonstrated need.
(d) Termination of Entitlement to Special Pay.--The
Director may terminate, with cause, at any time a dental
officer's multiyear retention bonus contract under this
section. If such a contract is terminated, the unserved
portion of the retention bonus contract shall be recouped on
a pro rata basis. The Director shall establish regulations
that specify the conditions and procedures under which
termination may take place. The regulations and conditions
for termination shall be included in the written service
contract for a dental officer multiyear retention bonus under
this section.
(e) Refunds.--
(1) In general.--Prorated refunds shall be required for
sums paid under a retention bonus contract under this section
if a dental officer who has received the retention bonus
fails to complete the total period of service specified in
the contract, as conditions and circumstances warrant.
(2) Debt to united states.--An obligation to reimburse the
United States imposed under paragraph (1) is a debt owed to
the United States.
(3) No discharge in bankruptcy.--Notwithstanding any other
provision of law, a discharge in bankruptcy under title 11,
United States Code, that is entered less than 5 years after
the termination of a retention bonus contract under this
section does not discharge the dental officer who signed such
a contract from a debt arising under the contract or under
paragraph (1).
SEC. 203. STREAMLINE PROCESS FOR DESIGNATING DENTAL HEALTH
PROFESSIONAL SHORTAGE AREAS.
Section 332(a) of the Public Health Service Act (42 U.S.C.
254e(a)) is amended by adding at the end the following:
``(4) In designating health professional shortage areas
under this section, the Secretary may designate certain areas
as dental health professional shortage areas if the Secretary
determines that such areas have a severe shortage of dental
health professionals. The Secretary shall, in consultation
with State and local dental societies and tribal health
organizations, streamline the process to develop, publish and
periodically update criteria to be used in designating dental
health professional shortage areas.''.
SEC. 204. DEMONSTRATION PROJECTS TO INCREASE ACCESS TO
PEDIATRIC DENTAL SERVICES IN UNDERSERVED AREAS.
(a) Authority To Conduct Projects.--The Secretary of Health
and Human Services, through the Administrator of the Health
Resources and Services Administration and the Director of the
Indian Health Service, shall establish demonstration projects
that are designed to increase access to dental services for
children in underserved areas, as determined by the
Secretary.
(b) Authorization of Appropriations.--There is authorized
to be appropriated such sums as may be necessary to carry out
this section.
TITLE III--IMPROVING ORAL HEALTH PROMOTION AND DISEASE PREVENTION
PROGRAMS
SEC. 301. ORAL HEALTH INITIATIVE.
(a) Establishment.--The Secretary of Health and Human
Services shall establish an oral health initiative to reduce
the profound disparities in oral health by improving the
health status of vulnerable populations, particularly low-
income children, to the level of health status that is
enjoyed by the majority of Americans.
(b) Activities.--The Secretary of Health and Human Services
shall, through the oral health initiative--
[[Page S11384]]
(1) carry out activities to improve intra- and inter-agency
collaborations, including activities to identify, engage, and
encourage existing Federal and State programs to maximize
their potential to address oral health;
(2) carry out activities to encourage public-private
partnerships to engage private sector communities of interest
(including health professionals, educators, State
policymakers, foundations, business, and the public) in
partnerships that promote oral health and dental care; and
(3) carry out activities to reduce the disease burden in
high risk populations through the application of best-science
in oral health, including programs such as community water
fluoridation and dental sealants.
(c) Coordination.--The Secretary of Health and Human
Services shall--
(1) through the Administrator of the Centers for Medicare &
Medicaid Services (formerly known as the Health Care
Financing Administration) establish a Chief Dental Officer
for the medicaid and State children's health insurance
programs established under titles XIX and XXI, respectively,
of the Social Security Act (42 U.S.C. 1396 et seq. 1397aa et
seq.); and
(2) carry out this section in collaboration with such
Administrator and Chief Dental Officer and the Administrator
and Chief Dental Officer of the Health Resources and Services
Administration.
(d) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section, $25,000,000 for
fiscal year 2002, and such sums as may be necessary for each
subsequent fiscal year.
SEC. 302. CDC REPORTS.
(a) Collection of Data.--The Director of the Centers for
Disease Control and Prevention in collaboration with other
organizations and agencies shall annually collect data
describing the dental, craniofacial, and oral health of
residents of at least 1 State and 1 Indian tribe from each
region of the Department of Health and Human Services.
(b) Reports.--The Director of the Centers for Disease
Control and Prevention shall compile and analyze data
collected under subsection (a) and annually prepare and
submit to the appropriate committees of Congress a report
concerning the oral health of certain States and tribes.
SEC. 303. EARLY CHILDHOOD CARIES.
(a) In General.--The Secretary of Health and Human
Services, acting through the Director of the Centers for
Disease Control and Prevention, shall--
(1) expand existing surveillance activities to include the
identification of children at high risk of early childhood
caries;
(2) assist State, local, and tribal health agencies and
departments in collecting, analyzing and disseminating data
on early childhood caries; and
(3) provide for the development of public health nursing
programs and public health education programs on early
childhood caries prevention.
(b) Appropriateness of Activities.--The Secretary of Health
and Human Services shall carry out programs and activities
under subsection (a) in a culturally appropriate manner with
respect to populations at risk of early childhood caries.
(c) Authorization of Appropriations.--There is authorized
to be appropriated to carry out this section, such sums as
may be necessary for each fiscal year.
SEC. 304. SCHOOL-BASED DENTAL SEALANT PROGRAM.
Section 317M(c) of the Public Health Service Act (as added
by section 1602 of Public Law 106-310)) is amended--
(1) in paragraph (1), by inserting ``and school-linked''
after ``school-based'';
(2) in the first sentence of paragraph (2)--
(A) by inserting ``and school-linked'' after ``school-
based''; and
(B) by inserting ``or Indian tribe'' after ``State''; and
(3) by striking paragraph (3) and inserting the following:
``(3) Eligibility.--To be eligible to receive funds under
paragraph (1), an entity shall--
``(A) prepare and submit to the State or Indian tribe an
application at such time, in such manner and containing such
information as the State or Indian tribe may require; and
``(B) be a--
``(i) public elementary or secondary school--
``(I) that is located in an urban area in which and more
than 50 percent of the student population is participating in
Federal or State free or reduced meal programs; or
``(II) that is located in a rural area and, with respect to
the school district in which the school is located, the
district involved has a median income that is at or below 235
percent of the poverty line, as defined in section 673(2) of
the Community Services Block Grant Act (42 U.S.C. 9902(2));
or
``(ii) public or non-profit health organization, including
a grantee under section 330, that is under contract with an
elementary or secondary school described in subparagraph (B)
to provide dental services to school-age children.''.
____
Fact Sheet--Children's Dental Health Improvement Act of 2001
Senators Jeff Bingaman (D-NM), Thad Cochran (R-MS), Blanche
Lincoln (D-AR), Tom Daschle (D-SD), Susan Collins (R-ME),
Jean Carnahan (D-MO), Tim Hutchinson (R-AR), and Jon Corzine
(D-NJ) are preparing to introduce the ``Children's Dental
Health Improvement Act of 2001.'' The legislation seeks to
improve the access and delivery of dental care to children
across the country.
problems and solutions
Lack of Coverage for Children
According to the Surgeon General's report, Oral Health in
America: A Report of the Surgeon General, that was issued in
2000, ``Although over 14 percent of children under 18 have no
form of private or public medical insurance, more than twice
that many, 23 million children, have no dental insurance.''
The report adds, ``There are at least 2.6 children without
dental insurance for each child without medical insurance.''
Moreover, according to the General Accounting Office in a
report entitled Factors Contributing to Low Use of Dental
Services by Low-Income Populations (Sept. 2000), AHHS and
health center officials report that the demand for dental
services significantly exceeds the [urban and rural health]
centers' capacity to delivery it. In 1998 . . ., a little
more than half of the nearly 700 health center grantees
funded under this program had active dental programs.''
Legislative Proposal: The legislation would improve the
dental health of uninsured children by: Allowing states the
flexibility to utilize the State Children's Health Insurance
Program (SCHIP) to provide dental coverage to low-income
children below 200 percent of poverty that may have private
insurance for medical care but not dental services; and
providing $40 million to community health centers and public
health departments to expand dental health services through
the hiring of additional dentist health professionals to
serve low-income children.
Lack of Access to Care
According to the GAO, ``While several factors influence the
access low-income groups have to dental care, the primary one
is limited dentist participation in Medicaid . . . Of 39
states that provided information about dentists'
participation in Medicaid, 23 reported that fewer than half
of the states' dentists saw at least one Medicaid patient
during 1999.''
The GAO concludes this is due in large part to poor
reimbursement rates in Medicaid. As the GAO adds, ``Our
analysis showed that Medicaid payment rates are often well
below dentists' normal fees. Only 13 states had Medicaid
rates that exceeded two-thirds of the average regional fees
dentists charged. . ..''
Legislative Proposal: The legislation seeks to improve
access to dental services for low-income children in the
Medicaid program by providing $50 million as financial
incentives and planning grants to states to improve their
Medicaid programs in terms of adequate payment rates,
access to care, and improved service delivery.
Lack of Providers in Federally Funded Programs
With respect to community health centers, the GAO notes,
``HHS and health center officials report that the demand for
dental services significantly exceeds the [urban and rural
health] centers' capacity to delivery it. In 1998 . . ., a
little more than half of the nearly 700 health center
grantees funded under this program had active dental
programs.''
With respect to the Indian Health Service (IHS) the GAO
adds, ``. . . about one-fourth of IHS'' dentist positions at
269 IHS and tribal facilities were vacant in April 2000.
Vacancies have been chronic at IHS facilities--in the past 5
years, at least 67 facilities have had one or more dentist
positions vacant for at least a year. According to IHS
officials, the primary reason for these vacancies is that IHS
is unable to provide a competitive salary for new dentists.''
Legislative Proposal: The legislation seeks to improve
access to dental services for children served by community
health centers and the Indian Health Service by: Again,
providing $40 million to community health centers and public
health departments to expand dental health services through
the hiring of additional dental health professionals to serve
low-income children; and providing the Indian Health Service
with the authority to offer multi-year retention bonuses to
dental providers offering service through the IHS and tribal
programs.
Need for Improved Coordination and Collaboration
Despite Medicaid and SCHIP, dental care is the least
utilized core pediatric health service for low-income
children. There are 2.6 times more children lacking dental
coverage than health coverage and over a hundred million
Americans without dental insurance. Dental care is the most
frequently cited unmet health need of children, according to
their parents. In fact, the Health Interview Survey reveals
that the unmet need is three times greater than unmet need
for medical care, four times greater than unmet need for
prescription drugs, and five times greater than unmet need
for vision care. The third National Health and Nutrition
Interview Survey showed that dental caries [or dental decay]
is the most prevalent chronic disease of childhood.
To help address this ``hidden epidemic,'' the Department of
Health and Human Services (HHS) enacted the Oral Health
Initiative (OHI) to coordinate dental health services in both
the Health Resources and Services Administration (HRSA) and
the Center for Medicare and Medicaid Services (CMS) (formerly
known as the Health Care Financing Administration).
Despite the progress of the initiative, it has no legal
authority unlike other programs
[[Page S11385]]
that target specific health needs of children (e.g.,
Emergency Medical Services for Children and the Traumatic
Brain Injury Program). Because it lacks formal status and
program control, the OHI is susceptible to future disruptions
or disbanding.
Legislative Proposal: The legislation provides statutory
authority for the OHI and authorized funding of $25 million
to improve the oral health of low-income populations served
by both the public and private sector.
Other Provisions
In addition, the legislation contains the following
technical provisions:
Dental Health Professional Shortage Area Designation: The
bill streamlines the process for the designation of dental
health professional shortage areas.
Technical School-Based Sealant Provisions: The bill
includes technical provisions ensuring that entities eligible
for funding include both ``school-linked'' as well as school-
based organizations, clarifies that an eligible entitle can
be a public or non-profit health organization or tribal
organization.
Demonstration: The bill creates authority for HHS to
establish demonstration projects to increase access to dental
services for children in underserved areas.
endorsing organizations
American Dental Association, American Dental Education
Association, American Academy of Pediatric Dentistry,
National Association of Community Health Centers, Inc.,
National Association of Children's Hospitals, American Dental
Hygienists' Association, Academy of General Dentistry,
American Academy of Child and Adolescent Psychiatry, American
Academy of Oral and Maxillofacial Pathology, American Academy
of Periodontology, American Association of Dental Examiners,
American Association of Dental Research, American Association
of Endodontists, American Association of Public Health
Dentistry, American Association of Oral and Maxillofacial
Surgeons, American Association of Orthodontists, American
Association of Women Dentists, American College of Dentists,
American College of Preventive Medicine, American Dental
Trade Association, American Public Health Association,
American Society of Dentistry for Children, American Student
Dental Association, Association of Clinicians of the
Underserved, Association of Maternal and Child Health
Programs, Association of State and Territorial Dental
Directors, Dental Dealers of America, Dental Manufacturers of
America, Inc., Family Voices, Hispanic Dental Association,
International College of Dentists USA, March of Dimes,
National Association of City and County Health Officers,
National Association of Local Boards of Health, National
Dental Association, National Health Law Program, New Mexico
Department of Health, Partnership for Prevention, Society of
American Indian Dentists, Special Care Dentistry, and United
Cerebral Palsy Associations.
Mrs. CARNAHAN. Mr. President, I would like to bring your attention to
a hidden epidemic. This epidemic affects the overall health of
children, especially children in low-income families. It has been
called a ``hidden epidemic'' because it can be difficult to detect at a
glance, and because it receives relatively little attention as a threat
to children's health. But while this epidemic is ``hidden,'' it
manifests itself every day in the smiles of America's children.
The epidemic I am referring to is that of poor dental health. Dental
decay, a major cause of tooth loss, is the most prevalent chronic
disease of childhood. Each year, dental conditions cause children in
the U.S. to miss more than 750,000 days of school. One in ten children
between the ages of five and eleven has never visited a dentist. This
is a shocking and distressing statistic. The unfortunate trend cannot
be allowed to continue.
States are working hard to offer dental health services through their
Medicaid programs and the State Children's Health Insurance Program,
but they need our help in meeting the challenge. The General Accounting
Office reported that the biggest reason low-income people lack dental
care is that not enough dentists participate in Medicaid. In Missouri,
as in other states, some dentists simply choose not to accept Medicaid
patients, while others cannot afford to accept them because Medicaid
reimbursement is not sufficient to cover the costs of providing care.
In Missouri, there are more than 1,000 children on Medicaid for every
dentist willing to serve them.
As a result, Medicaid patients must search far and wide to find a
dentist and then face another challenge in traveling long distances to
see that dentist. Often, this requires hours of planning to arrange for
public or Medicaid-provided transportation, and several more hours of
waiting after the visit to be picked up and returned home. For many
lower-income parents, these hours away from work will severely cut into
the family's income. Is it any wonder why so many children do not get
the preventive dental care they need, and are not seen by a dentist
until they are in intense pain or have infections so severe that their
eyes have swelled shut? We cannot let this continue to happen to
children in the United States.
There are many reasons for protecting children's oral health. For
instance, we know that when children have healthy smiles:
They chew more easily and gain more nutrients from the foods they
eat.
They learn to speak more quickly and clearly.
They look and feel more attractive improving self-confidence and
willingness to communicate with others.
They have better school attendance and pay more attention in class.
They avoid extensive and costly treatment of dental disease.
And they begin a lifetime of good dental habits.
For all of these reasons, I am proud to join with Senators Bingaman,
Cochran, Corzine, Collins, Daschle, Hutchison, and Lincoln in
introducing the Children's Dental Health Improvement Act. This
bipartisan bill would improve dental care for low-income children. I
appreciate Senator Bingaman's leadership on this bill, and I am honored
for the opportunity to work with him on this important issue. In order
to make real improvements in our current situation, this legislation
takes a multi-faceted approach that addresses each component of the
problem.
First, this bill would give States the option to provide dental
coverage through the State Children's Health Insurance Program to low-
income children who may have private insurance for medical care but not
for dental services. Part of the reason for the epidemic in dental
health is a lack of insurance for dental services. For every child
without health insurance, there are nearly three children who are
uninsured for dental care. By providing more of these children with
insurance, we can reduce their dental care costs--one of the many
barriers that low-income families face in getting dental care for their
children. Although the bill does not call for additional SCHIP funding,
I support a separate funding increase for this program. This increase
is essential to giving States the ability to expand coverage to dental
services, especially States like Missouri, whose SCHIP programs are
doing an excellent job and as a result spend all of their existing
funding.
Second, this bill would invest $25 million in and provide statutory
authority to the Federal Oral Health Initiative. The Department of
Health and Human Services initiated the Oral Health Initiative to
coordinate its dental health services. These funds would be used to
promote public-private partnerships and cooperation among Federal
agencies in order to reduce the profound disparities in oral health
among vulnerable populations. Low-income people are the hardest hit
when it comes to dental disease. Compared to their counterparts in
higher-income families, poor children have five times more untreated
dental disease and poor teens are half as likely to visit a dentist
annually. Giving legal authority to this Initiative will allow it to
work on improving access to dental health without fear of future
disruptions or disbanding and the increased funding will allow for the
Oral Health Initiative's much-needed expansion.
Third, this bill would offer States the opportunity to apply for $50
million in Federal grants to assist them in improving dental coverage
for children through Medicaid. The financial incentives and planning
grants included in the bill would enable states to improve payment
rates, access to care, and service delivery. It also includes an
investment of $40 million for community health centers and public
health departments to increase the number of dental health
professionals who serve low-income children. With these funds, we can
increase access to dental care for low-income children, shorten travel
times and the wait for a dental appointment. This is especially
important in rural areas, which generally face a greater shortage of
providers.
The Children's Dental Health Improvement Act has gained the support
of over twenty dental health organizations, including the American
Academy of Pediatric Dentistry and the
[[Page S11386]]
American Dental Association. Other supporters include the American
Academy of Pediatrics, the National Association of Children's
Hospitals, and the National Association of Community Health Centers.
With their support, and the leadership of my fellow cosponsors of this
bill, I hope that we can have a profound impact on dental health and
ensure that America's low-income children will have healthy, beautiful
smiles.
______
By Mrs. FEINSTEIN (for herself, Mr. Kyl, Ms. Snowe, Mr. Hatch,
Mr. Thurmond, Mr. Bond, and Mr. Kohl):
S. 1627. A bill to enhance the security of the international borders
of the United States; to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, I rise to join with the distinguished
Senator from Arizona, who is my ranking member on the Technology and
Terrorism Subcommittee of Judiciary, to introduce a piece of
legislation.
On October 12, the committee held a hearing on what could be done to
technologically improve our visa entry system. It has become very
clear, now that we know all 19 of the terrorists essentially had, at
some time, valid visas, that our system is such that it really cannot
countermand or alert our Government to any possible terrorist entering
this country legally through our visa system.
We have about 7 million nonimmigrants entering the U.S. a year. About
4 million of them disappear and are unaccounted for. We have 23 million
people coming in on visa waivers from 29 different countries. We have
an unregulated student visa program. And we also have about 300 million
people coming across borders back and forth. We have about 5 million
containers a year that come in through the ports of entry, fewer than 2
percent of them searched.
The ranking member, the distinguished Senator from Arizona, and I
have been very concerned about this. As a product of the hearing, we
believed that the most important thing we could do was create a
centralized data base, using cutting-edge technology, and also enabling
that data base to interface between our intelligence agencies, our law
enforcement agencies, and our State Department, to create a kind of
lookout data base so that the situation that happened--whereby in Saudi
Arabia 15 terrorists came in to the State Department consul's office
and got visas, and we were told there was no intelligence to alert the
system--would not, in fact, happen in the future. This legislation
would create that kind of centralized, integrated data base.
Additionally, we provide for a biometric visa smart card. We provide
that all Federal identity permit and license documents be fraud-
resistant and tamper-resistant. We provide for passenger manifests of
all commercial transportation vehicles to go into that data base,
again, so that it can alert the proper authorities about who is about
to come into the U.S. Law enforcement information, intelligence
information all combine to send certain signals.
We also provide regulation and school responsibility for the student
visa program. I am very pleased to indicate that Senator Kyl and I are
joined by Senators Kohl, Snowe, Hatch, Thurmond, and Bond.
I would like to now defer to my colleague from Arizona, the ranking
member of our Technology and Terrorism Subcommittee.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, I thank Senator Feinstein, the chairman of
the Technology and Terrorism Subcommittee of the Judiciary Committee,
for her leadership both in the holding of the hearing that she
mentioned, as well as putting together the legislation we introduce
this evening.
Something happened on September 11 that, with one exception, really
had not happened since the War of 1812 when British soldiers came into
the United States and literally attacked Americans on our own soil.
Except for the first attack on the World Trade Center, that did not
happen again until September 11, when over 6,000 people were killed by
foreigners who were here and attacked Americans in our country.
At that point, we began to realize that we had to begin to close the
loopholes in our immigration system that, frankly, were allowing just
about anybody and everybody to come into this country and, as we have
learned, to do some very bad things to Americans here in our own
country.
So this legislation would do a variety of things, as Senator
Feinstein has said, beginning with the creation of a data base that
would enable us to know what the FBI knows, what the CIA knows, what
the INS knows, what the State Department knows.
Today, these different computers do not talk to each other, so that
when a consular officer is asked to grant a visa to someone, he may
have no information indicating this person should be denied the visa,
yet it is quite possible that person is not someone we would want to
have come into the United States.
In our hearing, the representative from the State Department said the
State Department personnel who granted visas to these 19 terrorists
were heartbroken.
She said it is like when a person hits the little kid who runs out
from between the parked cars. It obviously is not the driver's fault,
but you feel horrible about it. It is obviously not the fault of the
people in the State Department who granted these visas, but they felt
horrible about it because they didn't have the information to tell them
that those visas should have been denied.
This bill will enable us to put all of that information into one
simple database so that our consular offices will know to whom to grant
the visas and who should not receive them. It will make a lot of other
changes, as Senator Feinstein said, all of which are designed to gain
better for the process of admitting people into the country, for
knowing when they exit the country, for ensuring that people who come
here to study in fact come here and study and don't come on a pretext,
as at least one of these terrorists did, and a variety of other things
that take advantage of the technology we have today.
The great thing about this bill, as verified by the hearing and some
other very hard work Senator Feinstein has done on her own, is to
determine that the technology is here. We can apply technology to this
problem. The other piece of good news is that it doesn't cost that
much, relatively speaking. In fact, we are going to have to employ
technology to save money. We can't possibly hire enough people or take
all of the time it would take to do this if we don't employ technology.
We are very excited about the prospect of applying technology to a
new challenge here in America to close the loopholes in our immigration
law, to ensure or at least be a lot more sure that we are not letting
terrorists come into this country or stay in this country when they
shouldn't be here. I am proud to join my colleague Senator Feinstein in
the introduction of this legislation. I hope we can find a way very
early on to see that it gets considered in the proper fora so that the
full Senate will have an opportunity to support the legislation and
support the President, who has called for exactly this kind of
approach.
Mr. President, today, Senators Feinstein and I, joined by Senators
Snowe, Hatch, Thurmond, Bond, and Kohl, introduce the Visa Entry Reform
Act, legislation that will strengthen our U.S. visa system, and allow
better tracking and monitoring of foreign nationals in the United
States who present national security risks to our country.
Last week the President signed into law anti-terrorism legislation
that will provide many of the tools necessary to keep terrorists out of
the United States, and to detain those terrorists who have entered our
country. That law provides new, better definitions of what a terrorist
organization is, and provides the Attorney General greater authority to
detain members of such organizations. It clarifies that individuals who
have contributed to such organizations, even if such support went to
nonterrorist activities of the organizations, are inadmissible and
deportable. The new law also authorizes the tripling of Border Patrol,
Customs inspectors, and INS inspectors at the northern border, a
minimal addition, given the expected high rates of attrition for these
agencies over the next
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five years, and the continued and growing need for personnel along the
southwest border.
Yesterday, the President announced three initiatives in our fight to
track down terrorists: a task force, headed by the deputy assistant
director of the FBI for intelligence, to work toward greater
coordination of intelligence and law enforcement information on
terrorists; a comprehensive study of our never-implemented foreign
student tracking system; and an initiative to provide much-needed
coordination among Customs and INS officials in the United States,
Canada, and Mexico.
These are all important tools, and will be instrumental in our
overall efforts to track down terrorists. The legislation that we
introduce today will complement our recent efforts. Under the Visa
Entry Reform Act of 2001, law enforcement, the Departments of
Transportation and State, and all of our intelligence agencies will be
connected by a comprehensive database, headed by the Director of
Homeland Defense, with necessary shared law enforcement and
intelligence information to thwart attempts to enter the country and to
find terrorists who have made their way into the United States.
Under our bill, terrorists will be deprived of the ability to present
fake or altered international documents in order to gain entrance, or
stay here. Foreign nationals will be provided with a new fraud-proof
``SmartVisa'' card, using new technology that would include a person's
fingerprints or other forms of ``biometric'' identification. These
cards would be used by visitors upon exit and entry into the United
States, and would alert authorities immediately if a visa has expired
or a red flag is raised by a Federal agency. Our bill would also
strengthen other Federal identification documents such as pilots'
licenses, visas, immigration work authorization cards, and others by
requiring that they be fraud- and tamper-resistant, contain biometric
data, and, if applicable, include the visa's expiration date.
Another provision of the bill would require that the 29 nations that
participate in the government's visa waiver program be required, after
1 year, to issue tamper-resistant, machine-readable passports. In
addition, our bill would require that, after 2 years, all countries
that participate include biometric data on their passports. INS
inspectors would have to check passport numbers and, where available,
biometric information with the new, centralized information database.
Countries that participate in the program would be required to report
stolen passport numbers to the State Department in order to continue to
participate in the program.
Another section of our bill will make a significant difference in our
efforts to stop terrorists from ever entering our country. Section six
of the bill will require that passenger manifests on all flights
scheduled to come to the United States be forwarded in real-time, and
then cleared, by the Immigration and Naturalization Service. All cruise
and cargo lines and cross-border bus lines would also have to submit
such lists to the INS. Our bill also removes a current U.S. requirement
that all passengers on flights to the United States be cleared by the
INS within 45 minutes of arrival. Clearly, in some circumstances, the
INS will need more time to clear all prospective entrants to the United
States. These simple steps would give law enforcement advance notice of
foreigners coming into the country, particularly visitors or immigrants
who pose security threats to the United States.
The Visa Entry Reform Act will also provide much needed reforms and
requirements in our U.S. foreign student visa program, which has
allowed numerous foreigners to enter the country without ever attending
classes and with lax oversight by the Federal Government. The system is
rife with abuse, with numerous examples of fraud and bribery by persons
seeking student visas.
Just as alarming, in the past decade, more than 16,000 people have
entered the United States on student visas from states included on the
government's list of terrorist sponsors. Notwithstanding that Syria is
one of the countries on the list, the State Department recently issued
visas to 14 Syrian nationals so that they could attend flight schools
in Fort Worth, TX.
Our legislation would prevent most persons from obtaining student
visas if they come from terrorist-supporting states such as Iran, Iraq,
Sudan, Libya, and Syria, with the authority of the Secretary of State
to waive the bar. Additionally, our bill would require the INS to
conduct background checks before the State Department issues the visas.
U.S. educational institutions would also be required to immediately
notify the INS when a foreign student violates the term of the visa by
failing to show up for class or leaving school early.
For the first time since the War of 1812, the United States has faced
a massive attack from foreigners on our own soil. Every one of the
terrorists who committed the September 11 atrocities were foreign
nationals who had entered the United States legally through our visa
system. None of them should have been allowed entry due to their ties
to terrorist organizations, and yet even those whose visas had expired
were not expelled.
Mohamed Atta, for example, the suspected ringleader of the attacks,
was allowed into the United States on a tourist visa, even though he
made clear his intentions to go to flight school while in the United
States. Clearly, at the very least, he should have been queried about
why he was using his tourist visa to attend flight school.
We also know that two of the terrorists were on watch lists that
should have been provided to the State Department and the INS, in order
to prevent their entry to the United States.
Another hijacker, Hani Hanjour, was here on a student visa that had
expired as of September 11. Hani Hanjour never attended class. In
addition, at least two other visitor visa-holders overstayed their
visa. In testimony before my own Senate subcommittee, U.S. officials
have told us that they possess little information about foreigners who
come into this country, how many there are, and even whether they leave
when required by their visas. America is a nation that welcomes
international visitors--and should remain so. But terrorists have taken
advantage of our system and its openness. Now that we face new threats
to our homeland, it is time we restore some balance to our immigration
policy.
As former chairman and now ranking Republican of the Judiciary
Committee's Terrorism Subcommittee, I have long suggested, and strongly
supported, many of the anti-terrorism and immigration initiatives now
being advocated by Republicans and Democrats alike. In my sadness about
the overwhelming and tragic events that took thousands of precious
lives, I am resolved to push forward on all fronts to fight against
terrorism. That means delivering justice to those who are responsible
for the lives lost on September 11, and reorganizing the institutions
of government so that the law-abiding can continue to live their lives
in freedom. I hope that we will soon pass, the Congress will pass, the
Visa Entry Reform Act. It will make a difference.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I thank my distinguished colleague
from Arizona for those comments. He is very hard working, and it has
been a great pleasure for me to be able to work with him. He and I hope
to sit down with Senators Kennedy and Brownback next week. I think all
four of us believe that if it is possible to have one bill, we would
like to have one bill. We have taken on the technology aspect of our
bill. But bottom line, the Senator from Arizona is correct, our Nation
has essentially been laid back when it comes to matters of really
scrupulously trying to set up a system that can provide a measure of
protection for our national security.
It has become very clear now, post September 11, that we must take
steps to do so. Otherwise, we are derelict in our duty to protect
American citizens. This bill does it.
Because the student visa part of it has been somewhat controversial,
this morning I was visited by the chancellor of the California State
University system. This is the largest system in the United States,
with about 380,000 students. He came in to indicate his support for our
bill, for the acknowledgment that he knows that schools across America
also have to assume more responsibility to see that there is a system
where there is some regulation.
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Right now, a student can apply to a number of schools, get accepted to
a number, and show up at none. And there is no reporting.
We would change this. The university association will be supportive
of these changes.
I am very optimistic that we have an opportunity, in meeting with
Senators Kennedy and Brownback, to put together one bill that could
provide some reform to a porous visa entry system.
As I said, I sit as the chair of the Judiciary Committee's
Subcommittee on Technology, Terrorism and Government Information. Last
month, we held a hearing into the need for new technologies to assist
our government agencies in keeping terrorists out of the United States.
The testimony at that hearing was very illuminating. We were given a
picture of an immigration system in chaos, and a border control system
that acts like a sieve. Agencies don't communicate with each other.
Computers are incompatible. And even in instances where technological
leaps have been made--like the issuance of more than 4.5 million
``smart'' border crossing cards with biometric data--the technology is
not even used.
Let me give some specific examples of the testimony we heard before
our subcommittee:
There are 29 countries that now participate in a ``visa waiver''
program that invites 23 million visitors a year to our country.
Travelers from these countries do not have to get a visa before
entering the United States, so nobody knows when they arrive, and
nobody knows whether they leave. Passports don't have to be machine-
readable or tamper-proof, and the result is millions of people coming
and going with no accountability, and no way to find them if they
choose to stay and do mischief.
We also heard in our subcommittee that the student visa program is
unregulated and subject to abuse and fraud. Schools don't keep track of
students, the INS does not find out when the students leave or whether
they even show up for classes, and many students overstay their visas
by years. Furthermore, students who apply to many schools can receive
multiple documents--called ``I-20'' forms--giving them the right to
entry. Because they only need one of these forms, the possibility for
fraud is enormous. Additional forms are sold, and many enter the
country with no real plans to go to school here at all.
In our hearing, Mary Ryan, the Assistant Secretary of State for
Consular Affairs, said that the lack of information sharing is a
``colossal intelligence failure'' and that the State Department ``had
no information on the terrorists from law enforcement.'' Personally, I
am amazed that a person can apply for a visa, be granted a visa, and
that there is no mechanism by which the FBI or CIA can enter a code
into the system to raise a red flag on individuals known to have links
to terrorist groups and pose a national threat. In the wake of
September 11th, it is hard for me to fathom how a terrorist might be
permitted to enter the U.S. because our government agencies aren't
sharing information.
This was one, sobering hearing. It made it clear to all who were
present that our borders act only as a sieve, essentially allowing easy
access to all who would do us harm. Something must be done, and
something must be done now.
When I arrived in the Senate in 1992, I brought with me the concerns
of millions of Californians about the porous nature of the Southwest
border. When I tried to address the problems there, I met with the same
response over and over again--``nothing can be done.''
But something was done, and our Southwest border is now far more
difficult to transit.
Here, too, I am now told that ``nothing can be done'' to keep
terrorists from entering the country on student visas, or through the
visa waiver program, or through some other program. I am told that
commerce and trade are too important. Or that the technology simply
does not exist. Or that the agencies involved are incapable of
cooperating in a way that would keep our country safe from those who
try to enter.
Well, I did not accept those arguments then, and I do not accept them
now. There are things we can do to solve some of these problems, and
this issue is too important to wait.
Let me talk about how this legislation would address these problems.
First, the most important piece of this solution is the creation of
one, central database containing all the information our government has
about foreign nationals who cross the border into the United States.
Private industry can help in this effort--in fact, I recently met with
Larry Ellison, Chairman of Oracle, who wrote me a letter offering the
services of his company, free of charge, in the creation of the
necessary software.
Right now, our government agencies use different systems, with
different information, in different formats. And they often refuse to
share that information with other agencies within our own government.
This is not acceptable.
When a terrorist presents himself at a consular office asking for a
visa, or at a border crossing with a passport, we need to make sure
that his name and identifying information is checked against an
accurate, up-to-date, and comprehensive database. Period.
My legislation will require the creation of this central database,
and will require the cooperation of all U.S. government agencies in
providing accurate and compatible information to that system.
Incidentally, this legislation also contains strict privacy
provisions, limiting access to this database to authorized federal
officials. And the bill contains severe penalties for wrongful access
or misuse of information contained in the database.
Second, the legislation I will introduce will include concrete steps
to restore the integrity to the immigration and visa process, including
the following:
First, the legislation requires all foreign nationals to be
fingerprinted, and, when appropriate, submit other biometric data, to
the State Department when applying for a visa. This provision should
help eliminate fraud, as well as identify potential threats to the
country before they gain access.
Second, we include reforms of the visa waiver program, so that any
country wishing to participate in that program must quickly provide its
citizens with tamper-proof, machine-readable passports, eventually with
biometric data to help verify identity at ports of entry.
Third, we establish a robust ``SmartVisa'' program. Newly issued
visas must contain biometric data and other identifying information--
like more than 4 million already do on the Southwest border--and, just
as importantly, our own officials at the border and other ports of
entry must have the equipment necessary to read those new smart cards.
Next, we worked closely with the university community in crafting
new, strict requirements for the student visa program, to crack down on
fraud, make sure that students really are attending classes, and give
the government the ability to track any foreign national who arrives on
a student visa but fails to enroll in school.
The legislation prohibits the issuance of a student visa to any
citizen of a country identified by the State Department as a terrorist-
supporting nation. There is a waiver provision to this prohibition,
however, allowing the State Department to allow students even from
these countries after review and evaluation.
We require that airlines, cruiselines, buslines, and other
transportation services provide passenger and crew manifests to law
enforcement before arrival, so that any potential terrorists or other
wrongdoers can be singled out before they arrive in this country and
disappear into the general populace.
The bill contains a number of other related provisions as well, but
the gist of this legislation is this:
Where we can provide law enforcement more information about
potentially dangerous foreign nationals, we do so;
Where we can reform our border-crossing system to weed out or deter
terrorists or others who would do us harm, we do so;
And where we can update technology to meet the demands of the modern
war against terror, we do that as well.
As we prepare to modify our immigration system, we must be sure to
enact changes that are realistic and
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feasible. We must also provide the necessary tools to implement them.
Our Nation will be no more secure tomorrow if we create new top of
the line databases and no not see to it that government agencies share
critical information.
We will be no safer tomorrow if we do not create a workable entry-
exit tracking system to ensure that terrorists do not enter the U.S.
and blend into our communities without detection.
And we will be no safer if we simply authorize new programs and
information sharing, but do not provide the resources necessary to put
the new technology at the border, train agents appropriately, and
require our various government agencies to cooperate in this effort.
We have a lot to do and I am confident that we will move swiftly and
with great care to address these important issues. The legislation I
introduce today is an important, and strong, first step. But this is
only the beginning of a long, difficult process.
I urge my colleagues to support us on this legislation. I yield the
floor.
Ms. SNOWE. Mr. President, I'm pleased to join with Senators Feinstein
and Kyl in introducing the Visa Entry Reform Act of 2001.
Both of these leaders have worked feverishly to bring this bipartisan
bill to fruition and I have very much appreciated the opportunity to
work with them in assembling a strong and meaningful package to help
secure our homeland.
The bottom line is, at this extraordinary time, in the wake of
horrific attacks from without against innocent lives within our
borders, we must take every conceivable step with regard to those
variables we can control in securing our Nation. How can we do anything
less when it has become so abundantly and tragically apparent that
admittance into this country cannot and must not be the ``X-Factor'' in
protecting our homeland?
Entry into this country is a privilege, not a right, and it's a
privilege that's clearly been violated by evildoers who were well aware
of inherent weaknesses in the system. Just look at the story of Mohamed
Atta, coming into Miami, he told the INS that he was returning to the
U.S. to continue flight training, despite the fact that he presented
them with a tourist visa, not the student required visa for his
purposes, and they let him in. INS has since said that Atta had filed
months earlier to change his status from tourist to student so they let
him in, despite long-standing policy that once you leave the country,
you're considered to have abandoned your change of status request.
What this bill is about is stopping dangerous aliens from entering
our country at their point-of-origin and their point of entry by giving
those Federal agencies charged with that responsibility the tools
necessary to do the job. Now, some say the tools we need are better
technologies, some say better information, some say better
coordination. The beauty of this bill is that it stands on all three
legs, because I can tell you if there's one thing I learned from my
experience in working on these issues on the House Foreign Affairs
International Operations Subcommittee it's that we're only going to get
to the root of the problem with a comprehensive approach.
This was clear from the aftermath of our investigation of the comings
and goings of the mastermind of the 1993 World Trade Center bombing,
the radical Egyptian cleric Sheikh Rahman. We found that the Sheikh had
entered and exited the country five times totally unimpeded, even after
the State Department formally revoked his visa and even after the INS
granted him permanent resident status. In fact, in March of 1992, the
INS rescinded that status which was granted in Newark, New Jersey about
a year before.
But then, unbelievably, the Sheikh requested asylum in a hearing
before an immigration judge in the very same city, got a second
hearing, and continued to remain in the country even after the bombing,
with the Justice Department rejecting holding Rahman in custody pending
the outcome of deportation proceedings and the asylum application,
stating that ``in the absence of concrete evidence that Rahman is
participating in or involved in planning acts of terrorism, the
assumption of that burden, upon the U.S. Government, is considered
unwarranted.''
To address the trail of errors, I introduced legislation to modernize
the State Department's antiquated microfiche lookout system, but as
we've painfully learned in the interim, such a system is only as good
as the information they can access. That's why we fought tooth and nail
to require information sharing between the FBI and the State
Department, but even then it was only a watered-down provision that
eventually passed into law in 1994, with even that sunsetting in 1997
with a brief extension lapsing in 1998.
So I'm pleased that the terrorism bill we just passed does require
information sharing between the State Department and the FBI, but we
can and must do more, we must also require information sharing among
all agencies like the CIA, DEA, INS, and Customs.
And that's what this bill does, along with my measure that's included
to establish ``Terrorist Lookout Committees'' at every embassy, which
are required to meet on a monthly basis and report on their knowledge
or lack of knowledge of anyone who should be excluded from the U.S.
Ultimately, each Deputy Chief of Mission would be responsible for this
information, because to paraphrase Admiral Rickover, unless you can
identify the person who's responsible when something goes wrong, then
you have never had anyone really responsible.
We should also know who and what is in our waters and be pro-active
in preventing potential threats from reaching our shores. As I
mentioned at a recent Oceans and Fisheries Subcommittee hearing, a
terrorist act involving chemical, biological, radiological, or nuclear
weapons at one of our seaports could result in the extensive loss of
lives. In that light, I'm pleased this bill also includes a measure I
developed that requires incoming vessels to submit to the Coast Guard
crew and passenger manifests as background on the vessel 96 hours
before arrival.
And finally, we ought to ensure that the person standing in front of
the INS agent at the border is the same person who applied for that
visa. It does no good to do every background check in the world
overseas, only to have someone else actually show up at our doorstep.
The fact is, we have the so-called ``biometric technology'' available
to close this gap, and I'm pleased that my measure requiring
fingerprinting for visa applicants both abroad and at the border has
been included.
As the President said just the other day, ``We're going to start
asking a lot of questions that heretofore have not been asked.'' By
giving the Director of Homeland Security the responsibility of
developing a centralized ``lookout'' database for all of this
information, along with instituting tighter application and screening
procedures and increased oversight for student visas, we will close the
loopholes and help bring all our Nation's resources to bear in securing
our nation.
This is a crucial bill in our war on terrorism and I urge my
colleagues to support this bill.
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