[Congressional Record Volume 148, Number 47 (Wednesday, April 24, 2002)]
[Senate]
[Pages S3304-S3319]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. WELLSTONE:
S. 2236. A bill to amend title III of the Public Health Service Act
to provide coverage for domestic violence screening and treatment, to
authorize the Secretary of Health and Human Services to make grants to
improve the response of health care systems to domestic violence, and
train health care providers and federally qualified health centers
regarding screening, identification, and treatment for families
experiencing domestic violence; to the Committee on Health, Education,
Labor, and Pensions.
Mr. WELLSTONE. Madam President, I rise today to introduce the
Domestic Violence Screening and Services Act of 2002, an act to improve
the response of health care systems to domestic violence, and to train
health care providers and federally qualified health centers regarding
screening, identification, and treatment for families experiencing
domestic violence.
Nearly one third of American women, 31 percent, report being
physically or sexually abused by a husband or boyfriend at some point
in their lives, and about 1200 women are murdered every year by their
intimate partner, nearly 3 each day. 37 percent of all women who sought
care in hospital emergency rooms for violence related injuries were
injured by a current or former spouse, boyfriend, or girlfriend. In
addition to injuries sustained during violent episodes, physical and
psychological abuse are linked to numerous adverse health effects
including arthritis, chronic neck or back pain, migraine and other
frequent headaches, problems with vision, and sexually transmitted
infections, including HIV/AIDS.
Each year, at least 6 percent of all pregnant women, about 240,000
pregnant women in this country, are battered by the men in their lives.
This battering leads to complications in pregnancy, including low
weight gain, anemia, infections, and first and second trimester
bleeding. Pregnant women are more likely to die of homicide than to die
of any other cause.
Currently, about 10 percent of primary care physicians routinely
screen for intimate partner abuse during new patient visits and 9
percent routinely screen during periodic checkups. Recent clinical
studies have shown the effectiveness of a 2-minute screening for early
detection of abuse of pregnant women. Additional longitudinal studies
have tested a 10-minute intervention that was highly effective in
increasing the safety of pregnant abused women. 70 to 81 percent of
patients studied reported that they would like their health care
providers to ask them privately about intimate partner violence.
Medical services for abused women cost an estimated $857,300,000
every year. It is time for us to also authorize resources to promote
the effort to make screening for domestic violence routine in health
care settings. This bill would establish domestic violence prevention
grants in the amount of $5 million dollars per year to improve
screening and treatment for domestic violence in federally qualified
health centers. Grants could be used for the implementation,
dissemination, and evaluation of policies and procedures to guide
health care professionals and staff to respond to domestic violence.
Grants could also be used to provide training and follow-up technical
assistance to health professionals and staff to screen for domestic
violence, and then to appropriately assess, treat, and refer patients
who are victims of domestic violence to domestic violence service
providers. In addition, grants could be used for the development of
onsite access to services to address, the safety, medical, and mental
health needs of patients either by increasing the capacity of existing
health professionals and staff to address these issues or by
contracting with or hiring domestic violence advocates to provide the
services.
This bill would also authorize the Secretary of Health and Human
Services to award grants in the amount of $5 million per year to
strengthen the response of State and local health care systems to
domestic violence by building the capacity of health personnel to
identify, address, and prevent domestic violence. Up to 10 grants would
be utilized to design and implement comprehensive statewide strategies
in clinical and public healthcare settings and to promote education and
awareness about domestic violence at a statewide
[[Page S3305]]
level. Up to 10 additional grants would be used to design and implement
comprehensive local strategies to improve the response of the health
care system in hospitals, clinics, managed care settings, emergency
medical services, and other health care settings.
Finally, this bill would also ensure that health care professionals
working in the National Health Service Corps receiving training on how
to screen, assess, treat and refer patients who are victims of domestic
violence. Our health care system represents a potentially life saving
point of intervention for those experiencing domestic violence. We need
to support these efforts to improve the ability of our health care
system to be a safe place for women to turn to when most in need.
Madam President, I ask unanimous consent that a summary of the bill
be printed in the Record.
There being no objection, the summary was ordered to be printed in
the Record, as follows:
Summary--The Domestic Violence Screening and Services Act of 2002
overview
The Domestic Violence Screening and Services Act of 2002
would create domestic violence prevention grants to improve
screening and treatment for patients at Federally Qualified
Health Centers. The bill would also provide grants to
strengthen the response of State and local health care
systems to domestic violence and would ensure that health
care professionals working in the National Health Service
Corps receive training on how to screen, assess, treat, and
render patients who are victims of domestic violence.
federally qualified health centers
In an effort to increase screening and access to services
for these patients who are or may be experiencing domestic
violence the bill amends Part P of title III of the Public
Health Service Act by adding a new Sec. 3990 creating
Domestic Violence Prevention Grants in the amount of 5
million dollars per year for four years.
Funds would be used to design and implement comprehensive
local strategies to improve the health care response to
domestic violence in federally qualified health centers.
These strategies would include: the development,
implementation, dissemination, and evaluation of policies and
procedures to guide health care professionals and staff
responding to domestic violence; the provision of training
and follow-up technical assistance to health care
professionals and staff to screen for domestic violence, and
then to appropriately assess, record in medical records,
treat, and refer patients who are victims of domestic
violence to domestic violence services; the development of
on-site access to services to address the safety, medical,
mental health, and economic needs of patients either by
increasing the capacity of existing health care
professionals and staff to address these issues or by
contracting with or hiring domestic violence advocates to
provide the services.
Grants for Domestic Violence Screening and Treatment in State and Local
healthcare Systems
The Secretary of Health and Human Services acting through
the Assistant Secretary for the Administration for Children
and Families shall award grants to fund 10 demonstration
projects at the state level and 10 demonstration grants on
the local level to develop comprehensive strategies to
improve the response of the healtcare system to domestic
violence. Recommended authorization is $5 million/year for
four years.
Eligible entities--would be: A. a State or local health
department, nonprofit State domestic violence coalition or
local service-based program, State professional medical
society, State health professional association, or other
nonprofit or State entity with a history of effective work in
the field of domestic violence; that can B. demonstrate that
it is representing a team of organizations and agencies
working collaboratively to strengthen the health care
system's response to domestic violence and that such team
includes domestic violence and health care organizations.
Use of funds--Funds would be used to design and implement
comprehensive statewide and local strategies to improve the
health care response to domestic violence in hospitals,
clinics, managed care settings, emergency medical services,
and other health care settings. These strategies would
include: the development, implementation, dissemination, and
evaluation of policies and procedures to guide health care
professionals and staff responding to domestic violence; the
provision of training and follow-up technical assistance to
health care professionals and staff to screen for domestic
violence, and then to appropriately assess, record in medical
records, treat, and refer patients who are victims of
domestic violence the domestic violence services; the
implementation of practice guidelines for routine screening
and recording mechanisms to identify and document domestic
violence; the development of on-site access to services to
address the safety, medical, mental health, and economic
needs of patients either by increasing the capacity of
existing health care professionals and staff to address these
issues or by contracting with or hiring domestic violence
advocates to provide the services or other model appropriate
to the geographic and cultural needs of a site.
In additional required that health care professionals
trained through the National Health Service Corps receiving
in domestic violence screening and treatment.
______
By Mr. ROCKEFELLER:
S. 2237. A bill to amend title 38, United States Code, to enhance
compensation for veterans with hearing loss, and for other purposes; to
the Committee on Veterans' Affairs.
Mr. ROCKEFELLER. Madam President, today I introduce legislation on
behalf of American veterans whose hearing loss may have resulted from
their military service. The Veterans Hearing Loss Compensation Act of
2002 would accomplish two goals: first, it would correct a long-
standing inequity in compensating veterans for service-related hearing
loss. Second, it would direct VA, with input from outside experts, to
determine whether service in certain military occupations can be
presumed to be associated with hearing loss.
Currently, section 1160 of title 38, United States Code, directs VA
to extend special consideration when evaluating veterans' service-
connected disabilities in ``paired organs or extremities,'' such as
eyes, kidneys, or hands. If there is damage to both organs, even if
only one resulted from military service, the disability of the non-
service-connected organ may be considered.
For all listed disabilities except hearing loss, the law requires
only ``loss'' or ``loss of use,'' whereas ``total deafness'' is
required in rating hearing loss. If hearing loss in either ear is
anything less than total, VA cannot even consider the loss in the non-
service-connected ear. Section 2 of this bill would remove this
requirement for total hearing loss in either ear, allowing VA to
consider the effect of any non-service-connected disability when rating
hearing loss.
Section 3 of this bill would require VA to contract with an
independent scientific organization, such as the National Academy of
Sciences, to review scientific evidence on occupational hearing loss,
particularly acoustic trauma experienced during military service. This
legislation would also require VA to review its own claims and record
of medical treatment for hearing loss or tinnitus in veterans. Through
these two avenues, VA should be better able to determine objectively
whether service in certain military specialties might be associated
with an increased risk of hearing loss later in life.
Once the outside scientific authority reports to VA, the Secretary
would be required to determine whether the evidence warrants presuming
an association between certain military occupations and hearing loss or
tinnitus. If VA finds sufficient evidence linking noise exposure in
these occupations to veterans' later hearing loss, the Secretary would
be required to develop regulations for providing disability benefits to
these veterans; if VA determines that no presumptive service-connection
is appropriate, the Secretary would be required to publish this
determination and report to Congress on the basis of that decision.
With the aging of the veterans population, the number of claims for
hearing loss or tinnitus continues to climb. VA faces difficulties in
determining whether certain veterans can attribute their hearing loss
to damage suffered decades ago during military service, especially as
many veterans received no appropriate hearing evaluation at discharge.
I realize that the proposed process is not an immediate fix, but it
should provide VA, Congress, and veterans with a solid basis for
tackling this difficult problem. I urge my colleagues to join me in
supporting this important piece of legislation.
I request 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. 2237
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 ``Veterans Hearing Loss
Compensation Act of 2002''.
SEC. 2. COMPENSATION FOR HEARING LOSS IN PAIRED ORGANS.
(a) Hearing Loss Required for Compensation.--Section
1160(a)(3) of title 38, United
[[Page S3306]]
States Code, is amended by striking ``total'' both places it
appears.
(b) Effective Date.--The amendment made by subsection (a)
shall take effect on the date of the enactment of this Act,
and shall apply with respect to months that begin on or after
that date.
SEC. 3. AUTHORITY FOR PRESUMPTION OF SERVICE-CONNECTION FOR
HEARING LOSS ASSOCIATED WITH PARTICULAR
MILITARY OCCUPATIONAL SPECIALTIES.
(a) In General.--(1) Subchapter II of chapter 11 of title
38, United States Code, is amended by adding at the end the
following new section:
``Sec. 1119. Presumption of service connection for hearing
loss associated with particular military occupational
specialties
``(a) For purposes of section 1110 of this title, and
subject to section 1113 of this title, hearing loss,
tinnitus, or both of a veteran who while on active military,
naval, or air service was assigned to a military occupational
specialty or equivalent described in subsection (b) shall be
considered to have been incurred in or aggravated by such
service, notwithstanding that there is no record of evidence
of such hearing loss or tinnitus, as the case may be, during
the period of such service.
``(b) A military occupational specialty or equivalent
referred to in subsection (a) is a military occupational
specialty or equivalent, if any, that the Secretary
determines in regulations prescribed under this section in
which individuals assigned to such military occupational
specialty or equivalent in the active military, naval, or air
service are or were likely to be exposed to a sufficiently
high level of acoustic trauma as to result in permanent
hearing loss, tinnitus, or both.
``(c) In making determinations for purposes of subsection
(b), the Secretary shall take into account the report
submitted to the Secretary by the National Academy of
Sciences under section 3(c) of the Veterans Hearing Loss
Compensation Act of 2002.
``(d)(1) Not later than 60 days after the date on which the
Secretary receives the report referred to in subsection (c),
the Secretary shall determine whether or not a presumption of
service connection for hearing loss, tinnitus, or both is
warranted for the hearing loss, tinnitus, or both, as the
case may be, of individuals assigned to each military
occupational specialty or equivalent identified by the
National Academy of Sciences in such report as a military
occupational specialty or equivalent in which individuals are
or were likely to be exposed to a sufficiently high level of
acoustic trauma as to result in permanent hearing loss,
tinnitus, or both to a degree which would be compensable as a
service-connected disability under the laws administered by
the Secretary.
``(2) If the Secretary determines under paragraph (1) that
a presumption of service connection is warranted with respect
to any military occupational specialty or equivalent
described in that paragraph and hearing loss, tinnitus, or
both, the Secretary shall, not later than 60 days after the
date of the determination, issue proposed regulations setting
forth the Secretary's determination.
``(3) If the Secretary determines under paragraph (1) that
a presumption of service connection is not warranted with
respect to any military occupational specialty or equivalent
described in that paragraph and hearing loss, tinnitus, or
both, the Secretary shall, not later than 60 days after the
date of the determination--
``(A) publish the determination in the Federal Register;
and
``(B) submit to the Committees on Veterans' Affairs of the
Senate and the House of Representatives a report on the
determination, including a justification for the
determination.
``(e) Any regulations issued under subsection (d)(2) shall
take effect on the date provided for in such regulations. No
benefit may be paid under this section for any month that
begins before that date.''.
(2) The table of sections at the beginning of chapter 11 of
that title is amended by inserting after the item relating to
section 1118 the following new item:
``1119. Presumption of service connection for hearing loss associated
with particular military occupational specialties.''.
(b) Presumption Rebuttable.--Section 1113 of title 38,
United States Code, is amended by striking ``or 1118'' each
place it appears and inserting ``1118, or 1119''.
(c) Assessment of Acoustic Trauma Associated With Various
Military Occupational Specialties.--(1) The Secretary of
Veterans Affairs shall seek to enter into an agreement with
the National Academy of Sciences, or another appropriate
scientific organization, for the Academy to perform the
activities specified in this subsection. The Secretary shall
seek to enter into the agreement not later than 60 days after
the date of the enactment of this Act.
(2) Under the agreement under paragraph (1), the National
Academy of Sciences shall--
(A) review and assess available data on occupational
hearing loss;
(B) from such data, identify the forms of acoustic trauma
that, if experienced by individuals in the active military,
naval, or air service, could cause or contribute to hearing
loss, hearing threshold shift, or tinnitus in such
individuals;
(C) in the case of each form of acoustic trauma identified
under subparagraph (B)--
(i) determine how much exposure to such form or acoustic
trauma is required to cause or contribute to hearing loss,
hearing threshold shift, or tinnitus, as the case may be, and
at what noise level; and
(ii) determine whether or not such hearing loss, hearing
threshold shift, or tinnitus, as the case may be, is--
(I) immediate or delayed onset;
(II) cumulative;
(III) progressive; or
(IV) any combination of subclauses (I) through (III);
(D) review and assess the completeness and accuracy of data
of the Department of Veterans Affairs and the Department of
Defense on hearing threshold shift in individuals who were
discharged or released from service in the Armed Forces
during the period beginning on December 7, 1941, and ending
on the date of the enactment of this Act upon their discharge
or release from such service; and
(E) identify each military occupational specialty or
equivalent, if any, in which individuals assigned to such
military occupational specialty or equivalent in the active
military, naval, or air service are or were likely to be
exposed to a sufficiently high level of acoustic trauma as to
result in permanent hearing loss, tinnitus, or both to a
degree which would be compensable as a service-connected
disability under the laws administered by the Secretary of
Veterans Affairs.
(3) Not later than 180 days after the date of the entry
into the agreement referred to in paragraph (1), the National
Academy of Sciences shall submit to the Secretary a report on
the activities of the National Academy of Sciences under the
agreement, including the results of the activities required
by subparagraphs (A) through (F) of paragraph (2).
(d) Report on Administration of Benefits for Hearing Loss
and Tinnitus.--(1) Not later than 180 days after the date of
the enactment of this Act, the Secretary of Veterans Affairs
shall submit to the Committees on Veterans' Affairs of the
Senate and the House of Representatives a report on the
claims submitted to the Secretary for disability compensation
or health care for hearing loss or tinnitus.
(2) The report under paragraph (1) shall include the
following:
(A) The number of claims submitted to the Secretary in each
of 1999, 2000, and 2001 for disability compensation for
hearing loss, tinnitus, or both.
(B) Of the claims referred to in subparagraph (A)--
(i) the number of claims for which disability compensation
was awarded, set forth by year;
(ii) the number of claims assigned each disability rating;
and
(iii) the total amount of disability compensation paid on
such claims during such years.
(C) The total cost to the Department of adjudicating the
claims referred to in subparagraph (A), set forth in terms of
full-time employee equivalents (FTEEs).
(D) The total number of veterans who sought treatment in
Department of Veterans Affairs health facilities care in each
of 1999, 2000, and 2001 for hearing-related disorders, set
forth by--
(i) the number of veterans per year; and
(ii) the military occupational specialties or equivalents
of such veterans during their active military, naval, or air
service.
(E) The health care furnished to veterans referred to in
subparagraph (D) for hearing-related disorders, including the
number of veterans furnished hearing aids and the cost of
furnishing such hearing aids.
______
By Mr. LEVIN (for himself, Mr. Thompson, Mr. Lieberman, and Mr.
McConnell):
S. 2238. A bill to permit reviews of criminal records of applicants
for private security officer employment; to the Committee on the
Judiciary.
Mr. LEVIN. Madam President, I am introducing along with Senators
Thompson, Lieberman and McConnell the Private Security Officer
Employment Standards Act of 2002, a bill that would provide private
security firms an opportunity to gain access to national criminal
history information to determine whether or not employees or applicants
for employment pose a threat to the facilities and persons they are
supposed to protect.
Large numbers of critical non-governmental facilities, from power
plants to schools to hospitals, are protected by private security firms
and their civilian security officers. Keeping these facilities secure
from terrorism or other forms of violent attack is critical to our
national security. Yet currently most private security employers cannot
obtain timely national criminal background check information on the
very people they need to hire to protect these key facilities. This
legislation seeks to correct that. This bill would authorize private
security firms to request Federal background check information on
current and prospective employees through the appropriate State
agencies, thereby permitting firms to obtain relevant criminal history
information they might not otherwise receive.
[[Page S3307]]
The Criminal Justice Information Services Division of the FBI
maintains complete criminal history records for both Federal crimes and
State crimes on individuals with criminal records in the United States.
Searches are most efficiently conducted by using fingerprints to ensure
efficiency and accuracy. We have already passed legislation
specifically permitting other industries, the banking, nursing home,
and child care industries, to name a few, to test their prospective
employees against the FBI's comprehensive records. Many of the reasons
that justified passage of those laws, especially the desire to ensure
that those who provide certain important services have a background
commensurate with their responsibilities, argues for passage of this
bill as well.
This legislation will enhance our Nation's security. As an adjunct to
our Nation's law enforcement officers, private security guards are
responsible for the protection of numerous critical components of our
Nation's infrastructure, including power generation facilities,
hazardous materials manufacturing facilities, water supply and delivery
facilities, oil and gas refineries, and food processing plants. The
approximately 13,000 private security companies in the United States
employ about 1.5 million persons nationwide. Given the critical nature
of the facilities private security officers are hired to protect, it is
imperative that we provide access to information that might disclose
who is unsuitable for protecting these resources.
We understand that in about 40 States, private security companies are
required to receive a State license in order to conduct business.
Relying upon a Federal bill passed in the early 1970's, 37 States and
the District of Columbia have passed legislation authorizing State
agencies to request both State and Federal record searches. Despite
this authorization, security firms report that searches of both State
and Federal databases is the exception rather than the rule. That is
because only one State, California, makes such reviews mandatory. In
the other jurisdictions with authorizing statutes, reviews of the
Federal database are conducted at the discretion of the States. I am
told that in approximately half of the 36 States with authorizing
statutes, typically only State databases are searched. An additional 13
States have not even authorized any form of Federal criminal background
check. What that means is that in approximately 31 States, a private
security employer typically has no access to any Federal criminal
database information. In these 31 States, an employment applicant in 1
State could have a serious criminal conviction in another State and
still be permitted to perform sensitive security work. The State
conducting the search would have no idea such a conviction in another
State existed without access to the Federal database.
Further, even in those few States that actually conduct Federal
records searches, I am told that searches of the backgrounds of new
employees in the Federal database often take 90 to 120 days. While
checks are pending, security guards are often provided a temporary
license. This 90 to 120 day period is more than enough time for a guard
with a temporary license to perpetrate dangerous acts. In light of our
urgent need to strengthen our homeland security, this lack of access to
criminal checks and the time it takes to complete such checks is
unacceptable. We need to act in order to make it easier for States and
employers to gain timely access to this information.
The bill strikes the appropriate balance between the interests of all
parties involved.
First, the bill permits private security employers to request that
the FBI criminal history database be searched for prospective or
existing employees. Requests must be made by the employers through
their States' identification bureau or similar State agency designated
by the Attorney General. Employers will not be granted direct access to
the FBI records. Instead, States will serve as intermediaries between
employers and the FBI to: one, ensure that employment suitability
determinations are made pursuant to applicable State law; two, prevent
disclosure of the raw FBI criminal history information to the employers
and the public; and three, minimize the FBI's administrative burden of
having to respond to background check requests from countless different
sources. The program will not cost the Federal Government anything. The
legislation allows the FBI, and States if they so choose, to charge
reasonable fees to security firms to recover their costs of carrying
out this act.
Second, the bill protects employee and prospective employee's
privacy. Before an FBI background check can be conducted, the employee
or applicant for employment must grant an employer written consent to
request the FBI database search. In addition, the criminal history
reports received by the States will not be disseminated to employers.
Instead, in States that have laws regulating private security guard
employment, designated State agencies will simply be required to use
the information provided by the FBI in applying their State standards.
For those States that have no standards, the States will be instructed
to inform requesting employers whether or not employees or applicants
have been convicted of either: one, a felony; two, a violent
misdemeanor within the past 10 years; or, three, crime of dishonesty
within the past 10 years. Thus, only the fact that a conviction exists
or not will be provided by States to employers, and the privacy of the
records themselves will be maintained. All information provided to
employers pursuant to this act must be provided to the employees or
prospective employees. Furthermore, the bill establishes strong
criminal penalties for those who might falsely certify they are
authorized security firms or otherwise use information obtained
pursuant to this act beyond the act's intended purposes.
Third, the bill protects States' rights. The bill does not impose an
unfunded mandate on the States. It reserves the right of States to
charge reasonable fees to employers for their costs in administering
this act. Moreover, if a State wishes to opt out of this statutory
regime, it may do so at any time.
I believe that the time is right for us to enact this legislation. It
strikes the right balance between the need for employers to gain access
to this critical information and the privacy rights of current and
prospective security guards. We have worked with the FBI to ease the
administrative process, and it will cost the Federal Government
nothing. There is no undue burden being placed on our States.
Passage of this act will plug a hole in our homeland security. I urge
my colleagues to support the passage of this legislation.
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. 2238
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 ``Private Security Officer
Employment Standards Act of 2002''.
SEC. 2. FINDINGS.
Congress finds that--
(1) employment of private security officers in the United
States is growing rapidly;
(2) private security officers function as an adjunct to,
but not a replacement for, public law enforcement by helping
to reduce and prevent crime;
(3) such private security officers protect individuals,
property, and proprietary information, and provide protection
to such diverse operations as banks, hospitals, research and
development centers, manufacturing facilities, defense and
aerospace contractors, high technology businesses, nuclear
power plants, chemical companies, oil and gas refineries,
airports, communication facilities and operations, office
complexes, schools, residential properties, apartment
complexes, gated communities, and others;
(4) sworn law enforcement officers provide significant
services to the citizens of the United States in its public
areas, and are supplemented by private security officers;
(5) the threat of additional terrorist attacks requires
cooperation between public and private sectors and demands
professional security officers for the protection of people,
facilities, and institutions;
(6) the trend in the Nation toward growth in such security
services has accelerated rapidly;
(7) such growth makes available more public sector law
enforcement officers to combat serious and violent crimes;
(8) the American public deserves the employment of
qualified, well-trained private security personnel as an
adjunct to sworn law enforcement officers;
[[Page S3308]]
(9) private security officers and applicants for private
security officer positions should be thoroughly screened and
trained; and
(10) standards are essential for the selection, training,
and supervision of qualified security personnel providing
security services.
SEC. 3. DEFINITIONS.
In this Act:
(1) Employee.--The term ``employee'' includes both a
current employee and an applicant for employment.
(2) Authorized employer.--The term ``authorized employer''
means any person that--
(A) provides, as an independent contractor, for
consideration, the services of private security officers; and
(B) is authorized by the Attorney General to obtain
information provided by the State or other authorized entity
pursuant to this section.
(3) Private security officer.-- The term ``private security
officer''--
(A) means an individual who performs security services,
full- or part-time, for consideration as an independent
contractor or an employee, whether armed or unarmed and in
uniform or plain clothes, whose primary duty is to perform
security services; but
(B) does not include--
(i) sworn police officers who have law enforcement powers
in the State;
(ii) employees whose duties are primarily internal audit or
credit functions;
(iii) an individual on active duty in the military service;
(iv) employees of electronic security system companies
acting as technicians or monitors; or
(v) employees whose duties primarily involve the secure
movement of prisoners.
(4) Security services.--The term ``security services''
means the performance of security services as such services
are defined by regulations promulgated by the Attorney
General.
SEC. 4. BACKGROUND CHECKS.
(a) In General.--
(1) Submission of fingerprints.--An authorized employer may
submit fingerprints or other means of positive identification
of an employee of such employer for purposes of a background
check pursuant to this Act.
(2) Employee rights.--
(A) Permission.--An authorized employer shall obtain
written consent from an employee to submit the request for a
background check of the employee under this Act.
(B) Access.--An employee shall be provided confidential
access to information relating to the employee provided
pursuant to this Act to the authorized employer.
(3) Providing records.--Upon receipt of a background check
request from an authorized employer, submitted through the
State identification bureau or other entity authorized by the
Attorney General, the Attorney General shall--
(A) search the appropriate records of the Criminal Justice
Information Services Division of the Federal Bureau of
Investigation; and
(B) promptly provide any identification and criminal
history records resulting from the background checks to the
submitting State identification bureau or other entity
authorized by the Attorney General.
(4) Frequency of requests.--An employer may request a
background check for an employee only once every 12 months of
continuous employment by that employee unless the employer
has good cause to submit additional requests.
(b) Regulations.--Not later than 180 days after the date of
enactment of this Act, the Attorney General shall issue such
final or interim final regulations as may be necessary to
carry out this Act, including--
(1) measures relating to the security, confidentiality,
accuracy, use, submission, dissemination, and destruction of
information and audits, and recordkeeping;
(2) standards for qualification as an authorized employer;
and
(3) the imposition of reasonable fees necessary for
conducting the background checks.
(c) Criminal Penalty.--Whoever falsely certifies that he
meets the applicable standards for an authorized employer or
who knowingly and intentionally uses any information obtained
pursuant to this Act other than for the purpose of
determining the suitability of an individual for employment
as a private security officer shall be fined not more than
$50,000 or imprisoned for not more than 2 years, or both.
(d) User Fees.--
(1) In general.--The Director of the Federal Bureau of
Investigation may--
(A) collect fees pursuant to regulations promulgated under
subsection (b) to process background checks provided for by
this Act;
(B) notwithstanding the provisions of section 3302 of title
31, United States Code, retain and use such fees for salaries
and other expenses incurred in providing such processing; and
(C) establish such fees at a level to include an additional
amount to remain available until expended to defray expenses
for the automation of fingerprint identification and criminal
justice information services and associated costs.
(2) State costs.--Nothing in this Act shall be construed as
restricting the right of a State to assess a reasonable fee
on an authorized employer for the costs to the State of
administering this Act.
(e) State Opt Out.--A State may decline to participate in
the background check system authorized by this Act by
enacting a law providing that the State is declining to
participate pursuant to this subsection.
(f) State Standards and Information Provided to Employer.--
(1) Absence of state standard.--If a State participates in
the background check system authorized by this Act and has no
State standard for qualification to be a private security
officer, the State shall notify an authorized employer
whether or not an employee has been convicted of a felony, an
offense involving dishonesty or false statement if the
conviction occurred during the previous 10 years, or an
offense involving the use or attempted use of physical force
against the person of another if the conviction occurred
during the previous 10 years.
(2) State standard.--If a State participates in the
background check system authorized by this Act and has State
standards for qualification to be a private security officer,
the State shall use the information received pursuant to this
Act in applying the State standard and shall notify the
employer of the results.
______
By Mr. SARBANES (for himself, Mr. Ensign, Mr. Schumer, Mr.
Corzine, Mr. Allard, Mr. Carper, Mr. Bunning, Mrs. Clinton, Mr.
Torricelli, and Mr. Santorum):
S. 2239. A bill to amend the National Housing Act to simplify the
downpayment requirements for FHA mortgage insurance for single family
homebuyers; to the Committee on Banking, Housing, and Urban Affairs.
Mr. SARBANES. Madam President, today I am introducing the ``FHA
Downpayment Simplification Act of 2002'' with a number of my
colleagues. As the list of original cosponsors indicates, this piece of
legislation has broad, bipartisan support. This is because the Federal
Housing Administration, FHA, has long been a tool to increase
homeownership in America.
Since its inception in 1934, the FHA has helped millions of American
families achieve the dream of homeownership. Currently, FHA accounts
for about 20 percent of the mortgage market. However, FHA is even more
important to first time homebuyers, buyers with lower incomes, and
minority homebuyers, many of whom have not been well served by the
traditional marketplace. For these borrowers, FHA is the ticket to the
American dream.
Indeed, the very strong economy helped raise overall homeownership
rates through the 1990s to historically high levels, both for the
population as a whole and among underserved buyers. By 1999,
homeownership increased to 66.8 percent. But it was the FHA that helped
ensure those benefits were widely available.
For example, according to data provided by the Department of Housing
and Urban Development, HUD, first time homebuyers accounted for 82
percent of all FHA loans in the year 2000; almost half of FHA-insured
loans went to low-income borrowers in metropolitan areas; and over one-
third of FHA loans went to African-American and Hispanic borrowers. In
each case, FHA played a more significant role than the conventional
market.
The role played by FHA in spreading the benefits of homeownership to
a broader range of Americans is the central reason my colleagues and I
believe it is important to renew and make permanent the law authorizing
the streamlined downpayment calculation for all FHA single family
insured loans. The streamlined downpayment, which is current law, was
initially tried as a pilot in Hawaii and Alaska in 1996 before being
extended nationwide in 1998. It was subsequently reauthorized again
until the end of this year. Without Congressional action, the law will
expire, resulting in higher costs for millions of Americans seeking the
benefits of homeownership.
The streamlined downpayment process, as its name implies, is
relatively simple and straightforward. The buyer puts down at least 3
percent of the acquisition cost of the home. The acquisition cost
includes both the sales price and the closing costs. The old system
required different downpayment rates for each portion of a mortgage.
This approach is complex, multi-step calculation that often confused
consumers, realtors, and lenders alike, and resulted in higher overall
closing costs for the consumer.
For example, for a property with a sales price of $150,000 and $3,000
in closing costs, the streamlined approach that would be continued by
this legislation would save the borrower almost
[[Page S3309]]
$2,200 in closing costs. For a more modest home costing $100,000 with
$2,000 in closing costs, the savings would be about $350 over the old
system.
The streamlined FHA downpayment process has been working extremely
well. That is why both the National Association of Realtors and the
Mortgage Bankers Association of America support this legislation.
Promoting homeownership is an important value that all of us have
supported through the years. Passing this legislation is one way to
help more and more Americans achieve this important goal.
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. 2239
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 ``FHA Downpayment
Simplification Act of 2002''.
SEC. 2. DOWNPAYMENT SIMPLIFICATION.
Section 203 of the National Housing Act (12 U.S.C. 1709) is
amended--
(1) in subsection (b)--
(A) by striking ``shall--'' and inserting ``shall comply
with the following:'';
(B) in paragraph (2)--
(i) in subparagraph (A), in the matter that precedes clause
(ii), by moving the margin 2 ems to the right;
(ii) in the undesignated matter immediately following
subparagraph (B)(iii)--
(I) by striking the second and third sentences of such
matter; and
(II) by striking the sixth sentence (relating to the
increases for costs of solar energy systems) and all that
follows through the end of the last undesignated paragraph
(relating to disclosure notice); and
(iii) by striking subparagraph (B) and inserting the
following:
``(B) not to exceed an amount equal to the sum of--
``(i) the amount of the mortgage insurance premium paid at
the time the mortgage is insured; and
``(ii) in the case of--
``(I) a mortgage for a property with an appraised value
equal to or less than $50,000, 98.75 percent of the appraised
value of the property;
``(II) a mortgage for a property with an appraised value in
excess of $50,000 but not in excess of $125,000, 97.65
percent of the appraised value of the property;
``(III) a mortgage for a property with an appraised value
in excess of $125,000, 97.15 percent of the appraised value
of the property; or
``(IV) notwithstanding subclauses (II) and (III), a
mortgage for a property with an appraised value in excess of
$50,000 that is located in an area of the State for which the
average closing cost exceeds 2.10 percent of the average, for
the State, of the sale price of properties located in the
State for which mortgages have been executed, 97.75 percent
of the appraised value of the property.'';
(C) by transferring and inserting the text of paragraph
(10)(B) after the period at the end of the first sentence of
the undesignated paragraph that immediately follows paragraph
(2)(B) (relating to the definition of ``area''); and
(D) by striking paragraph (10); and
(2) by inserting after subsection (e), the following:
``(f) Disclosure of Other Mortgage Products.--
``(1) In general.--In conjunction with any loan insured
under this section, an original lender shall provide to each
prospective borrower a disclosure notice that provides a 1-
page analysis of mortgage products offered by that lender and
for which the borrower would qualify.
``(2) Notice.--The notice required under paragraph (1)
shall include--
``(A) a generic analysis comparing the note rate (and
associated interest payments), insurance premiums, and other
costs and fees that would be due over the life of the loan
for a loan insured by the Secretary under subsection (b) with
the note rates, insurance premiums (if applicable), and other
costs and fees that would be expected to be due if the
mortgagor obtained instead other mortgage products offered by
the lender and for which the borrower would qualify with a
similar loan-to-value ratio in connection with a conventional
mortgage (as that term is used in section 305(a)(2) of the
Federal Home Loan Mortgage Corporation Act (12 U.S.C.
1454(a)(2)) or section 302(b)(2) of the Federal National
Mortgage Association Charter Act (12 U.S.C. 1717(b)(2)), as
applicable), assuming prevailing interest rates; and
``(B) a statement regarding when the requirement of the
mortgagor to pay the mortgage insurance premiums for a
mortgage insured under this section would terminate, or a
statement that the requirement shall terminate only if the
mortgage is refinanced, paid off, or otherwise terminated.''.
SEC. 3. CONFORMING AMENDMENTS.
Section 245 of the National Housing Act (12 U.S.C. 1715z-
10) is amended--
(1) in subsection (a), by striking ``, or if the
mortgagor'' and all that follows through ``case of
veterans''; and
(2) in subsection (b)(3), by striking ``, or, if the'' and
all that follows through ``for veterans,''.
Mr. ENSIGN. Madam President, I rise today, along with the senior
Senator from Maryland, Mr. Sarbanes, to introduce a bill that will help
thousands of Americans achieve the dream of homeownership.
Homeownership is the primary source of a household's net worth and
the fundamental first step toward accumulating personal wealth. It is
also one of the greatest driving forces to a healthy economy for our
Nation. Congress must work hard to produce public policies that promote
homeownership to further America's growth and prosperity. This
legislation does just that.
The legislation we are introducing today will make permanent an
existing down payment simplification program that created a simplified
formula to determine the proper down payment for FHA loans. This
program has become an invaluable tool for helping thousands of families
achieve the American dream of buying their first home. This bill will
permanently eliminate the burdensome and unnecessary formulas
previously used to determine the proper down payment for FHA loans, and
will also lower the size of necessary down payments.
The simplified calculation was begun as a pilot program in 1996 in
Hawaii and Alaska. It proved so easy and successful that it was
temporarily extended nationwide in 1998. In 2000, the calculation was
re-extended 27 months, to December 31, 2002. Unless Congress extends
the program, home buyers will be required to use the old, complicated
and confusing method of calculating the appropriate down payment
amounts for all loans after December 31.
To help my colleagues understand the importance of making this
program permanent, I should explain the basic difference between the
two formulas.
Under the down payment simplification program, FHA borrowers must
make cash contributions of at least 3 percent of the acquisition cost,
including closing costs of the loan. It is that simple.
Under the old formula, different down payment rates were required for
each portion of a mortgage. For example, if the acquisition cost of the
home is $150,000, the borrower would have to pay 3 percent on the first
$25,000, 5 percent on the next $100,000 and 10 percent on the final
$25,000. And that's not all. There is also another set of calculations
done based on the appraised value of the home to determine the maximum
allowable mortgage in any transaction.
Clearly, the streamlined formula is a far more simple process. In the
end, the down payment simplification process results in lowering the
amount of the down payment necessary to purchase a FHA single-family
home and simplifies the formula for the homebuyer in the process.
It is estimated that one-third of all FHA borrowers will have to make
higher down payments if the simplification process is not made
permanent. This could mean that without passage of this legislation,
thousands of families that otherwise could afford to buy their homes
will be denied the chance to do so because an unnecessarily complicated
formula will create large, unaffordable down payments.
The effects would be particularly acute in states where over 40
percent of the buyers would be affected, such as California, Colorado,
Maryland, New Jersey, New York, Virginia, Washington, Utah,
Massachusetts, Minnesota, Nevada, Oregon, Connecticut, Alaska, Hawaii
and New Hampshire.
In 2001, in my home State of Nevada alone, over 16,600 families
purchased a home with a FHA insured loan. Of those, all benefitted by
having a more simple process to follow, while 6,761 homebuyers
benefitted from the streamlined formula process with a lower down
payment. That is an amazing amount of homes that may not have been
purchased had this program not been in place.
I ask my colleagues for their support of this important legislation.
If passed, this legislation will help thousands of Americans throughout
our country realize their dream of homeownership.
In closing, I would like to thank the Senator from Maryland, Mr.
Sarbanes, for all his hard work on this very important legislation. I
appreciate his determination to make home ownership a reality for so
many Americans.
[[Page S3310]]
______
By Mr. LEAHY (for himself, Mr. Daschle, Mr. Torricelli, Mr.
Kennedy, Mr. Harkin, Mr. Bingaman, Mr. Feingold, and Mr.
Johnson):
S. 2240. A bill to combat nursing home fraud and abuse, increase
protections for victims of telemarketing fraud, enhance safeguards for
pension plans and health care benefit programs, and enhance penalties
for crimes against seniors, and for other purposes; to the Committee on
the Judiciary.
Mr. LEAHY. Madam President, today I am introducing the Seniors Safety
Act of 2002, a bill to protect older Americans from crime. I am pleased
to have Senators Daschle, Kennedy, Torricelli, Harkin, Bingaman,
Feingold, and Johnson as cosponsors for this anti-crime bill.
The Seniors Safety Act contains a comprehensive package of proposals
to address the most prevalent crimes perpetrated against seniors,
including proposals to reduce health care fraud and abuse, combat
nursing home fraud and abuse, prevent telemarketing fraud, and
safeguard pension and employee benefit plans from fraud, bribery, and
graft. In addition, this legislation would help seniors obtain
restitution if their pension plans are defrauded.
Older Americans are the most rapidly growing population group in our
society, making them an even more attractive target for criminals. The
Department of Health and Human Services has predicted that the number
of older Americans will grow from 13 percent of the U.S. population in
2000 to 20 percent by 2030. In Vermont, seniors comprise about 12
percent of the population, and it is expected that that number will
increase to 20 percent by 2025.
As the Nation's crime rates dropped dramatically during the 1990s,
crime against seniors remained stubbornly resistant. This may be
because elders are susceptible to more fraud crimes and fewer violent
crimes than younger Americans. According to a 2000 Justice Department
study, more than 9 out of 10 crimes committed against older Americans
were property crimes, most especially theft. As our Nation addressed
our violent crime problem, we did not take a comprehensive approach to
deterring the crimes that so affect the elderly, like telemarketing
fraud, health care fraud, and pension fraud. The Seniors Safety Act
provides such a comprehensive approach, and I urge the Senate to do its
part to make it law.
The Seniors Safety Act instructs the U.S. Sentencing Commission to
review current sentencing guidelines and, if appropriate, amend the
guidelines to include the age of a crime victim as a criterion for
determining whether a sentencing enhancement is proper. The bill also
requires the Commission to review sentencing guidelines for health care
benefit fraud, increases statutory penalties both for fraud resulting
in serious injury or death and for bribery and graft in connection with
employee benefit plans, and increases criminal and civil penalties for
defrauding pension plans.
One particular form of criminal activity, telemarketing fraud,
disproportionately impacts Americans over the age of 50, who account
for over a third of the estimated $40 billion lost to telemarketing
fraud each year. The Seniors Safety Act continues the progress we made
in the 105th Congress with passage of the Telemarketing Fraud
Prevention Act and in the 106th Congress with the Protecting Seniors
from Fraud Act, which included provisions from the Seniors Safety Act
that I introduced in the last Congress. The legislation I introduce
today addresses the problem of telemarketing fraud schemes that too
often succeed in swindling seniors of their life savings. Some of these
schemes are directed from outside the United States, making criminal
prosecution more difficult.
The act would provide the Attorney General with a new, significant
crime-fighting tool to prevent telemarketing fraud. Specifically, the
act would authorize the Attorney General to block or terminate
telephone service to telephone facilities that are being used to
conduct such fraudulent activities. The Justice Department could use
this authority to disrupt telemarketing fraud schemes directed from
foreign sources by cutting off the swindlers' telephone service. Even
if the criminals manage to acquire a new telephone number, temporary
interruptions will prevent some seniors from being victimized.
The bill also establishes a ``Better Business Bureau''-style
clearinghouse at the Federal Trade Commission to provide seniors, their
families, and others who may be concerned about a telemarketer with
information about prior fraud convictions and/or complaints against the
particular company. In addition, the FTC would refer seniors and other
consumers who believe they have been swindled to the appropriate law
enforcement authorities.
Criminal activity that undermines the safety and integrity of pension
plans and health benefit programs threatens all Americans, but most
especially those seniors who have relied on promised benefits in
planning their retirements. Seniors who have worked faithfully and
honestly for years should not reach their retirement years only to find
that the funds they relied upon were stolen. This is a significant
problem. According to the Attorney General's 1997 Annual Report, an
interagency working group on pension abuse brought 70 criminal cases
representing more than $90 million in losses to pension plans in 29
districts around the country in 1997 alone.
The Seniors Safety Act would add to the arsenal that Federal
prosecutors have to prevent and punish fraud against retirement plans.
Specifically, the Act would create new criminal and civil penalties for
defrauding pension plans or obtaining money or property from such plans
by means of false or fraudulent pretenses. In addition, the act would
enhance penalties for bribery and graft in connection with employee
benefit plans. The only people enjoying the benefits of pension plans
should be the people who have worked hard to fund those plans, not
crooks who get the money by fraud.
Health care spending consists of about 15 percent of the gross
national product, or more than $1 trillion each year. Estimated losses
due to fraud and abuse are astronomical. A December 1998 report by the
National Institute of Justice, NIJ, states that these losses ``may
exceed 10 percent of annual health care spending, or $100 billion per
year.''
As more health care claims are processed electronically, without
human involvement, more sophisticated computer-generated fraud schemes
are surfacing. Some of these schemes generate thousands of false claims
designed to pass through automated claims processing to payment,
and result in the theft of millions of dollars from Federal and private
health care programs. Defrauding Medicare, Medicaid and private health
plans increases the financial burden on taxpayers and beneficiaries
alike. In addition, some forms of fraud may result in inadequate
medical care, harming patients' health as well. Unfortunately, the NIJ
reports that many health care fraud schemes ``deliberately target
vulnerable populations, such as the elderly or Alzheimer's patients,
who are less willing or able to complain or alert law enforcement.''
We saw a dramatic increase in criminal convictions for health care
fraud cases during the 1990s. These cases included convictions for
submitting false claims to Medicare, Medicaid, and private insurance
plans; fake billings by foreign doctors; and needless prescriptions for
durable medical equipment by doctors in exchange for kickbacks from
manufacturers. In 1997 alone, $1.2 billion was awarded or negotiated as
a result of criminal fines, civil settlements and judgments in health
care fraud matters.
We can and must do more. The Seniors Safety Act would allow the
Attorney General to bring injunctive actions to stop false claims and
illegal kickback schemes involving Federal health care programs. The
bill would also provide law enforcement authorities with additional
investigatory tools to uncover, investigate, and prosecute health care
offenses in both criminal and civil proceedings.
In addition, whistle-blowers who tip off law enforcement about health
care fraud would be authorized under the Seniors Safety Act to seek
court permission to review information obtained by the Government to
enhance their assistance in False Claims Act lawsuits. Such qui tam, or
whistle-blower, suits have dramatically enhanced the Government's
ability to uncover health
[[Page S3311]]
care fraud. The act would allow whistle-blowers and their qui tam suits
to become even more effective.
Finally, the act would extend anti-fraud and anti-kickback safeguards
to the Federal Employees Health Benefits program. These are all
important steps that will help cut down on the enormous health care
fraud losses.
As life expectancies continue to increase, long-term care planning
specialists estimate that over 40 percent of those turning 65
eventually will need nursing home care, and that 20 percent of those
seniors will spend 5 years or more in homes. Indeed, many of us already
have experienced having our parents, family members or other loved ones
spend time in a nursing home. We owe it to them and to ourselves to
give the residents of nursing homes the best care they can get.
The Justice Department has cited egregious examples of nursing homes
that pocketed Medicare funds instead of providing residents with
adequate care. In one case, five patients died as result of the
inadequate provision of nutrition, wound care and diabetes management
by three Pennsylvania nursing homes. Yet another death occurred when a
patient, who was unable to speak, was placed in a scalding tub of 138-
degree water.
This act provides additional peace of mind to residents of nursing
homes and those of us who may have loved ones there by giving Federal
law enforcement the authority to investigate and prosecute operators of
nursing homes for willfully engaging in patterns of health and safety
violations in the care of nursing home residents. The act also protects
whistle-blowers from retaliation for reporting such violations.
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. 2240
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 ``Seniors
Safety Act of 2002''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.
TITLE I--COMBATING CRIMES AGAINST SENIORS
Sec. 101. Enhanced sentencing penalties based on age of victim.
Sec. 102. Study and report on health care fraud sentences.
Sec. 103. Increased penalties for fraud resulting in serious injury or
death.
Sec. 104. Safeguarding pension plans from fraud and theft.
Sec. 105. Additional civil penalties for defrauding pension plans.
Sec. 106. Punishing bribery and graft in connection with employee
benefit plans.
TITLE II--PREVENTING TELEMARKETING FRAUD
Sec. 201. Centralized complaint and consumer education service for
victims of telemarketing fraud.
Sec. 202. Blocking of telemarketing scams.
TITLE III--PREVENTING HEALTH CARE FRAUD
Sec. 301. Injunctive authority relating to false claims and illegal
kickback schemes involving Federal health care programs.
Sec. 302. Authorized investigative demand procedures.
Sec. 303. Extending antifraud safeguards to the Federal employee health
benefits program.
Sec. 304. Grand jury disclosure.
Sec. 305. Increasing the effectiveness of civil investigative demands
in false claims investigations.
TITLE IV--PROTECTING RESIDENTS OF NURSING HOMES
Sec. 401. Short title.
Sec. 402. Nursing home resident protection.
TITLE V--PROTECTING THE RIGHTS OF ELDERLY CRIME VICTIMS
Sec. 501. Use of forfeited funds to pay restitution to crime victims
and regulatory agencies.
Sec. 502. Victim restitution.
Sec. 503. Bankruptcy proceedings not used to shield illegal gains from
false claims.
Sec. 504. Forfeiture for retirement offenses.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress makes the following findings:
(1) The number of older Americans is rapidly growing in the
United States. According to the 2000 census, 21 percent of
the United States population is 55 years of age or older.
(2) In 1997, 7 percent of victims of serious violent crime
were 50 years of age or older.
(3) In 1997, 17.7 percent of murder victims were 55 years
of age or older.
(4) According to the Department of Justice, persons 65
years of age and older experienced approximately 2,700,000
crimes a year between 1992 and 1997.
(5) Older victims of violent crime are almost twice as
likely as younger victims to be raped, robbed, or assaulted
at or in their own homes.
(6) Approximately half of all Americans who are 50 years of
age or older are afraid to walk alone at night in their own
neighborhoods.
(7) Seniors over 50 years of age reportedly account for 37
percent of the estimated $40,000,000,000 in losses each year
due to telemarketing fraud.
(8) A 1996 American Association of Retired Persons survey
of people 50 years of age and older showed that 57 percent
were likely to receive calls from telemarketers at least once
a week.
(9) In 1998, Congress enacted legislation to provide for
increased penalties for telemarketing fraud that targets
seniors.
(10) It has been estimated that--
(A) approximately 43 percent of persons turning 65 years of
age can expect to spend some time in a long-term care
facility; and
(B) approximately 20 percent can expect to spend 5 years or
more in a such a facility.
(11) In 1997, approximately $82,800,000,000 was spent on
nursing home care in the United States and over half of this
amount was spent by the Medicaid and Medicare programs.
(12) Losses to fraud and abuse in health care reportedly
cost the United States an estimated $100,000,000,000 in 1996.
(13) The Inspector General for the Department of Health and
Human Services has estimated that about $12,600,000,000 in
improper Medicare benefit payments, due to inadvertent
mistake, fraud, and abuse were made during fiscal year 1998.
(14) Incidents of health care fraud and abuse remain common
despite awareness of the problem.
(b) Purposes.--The purposes of this Act are to--
(1) combat nursing home fraud and abuse;
(2) enhance safeguards for pension plans and health care
programs;
(3) develop strategies for preventing and punishing crimes
that target or otherwise disproportionately affect seniors by
collecting appropriate data--
(A) to measure the extent of crimes committed against
seniors; and
(B) to determine the extent of domestic and elder abuse of
seniors; and
(4) prevent and deter criminal activity, such as
telemarketing fraud, that results in economic and physical
harm against seniors, and ensure appropriate restitution.
SEC. 3. DEFINITIONS.
In this Act:
(1) Crime.--The term ``crime'' means any criminal offense
under Federal or State law.
(2) Nursing home.--The term ``nursing home'' means any
institution or residential care facility defined as such for
licensing purposes under State law, or if State law does not
employ the term nursing home, the equivalent term or terms as
determined by the Secretary of Health and Human Services,
pursuant to section 1908(e) of the Social Security Act (42
U.S.C. 1396g(e)).
(3) Senior.--The term ``senior'' means an individual who is
more than 55 years of age.
TITLE I--COMBATING CRIMES AGAINST SENIORS
SEC. 101. ENHANCED SENTENCING PENALTIES BASED ON AGE OF
VICTIM.
(a) Directive to the United States Sentencing Commission.--
Pursuant to its authority under section 994(p) of title 28,
United States Code, and in accordance with this section, the
United States Sentencing Commission (referred to in this
section as the ``Commission'') shall review and, if
appropriate, amend section 3A1.1(a) of the Federal sentencing
guidelines to include the age of a crime victim as one of the
criteria for determining whether the application of a
sentencing enhancement is appropriate.
(b) Requirements.--In carrying out this section, the
Commission shall--
(1) ensure that the Federal sentencing guidelines and the
policy statements of the Commission reflect the serious
economic and physical harms associated with criminal activity
targeted at seniors due to their particular vulnerability;
(2) consider providing increased penalties for persons
convicted of offenses in which the victim was a senior in
appropriate circumstances;
(3) consult with individuals or groups representing
seniors, law enforcement agencies, victims organizations, and
the Federal judiciary as part of the review described in
subsection (a);
(4) ensure reasonable consistency with other Federal
sentencing guidelines and directives;
(5) account for any aggravating or mitigating circumstances
that may justify exceptions, including circumstances for
which the Federal sentencing guidelines provide sentencing
enhancements;
(6) make any necessary conforming changes to the Federal
sentencing guidelines; and
(7) ensure that the Federal sentencing guidelines
adequately meet the purposes of sentencing set forth in
section 3553(a)(2) of title 18, United States Code.
[[Page S3312]]
(c) Report.--Not later than December 31, 2002, the
Commission shall submit to Congress a report on issues
relating to the age of crime victims, which shall include--
(1) an explanation of any changes to sentencing policy made
by the Commission under this section; and
(2) any recommendations of the Commission for retention or
modification of penalty levels, including statutory penalty
levels, for offenses involving seniors.
SEC. 102. STUDY AND REPORT ON HEALTH CARE FRAUD SENTENCES.
(a) Directive to the United States Sentencing Commission.--
Pursuant to its authority under section 994(p) of title 28,
United States Code, and in accordance with this section, the
United States Sentencing Commission (referred to in this
section as the ``Commission'') shall review and, if
appropriate, amend the Federal sentencing guidelines and the
policy statements of the Commission with respect to persons
convicted of offenses involving fraud in connection with a
health care benefit program (as defined in section 24(b) of
title 18, United States Code).
(b) Requirements.--In carrying out this section, the
Commission shall--
(1) ensure that the Federal sentencing guidelines and the
policy statements of the Commission reflect the serious harms
associated with health care fraud and the need for aggressive
and appropriate law enforcement action to prevent such fraud;
(2) consider providing increased penalties for persons
convicted of health care fraud in appropriate circumstances;
(3) consult with individuals or groups representing victims
of health care fraud, law enforcement agencies, the health
care industry, and the Federal judiciary as part of the
review described in subsection (a);
(4) ensure reasonable consistency with other Federal
sentencing guidelines and directives;
(5) account for any aggravating or mitigating circumstances
that might justify exceptions, including circumstances for
which the Federal sentencing guidelines provide sentencing
enhancements;
(6) make any necessary conforming changes to the Federal
sentencing guidelines; and
(7) ensure that the Federal sentencing guidelines
adequately meet the purposes of sentencing as set forth in
section 3553(a)(2) of title 18, United States Code.
(c) Report.--Not later than December 31, 2002, the
Commission shall submit to Congress a report on issues
relating to offenses described in subsection (a), which shall
include--
(1) an explanation of any changes to sentencing policy made
by the Commission under this section; and
(2) any recommendations of the Commission for retention or
modification of penalty levels, including statutory penalty
levels, for those offenses.
SEC. 103. INCREASED PENALTIES FOR FRAUD RESULTING IN SERIOUS
INJURY OR DEATH.
Sections 1341 and 1343 of title 18, United States Code, are
each amended by inserting before the last sentence the
following: ``If the violation results in serious bodily
injury (as defined in section 1365), such person shall be
fined under this title, imprisoned not more than 20 years, or
both, and if the violation results in death, such person
shall be fined under this title, imprisoned for any term of
years or life, or both.''.
SEC. 104. SAFEGUARDING PENSION PLANS FROM FRAUD AND THEFT.
(a) In General.--Chapter 63 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 1348. Fraud in relation to retirement arrangements
``(a) Definition.--
``(1) Retirement arrangement.--In this section, the term
`retirement arrangement' means--
``(A) any employee pension benefit plan subject to any
provision of title I of the Employee Retirement Income
Security Act of 1974;
``(B) any qualified retirement plan within the meaning of
section 4974(c) of the Internal Revenue Code of 1986;
``(C) any medical savings account described in section 220
of the Internal Revenue Code of 1986; or
``(D) a fund established within the Thrift Savings Fund by
the Federal Retirement Thrift Investment Board pursuant to
subchapter III of chapter 84 of title 5.
``(2) Certain arrangements included.--The term `retirement
arrangement' shall include any arrangement that has been
represented to be an arrangement described in any
subparagraph of paragraph (1) (whether or not so described).
``(3) Exception for governmental plan.--Except as provided
in paragraph (1)(D), the term `retirement arrangement' shall
not include any governmental plan (as defined in section
3(32) of title I of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1002(32))).
``(b) Prohibition and Penalties.--Whoever executes, or
attempts to execute, a scheme or artifice--
``(1) to defraud any retirement arrangement or other person
in connection with the establishment or maintenance of a
retirement arrangement; or
``(2) to obtain, by means of false or fraudulent pretenses,
representations, or promises, any of the money or property
owned by, or under the custody or control of, any retirement
arrangement or other person in connection with the
establishment or maintenance of a retirement arrangement;
shall be fined under this title, imprisoned not more than 10
years, or both.
``(c) Enforcement.--
``(1) In general.--Subject to paragraph (2), the Attorney
General may investigate any violation of, and otherwise
enforce, this section.
``(2) Effect on other authority.--Nothing in this
subsection may be construed to preclude the Secretary of
Labor or the head of any other appropriate Federal agency
from investigating a violation of this section in relation to
a retirement arrangement subject to title I of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1001 et
seq.) or any other provision of Federal law.''.
(b) Technical Amendment.--Section 24(a)(1) of title 18,
United States Code, is amended by inserting ``1348,'' after
``1347,''.
(c) Conforming Amendment.--The analysis for chapter 63 of
title 18, United States Code, is amended by adding at the end
the following:
``1348. Fraud in relation to retirement arrangements.''.
SEC. 105. ADDITIONAL CIVIL PENALTIES FOR DEFRAUDING PENSION
PLANS.
(a) In General.--
(1) Action by attorney general.--Except as provided in
subsection (b)--
(A) the Attorney General may bring a civil action in the
appropriate district court of the United States against any
person who engages in conduct constituting an offense under
section 1348 of title 18, United States Code, or conspiracy
to violate such section 1348; and
(B) upon proof of such conduct by a preponderance of the
evidence, such person shall be subject to a civil penalty in
an amount equal to the greatest of--
(i) the amount of pecuniary gain to that person;
(ii) the amount of pecuniary loss sustained by the victim;
or
(iii) not more than--
(I) $50,000 for each such violation in the case of an
individual; or
(II) $100,000 for each such violation in the case of a
person other than an individual.
(2) No effect on other remedies.--The imposition of a civil
penalty under this subsection does not preclude any other
statutory, common law, or administrative remedy available by
law to the United States or any other person.
(b) Exception.--No civil penalty may be imposed pursuant to
subsection (a) with respect to conduct involving a retirement
arrangement that--
(1) is an employee pension benefit plan subject to title I
of the Employee Retirement Income Security Act of 1974; and
(2) for which the civil penalties may be imposed under
section 502 of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1132).
(c) Determination of Penalty Amount.--In determining the
amount of the penalty under subsection (a), the district
court may consider the effect of the penalty on the violator
or other person's ability to--
(1) restore all losses to the victims; or
(2) provide other relief ordered in another civil or
criminal prosecution related to such conduct, including any
penalty or tax imposed on the violator or other person
pursuant to the Internal Revenue Code of 1986.
SEC. 106. PUNISHING BRIBERY AND GRAFT IN CONNECTION WITH
EMPLOYEE BENEFIT PLANS.
(a) In General.--Section 1954 of title 18, United States
Code, is amended to read as follows:
``Sec. 1954. Bribery and graft in connection with employee
benefit plans
``(a) Definitions.--In this section--
``(1) the term `employee benefit plan' means any employee
welfare benefit plan or employee pension benefit plan subject
to any provision of title I of the Employee Retirement Income
Security Act of 1974;
``(2) the terms `employee organization', `administrator',
and `employee benefit plan sponsor' mean any employee
organization, administrator, or plan sponsor, as defined in
title I of the Employment Retirement Income Security Act of
1974; and
``(3) the term `applicable person' means--
``(A) an administrator, officer, trustee, custodian,
counsel, agent, or employee of any employee benefit plan;
``(B) an officer, counsel, agent, or employee of an
employer or an employer any of whose employees are covered by
such plan;
``(C) an officer, counsel, agent, or employee of an
employee organization any of whose members are covered by
such plan;
``(D) a person who, or an officer, counsel, agent, or
employee of an organization that, provides benefit plan
services to such plan; or
``(E) a person with actual or apparent influence or
decisionmaking authority in regard to such plan.
``(b) Bribery and Graft.--Whoever--
``(1) being an applicable person, receives or agrees to
receive or solicits, any fee, kickback, commission, gift,
loan, money, or thing of value, personally or for any other
person, because of or with the intent to be corruptly
influenced with respect to any action, decision, or duty of
that applicable person relating to any question or matter
concerning an employee benefit plan;
``(2) directly or indirectly, gives or offers, or promises
to give or offer, any fee, kickback, commission, gift, loan,
money, or
[[Page S3313]]
thing of value, to any applicable person, because of or with
the intent to be corruptly influenced with respect to any
action, decision, or duty of that applicable person relating
to any question or matter concerning an employee benefit
plan; or
``(3) attempts to give, accept, or receive any thing of
value with the intent to be corruptly influenced in violation
of this section;
shall be fined under this title, imprisoned not more than 5
years, or both.
``(c) Exceptions.--Nothing in this section may be construed
to apply to any--
``(1) payment to, or acceptance by, any person of bona fide
salary, compensation, or other payments made for goods or
facilities actually furnished or for services actually
performed in the regular course of his duties as an
applicable person; or
``(2) payment to, or acceptance in good faith by, any
employee benefit plan sponsor, or person acting on behalf of
the sponsor, of anything of value relating to the decision or
action of the sponsor to establish, terminate, or modify the
governing instruments of an employee benefit plan in a manner
that does not violate--
``(A) title I of the Employee Retirement Income Security
Act of 1974;
``(B) any regulation or order promulgated under title I of
the Employee Retirement Income Security Act of 1974; or
``(C) any other provision of law governing the plan.''.
(b) Conforming Amendment.--The analysis for chapter 95 of
title 18, United States Code, is amended by striking the item
relating to section 1954 and inserting the following:
``1954. Bribery and graft in connection with employee benefit plans.''.
TITLE II--PREVENTING TELEMARKETING FRAUD
SEC. 201. CENTRALIZED COMPLAINT AND CONSUMER EDUCATION
SERVICE FOR VICTIMS OF TELEMARKETING FRAUD.
(a) Centralized Service.--
(1) Requirement.--The Federal Trade Commission shall, after
consultation with the Attorney General, establish procedures
to--
(A) log and acknowledge the receipt of complaints by
individuals who certify that they have a reasonable belief
that they have been the victim of fraud in connection with
the conduct of telemarketing (as that term is defined in
section 2325 of title 18, United States Code, as amended by
section 202(a) of this Act);
(B) provide to individuals described in subparagraph (A),
and to any other persons, information on telemarketing fraud,
including--
(i) general information on telemarketing fraud, including
descriptions of the most common telemarketing fraud schemes;
(ii) information on means of referring complaints on
telemarketing fraud to appropriate law enforcement agencies,
including the Director of the Federal Bureau of
Investigation, the attorneys general of the States, and the
national toll-free telephone number on telemarketing fraud
established by the Attorney General; and
(iii) information, if available, on the number of
complaints of telemarketing fraud against particular
companies and any record of convictions for telemarketing
fraud by particular companies for which a specific request
has been made; and
(C) refer complaints described in subparagraph (A) to
appropriate entities, including State consumer protection
agencies or entities and appropriate law enforcement
agencies, for potential law enforcement action.
(2) Central location.--The service under the procedures
under paragraph (1) shall be provided at and through a single
site selected by the Commission for that purpose.
(3) Commencement.--The Federal Trade Commission shall
commence carrying out the service not later than 1 year after
the date of enactment of this Act.
(b) Creation of Fraud Conviction Database.--
(1) Establishment.--The Attorney General shall establish
and maintain a computer database containing information on
the corporations and companies convicted of offenses for
telemarketing fraud under Federal and State law.
(2) Database.--The database established under paragraph (1)
shall include a description of the type and method of the
fraud scheme for which each corporation or company covered by
the database was convicted.
(3) Use of database.--The Attorney General shall make
information in the database available to the Federal Trade
Commission for purposes of providing information as part of
the service under subsection (a).
(c) Authorization of Appropriations.--There is authorized
to be appropriated such sums as may be necessary to carry out
this section.
SEC. 202. BLOCKING OF TELEMARKETING SCAMS.
(a) Expansion of Scope of Telemarketing Fraud Subject to
Enhanced Criminal Penalties.--Section 2325(1) of title 18,
United States Code, is amended by striking ``telephone
calls'' and inserting ``wire communications utilizing a
telephone service''.
(b) Blocking or Termination of Telephone Service Associated
With Telemarketing Fraud.--
(1) In general.--Chapter 113A of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 2328. Blocking or termination of telephone service
``(a) Definitions.--In this section:
``(1) Reasonable notice to the subscriber.--
``(A) In general.--The term `reasonable notice to the
subscriber', in the case of a subscriber of a common carrier,
means any information necessary to provide notice to the
subscriber that--
``(i) the wire communications facilities furnished by the
common carrier may not be used for the purpose of
transmitting, receiving, forwarding, or delivering a wire
communication in interstate or foreign commerce for the
purpose of executing any scheme or artifice to defraud in
connection with the conduct of telemarketing; and
``(ii) such use constitutes sufficient grounds for the
immediate discontinuance or refusal of the leasing,
furnishing, or maintaining of the facilities to or for the
subscriber.
``(B) Included matter.--The term includes any tariff filed
by the common carrier with the Federal Communications
Commission that contains the information specified in
subparagraph (A).
``(2) Wire communication.--The term `wire communication'
has the same meaning given that term in section 2510(1).
``(3) Wire communications facility.--The term `wire
communications facility' means any facility (including
instrumentalities, personnel, and services) used by a common
carrier for purposes of the transmission, receipt,
forwarding, or delivery of wire communications.
``(b) Blocking or Terminating Telephone Service.--If a
common carrier subject to the jurisdiction of the Federal
Communications Commission is notified in writing by the
Attorney General, acting within the jurisdiction of the
Attorney General, that any wire communications facility
furnished by that common carrier is being used or will be
used by a subscriber for the purpose of transmitting or
receiving a wire communication in interstate or foreign
commerce for the purpose of executing any scheme or artifice
to defraud, or for obtaining money or property by means of
false or fraudulent pretenses, representations, or promises,
in connection with the conduct of telemarketing, the common
carrier shall discontinue or refuse the leasing, furnishing,
or maintaining of the facility to or for the subscriber after
reasonable notice to the subscriber.
``(c) Prohibition on Damages.--No damages, penalty, or
forfeiture, whether civil or criminal, shall be found or
imposed against any common carrier for any act done by the
common carrier in compliance with a notice received from the
Attorney General under this section.
``(d) Relief.--
``(1) In general.--Nothing in this section may be construed
to prejudice the right of any person affected thereby to
secure an appropriate determination, as otherwise provided by
law, in a Federal court, that--
``(A) the leasing, furnishing, or maintaining of a facility
should not be discontinued or refused under this section; or
``(B) the leasing, furnishing, or maintaining of a facility
that has been so discontinued or refused should be restored.
``(2) Supporting information.--In any action brought under
this subsection, the court may direct that the Attorney
General present evidence in support of the notice made under
subsection (b) to which such action relates.''.
(2) Conforming amendment.--The analysis for chapter 113A of
title 18, United States Code, is amended by adding at the end
the following:
``2328. Blocking or termination of telephone service.''.
TITLE III--PREVENTING HEALTH CARE FRAUD
SEC. 301. INJUNCTIVE AUTHORITY RELATING TO FALSE CLAIMS AND
ILLEGAL KICKBACK SCHEMES INVOLVING FEDERAL
HEALTH CARE PROGRAMS.
(a) In General.--Section 1345(a) of title 18, United States
Code, is amended--
(1) in paragraph (1)--
(A) in subparagraph (B), by striking ``, or'' and inserting
a semicolon;
(B) in subparagraph (C), by striking the period at the end
and inserting ``; or''; and
(C) by adding at the end the following:
``(D) committing or about to commit an offense under
section 1128B of the Social Security Act (42 U.S.C. 1320a-
7b),''; and
(2) in paragraph (2), by inserting ``a violation of
paragraph (1)(D), or'' before ``a banking''.
(b) Civil Actions.--
(1) In general.--Section 1128B of the Social Security Act
(42 U.S.C. 1320a-7b) is amended by adding at the end the
following:
``(g) Civil Actions.--
``(1) In general.--The Attorney General may bring an action
in the appropriate district court of the United States to
impose upon any person who carries out any activity in
violation of this section with respect to a Federal health
care program a civil penalty of not more than $50,000 for
each such violation, or damages of 3 times the total
remuneration offered, paid, solicited, or received, whichever
is greater.
``(2) Existence of violation.--A violation exists under
paragraph (1) if 1 or more purposes of the remuneration is
unlawful, and the damages shall be the full amount of such
remuneration.
``(3) Procedures.--An action under paragraph (1) shall be
governed by--
``(A) the procedures with regard to subpoenas, statutes of
limitations, standards of proof, and collateral estoppel set
forth in section 3731 of title 31, United States Code; and
[[Page S3314]]
``(B) the Federal Rules of Civil Procedure.
``(4) No effect on other remedies.--Nothing in this section
may be construed to affect the availability of any other
criminal or civil remedy.
``(h) Injunctive Relief.--The Attorney General may commence
a civil action in an appropriate district court of the United
States to enjoin a violation of this section, as provided in
section 1345 of title 18, United States Code.''.
(2) Conforming amendment.--The heading of section 1128B of
the Social Security Act (42 U.S.C. 1320a-7b) is amended by
inserting ``AND CIVIL'' after ``CRIMINAL''.
SEC. 302. AUTHORIZED INVESTIGATIVE DEMAND PROCEDURES.
Section 3486 of title 18, United States Code, is amended--
(1) in subsection (a), by inserting ``, or any allegation
of fraud or false claims (whether criminal or civil) in
connection with a Federal health care program (as defined in
section 1128B(f) of the Social Security Act (42 U.S.C. 1320a-
7b(f))),'' after ``Federal health care offense'' each place
it appears; and
(2) by adding at the end the following:
``(f) Privacy Protection.--
``(1) In general.--Except as provided in paragraph (2), any
record (including any book, paper, document, electronic
medium, or other object or tangible thing) produced pursuant
to a subpoena issued under this section that contains
personally identifiable health information may not be
disclosed to any person, except pursuant to a court order
under subsection (e)(1).
``(2) Exceptions.--A record described in paragraph (1) may
be disclosed--
``(A) to an attorney for the Government for use in the
performance of the official duty of the attorney (including
presentation to a Federal grand jury);
``(B) to government personnel (including personnel of a
State or subdivision of a State) as are determined to be
necessary by an attorney for the Government to assist an
attorney for the Government in the performance of the
official duty of that attorney to enforce Federal criminal
law;
``(C) as directed by a court preliminarily to, or in
connection with, a judicial proceeding;
``(D) as permitted by a court at the request of a defendant
in an administrative, civil, or criminal action brought by
the United States, upon a showing that grounds may exist for
a motion to exclude evidence obtained under this section; or
``(E) at the request of an attorney for the Government,
upon a showing that such matters may disclose a violation of
State criminal law, to an appropriate official of a State or
subdivision of a State for the purpose of enforcing such law.
``(3) Manner of court ordered disclosures.--
``(A) In general.--Except as provided in subparagraph (B),
if a court orders the disclosure of any record described in
paragraph (1), the disclosure--
``(i) shall be made in such manner, at such time, and under
such conditions as the court may direct; and
``(ii) shall be undertaken in a manner that preserves the
confidentiality and privacy of individuals who are the
subject of the record.
``(B) Exception.--If disclosure is required by the nature
of the proceedings, the attorney for the Government shall
request that the presiding judicial or administrative officer
enter an order limiting the disclosure of the record to the
maximum extent practicable, including redacting the
personally identifiable health information from publicly
disclosed or filed pleadings or records.
``(4) Destruction of records.--Any record described in
paragraph (1), and all copies of that record, in whatever
form (including electronic), shall be destroyed not later
than 90 days after the date on which the record is produced,
unless otherwise ordered by a court of competent
jurisdiction, upon a showing of good cause.
``(5) Effect of violation.--Any person who knowingly fails
to comply with this subsection may be punished as in contempt
of court.
``(g) Personally Identifiable Health Information Defined.--
In this section, the term `personally identifiable health
information' means any information, including genetic
information, demographic information, and tissue samples
collected from an individual, whether oral or recorded in any
form or medium, that--
``(1) relates to the past, present, or future physical or
mental health or condition of an individual, the provision of
health care to an individual, or the past, present, or future
payment for the provision of health care to an individual;
and
``(2) either--
``(A) identifies an individual; or
``(B) with respect to which there is a reasonable basis to
believe that the information can be used to identify an
individual.''.
SEC. 303. EXTENDING ANTIFRAUD SAFEGUARDS TO THE FEDERAL
EMPLOYEE HEALTH BENEFITS PROGRAM.
Section 1128B(f)(1) of the Social Security Act (42 U.S.C.
1320a-7b(f)(1)) is amended by striking ``(other than the
health insurance program under chapter 89 of title 5, United
States Code)''.
SEC. 304. GRAND JURY DISCLOSURE.
Section 3322 of title 18, United States Code, is amended--
(1) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(2) by inserting after subsection (b) the following:
``(c) Grand Jury Disclosure.--Subject to section 3486(f),
upon ex parte motion of an attorney for the Government
showing that a disclosure in accordance with that subsection
would be of assistance to enforce any provision of Federal
law, a court may direct the disclosure of any matter
occurring before a grand jury during an investigation of a
Federal health care offense (as defined in section 24(a) of
this title) to an attorney for the Government to use in any
investigation or civil proceeding relating to fraud or false
claims in connection with a Federal health care program (as
defined in section 1128B(f) of the Social Security Act (42
U.S.C. 1320a-7b(f))).''.
SEC. 305. INCREASING THE EFFECTIVENESS OF CIVIL INVESTIGATIVE
DEMANDS IN FALSE CLAIMS INVESTIGATIONS.
Section 3733 of title 31, United States Code, is amended--
(1) in subsection (a)(1), in the second sentence, by
inserting ``, except to the Deputy Attorney General or to an
Assistant Attorney General'' before the period at the end;
and
(2) in subsection (i)(2)(C), by adding at the end the
following: ``Disclosure of information to a person who brings
a civil action under section 3730, or the counsel of that
person, shall be allowed only upon application to a United
States district court showing that such disclosure would
assist the Department of Justice in carrying out its
statutory responsibilities.''.
TITLE IV--PROTECTING RESIDENTS OF NURSING HOMES
SEC. 401. SHORT TITLE.
This title may be cited as the ``Nursing Home Resident
Protection Act of 2002''.
SEC. 402. NURSING HOME RESIDENT PROTECTION.
(a) Protection of Residents in Nursing Homes and Other
Residential Health Care Facilities.--Chapter 63 of title 18,
United States Code, is amended by adding at the end the
following:
``Sec. 1349. Pattern of violations resulting in harm to
residents of nursing homes and related facilities
``(a) Definitions.--In this section:
``(1) Entity.--The term `entity' means--
``(A) any residential health care facility (including
facilities that do not exclusively provide residential health
care services);
``(B) any entity that manages a residential health care
facility; or
``(C) any entity that owns, directly or indirectly, a
controlling interest or a 50 percent or greater interest in 1
or more residential health care facilities including States,
localities, and political subdivisions thereof.
``(2) Federal health care program.--The term `Federal
health care program' has the same meaning given that term in
section 1128B(f) of the Social Security Act.
``(3) Pattern of violations.--The term `pattern of
violations' means multiple violations of a single Federal or
State law, regulation, or rule or single violations of
multiple Federal or State laws, regulations, or rules, that
are widespread, systemic, repeated, similar in nature, or
result from a policy or practice.
``(4) Residential health care facility.--The term
`residential health care facility' means any facility
(including any facility that does not exclusively provide
residential health care services), including skilled and
unskilled nursing facilities and mental health and mental
retardation facilities, that--
``(A) receives Federal funds, directly from the Federal
Government or indirectly from a third party on contract with
or receiving a grant or other monies from the Federal
Government, to provide health care; or
``(B) provides health care services in a residential
setting and, in any calendar year in which a violation
occurs, is the recipient of benefits or payments in excess of
$10,000 from a Federal health care program.
``(5) State.--The term `State' means each of the several
States of the United States, the District of Columbia, and
any commonwealth, territory, or possession of the United
States.
``(b) Prohibition and Penalties.--Whoever knowingly and
willfully engages in a pattern of violations that affects the
health, safety, or care of individuals residing in a
residential health care facility or facilities, and that
results in significant physical or mental harm to 1 or more
of such residents, shall be punished as provided in section
1347, except that any organization shall be fined not more
than $2,000,000 per residential health care facility.
``(c) Civil Provisions.--
``(1) In general.--The Attorney General may bring an action
in a district court of the United States to impose on any
individual or entity that engages in a pattern of violations
that affects the health, safety, or care of individuals
residing in a residential health care facility, and that
results in physical or mental harm to 1 or more such
residents--
``(A) a civil penalty; or
``(B) in the case of--
``(i) an individual (other than an owner, operator,
officer, or manager of such a residential health care
facility), not more than $10,000;
``(ii) an individual who is an owner, operator, officer, or
manager of such a residential health care facility, not more
than $100,000 for each separate facility involved in the
pattern of violations under this section;
``(iii) a residential health care facility, not more than
$1,000,000 for each pattern of violations; or
[[Page S3315]]
``(iv) an entity, not more than $1,000,000 for each
separate residential health care facility involved in the
pattern of violations owned or managed by that entity.
``(2) Other appropriate relief.--If the Attorney General
has reason to believe that an individual or entity is
engaging in or is about to engage in a pattern of violations
that would affect the health, safety, or care of individuals
residing in a residential health care facility, and that
results in or has the potential to result in physical or
mental harm to 1 or more such residents, the Attorney General
may petition an appropriate district court of the United
States for appropriate equitable and declaratory relief to
eliminate the pattern of violations.
``(3) Procedures.--In any action under this subsection--
``(A) a subpoena requiring the attendance of a witness at a
trial or hearing may be served at any place in the United
States;
``(B) the action may not be brought more than 6 years after
the date on which the violation occurred;
``(C) the United States shall be required to prove each
charge by a preponderance of the evidence;
``(D) the civil investigative demand procedures set forth
in the Antitrust Civil Process Act (15 U.S.C. 1311 et seq.)
and regulations promulgated pursuant to that Act shall apply
to any investigation; and
``(E) the filing or resolution of a matter shall not
preclude any other remedy that is available to the United
States or any other person.
``(d) Prohibition Against Retaliation.--Any person who is
the subject of retaliation, either directly or indirectly,
for reporting a condition that may constitute grounds for
relief under this section may bring an action in an
appropriate district court of the United States for damages,
attorneys' fees, and other relief.''.
(b) Authorized Investigative Demand Procedures.--Section
3486(a)(1) of title 18, United States Code, as amended by
section 402 of this Act, is amended by inserting ``, act or
activity involving section 1349 of this title'' after
``Federal health care offense''.
(c) Conforming Amendment.--The analysis for chapter 63 of
title 18, United States Code, is amended by adding at the end
the following:
``1349. Pattern of violations resulting in harm to residents of nursing
homes and related facilities.''.
TITLE V--PROTECTING THE RIGHTS OF ELDERLY CRIME VICTIMS
SEC. 501. USE OF FORFEITED FUNDS TO PAY RESTITUTION TO CRIME
VICTIMS AND REGULATORY AGENCIES.
Section 981(e) of title 18, United States Code, is
amended--
(1) in each of paragraphs (3), (4), and (5), by striking
``in the case of property referred to in subsection
(a)(1)(C)'' and inserting ``in the case of property forfeited
in connection with an offense resulting in a pecuniary loss
to a financial institution or regulatory agency,''; and
(2) in paragraph (7), by striking ``In the case of property
referred to in subsection (a)(1)(D)'' and inserting ``in the
case of property forfeited in connection with an offense
relating to the sale of assets acquired or held by any
Federal financial institution or regulatory agency, or person
appointed by such agency, as receiver, conservator, or
liquidating agent for a financial institution''.
SEC. 502. VICTIM RESTITUTION.
Section 413 of the Controlled Substances Act (21 U.S.C.
853) is amended by adding at the end the following:
``(r) Victim Restitution.--
``(1) Satisfaction of order of restitution.--
``(A) In general.--Except as provided in subparagraph (B),
a defendant may not use property subject to forfeiture under
this section to satisfy an order of restitution.
``(B) Exception.--If there are 1 or more identifiable
victims entitled to restitution from a defendant, and the
defendant has no assets other than the property subject to
forfeiture with which to pay restitution to the victim or
victims, the attorney for the Government may move to dismiss
a forfeiture allegation against the defendant before entry of
a judgment of forfeiture in order to allow the property to be
used by the defendant to pay restitution in whatever manner
the court determines to be appropriate if the court grants
the motion. In granting a motion under this subparagraph, the
court shall include a provision ensuring that costs
associated with the identification, seizure, management, and
disposition of the property are recovered by the United
States.
``(2) Restoration of forfeited property.--
``(A) In general.--If an order of forfeiture is entered
pursuant to this section and the defendant has no assets
other than the forfeited property to pay restitution to 1 or
more identifiable victims who are entitled to restitution,
the Government shall restore the forfeited property to the
victims pursuant to subsection (i)(1) once the ancillary
proceeding under subsection (n) has been completed and the
costs of the forfeiture action have been deducted.
``(B) Distribution of property.--On a motion of the
attorney for the Government, the court may enter any order
necessary to facilitate the distribution of any property
restored under this paragraph.
``(3) Victim defined.--In this subsection, the term
`victim'--
``(A) means a person other than a person with a legal
right, title, or interest in the forfeited property
sufficient to satisfy the standing requirements of subsection
(n)(2) who may be entitled to restitution from the forfeited
funds pursuant to section 9.8 of part 9 of title 28, Code of
Federal Regulations (or any successor to that regulation);
and
``(B) includes any person who is the victim of the offense
giving rise to the forfeiture, or of any offense that was
part of the same scheme, conspiracy, or pattern of criminal
activity, including, in the case of a money laundering
offense, any offense constituting the underlying specified
unlawful activity.''.
SEC. 503. BANKRUPTCY PROCEEDINGS NOT USED TO SHIELD ILLEGAL
GAINS FROM FALSE CLAIMS.
(a) Certain Actions Not Stayed by Bankruptcy Proceedings.--
(1) In general.--Notwithstanding any other provision of
law, the commencement or continuation of an action under
section 3729 of title 31, United States Code, does not
operate as a stay under section 105(a) or 362(a)(1) of title
11, United States Code.
(2) Conforming amendment.--Section 362(b) of title 11,
United States Code, is amended--
(A) in paragraph (17), by striking ``or'' at the end;
(B) in paragraph (18), by striking the period at the end
and inserting ``; or''; and
(C) by adding at the end the following:
``(19) the commencement or continuation of an action under
section 3729 of title 31.''.
(b) Certain Debts Not Dischargeable in Bankruptcy.--Section
523 of title 11, United States Code, is amended by adding at
the end the following:
``(f) A discharge under section 727, 1141, 1228(a),
1228(b), or 1328(b) does not discharge a debtor from a debt
owed for violating section 3729 of title 31.''.
(c) Repayment of Certain Debts Considered Final.--
(1) In general.--Chapter 1 of title 11, United States Code,
is amended by adding at the end the following:
``Sec. 111. False claims
``No transfer on account of a debt owed to the United
States for violating section 3729 of title 31, or under a
compromise order or other agreement resolving such a debt may
be avoided under section 544, 545, 547, 548, 549, 553(b), or
742(a).''.
(2) Conforming amendment.--The analysis for chapter 1 of
title 11, United States Code, is amended by adding at the end
the following:
``111. False claims.''.
SEC. 504. FORFEITURE FOR RETIREMENT OFFENSES.
(a) Criminal Forfeiture.--Section 982(a) of title 18,
United States Code, is amended by adding at the end the
following:
``(9) Criminal Forfeiture.--
``(A) In general.--The court, in imposing a sentence on a
person convicted of a retirement offense, shall order the
person to forfeit property, real or personal, that
constitutes or that is derived, directly or indirectly, from
proceeds traceable to the commission of the offense.
``(B) Retirement offense defined.--In this paragraph, if a
violation, conspiracy, or solicitation relates to a
retirement arrangement (as defined in section 1348 of title
18, United States Code), the term `retirement offense' means
a violation of--
``(i) section 664, 1001, 1027, 1341, 1343, 1348, 1951,
1952, or 1954 of title 18, United States Code; or
``(ii) section 411, 501, or 511 of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1111, 1131, 1141).''.
(b) Civil Forfeiture.--Section 981(a)(1) of title 18,
United States Code, is amended by adding at the end the
following:
``(H) Any property, real or personal, that constitutes or
is derived, directly or indirectly, from proceeds traceable
to the commission of, criminal conspiracy to violate, or
solicitation to commit a crime of violence involving, a
retirement offense (as defined in section 982(a)(9)(B)).''.
Mr. TORRICELLI. Madam President, I am pleased to join Senators Leahy
and Daschle today as an original cosponsor of the Seniors Safety Act,
legislation that has been referred to as ``a new safety net for
seniors.'' It is that, but it is also much more. Indeed, this bill is a
potent weapon designed to track down and punish those criminals who
would prey on the trust and good will of America's seniors. This bill
puts crooks on notice that crimes against seniors, from violent
assaults in the streets, to abuses in nursing homes, to frauds
perpetrated over the telephone lines, will not be tolerated.
Seniors represent the most rapidly growing sector of our population.
In the next 50 years, the number of Americans over the age of 65 will
more than double. Unless we take action now, the frequency and
sophistication of crimes against seniors will likewise skyrocket. The
Seniors Safety Act was developed to address, head-on, the crimes which
most directly affect the senior community, including telemarketing
fraud, and abuse and fraud in the health care and nursing home
industries. It increases penalties and provides enhancements to the
sentencing guidelines for criminals who target seniors. It protects
seniors against the
[[Page S3316]]
illegal depletion of precious pension and employee benefit plan funds
through fraud, graft, and bribery, and helps victimized seniors obtain
restitution. And finally, this bill authorizes the Attorney General to
study the problem of crime against seniors, and design new techniques
to fight it.
Criminal enterprises that engage in telemarketing fraud are some of
the most insidious predators out there. Americans are fleeced out of
over $40 billion dollars every year, and the effect on seniors is
grossly disproportionate. According to the American Association of
Retired Persons, ``The repeated victimization of the elderly is the
cornerstone of illegal telemarketing.'' A study has found that 56
percent of the names on the target lists of fraudulent telemarketers
are those of Americans aged 50 or older. Of added concern is the fact
that many of the perpetrators have migrated out of the United States
for fear of prosecution, and continue to conduct their illegal
activities from abroad.
In one heartbreaking story, a recently-widowed New Jersey woman was
bilked out of $200,000 by a deceitful telemarketing firm from Canada,
who claimed that the woman had won a $150,000 sweepstakes, the prize
could be hers, for a fee. A series of these calls followed, convincing
this poor woman, already in a fragile mind-state after her husband's
death, to send more and more money for what they claimed was an
increasingly large prize, which, of course, never materialized.
Our bill authorizes the Attorney General to effectively put these
vultures, even the international criminals, out of business by blocking
or terminating their U.S. telephone service. In addition, it authorizes
the FTC to create a consumer clearinghouse which would provide seniors,
and others who might have questions about the legitimacy of a telephone
sales pitch, with information regarding prior complaints about a
particular telemarketing company or prior fraud convictions.
Furthermore, this clearinghouse would give seniors who may have been
cheated an open channel to the appropriate law enforcement authorities.
In 1997, older Americans were victimized by violent crime over
680,000 times. The crimes against them range from simple assault, to
armed robbery, to rape. While national crime rates in general are
falling, seniors have not shared in the benefits of that drop.
This Act singles out criminals who prey on the senior population and
penalizes them for the physical and economic harm they cause. In
addition, we intend to place this growing problem in the spotlight, and
urge Congress and Federal and State law enforcement agencies to
continue to develop solutions. To this end, we have authorized a
comprehensive examination of crimes against seniors, and the inclusion
of data on seniors in the National Crime Victims Survey.
Seniors across the country have worked their entire lives, secure in
the belief that their pensions and health benefits would be there to
provide for them in their retirement years. Unfortunately, far too
often, seniors wake up one morning to find that their hard-earned
benefits have been stolen. In 1997 alone, $90 million in losses to
pension funds were uncovered. Older Americans who depend on that money
to live are left out in the cold, while criminals enjoy the fruits of a
lifetime of our seniors' labor. The Seniors Safety Act gives Federal
prosecutors another powerful weapon to punish pension fund thieves. The
Act creates new civil and criminal penalties for defrauding pension of
benefit plans, or obtaining money from them under false or fraudulent
pretenses.
The defrauding of Medicare, Medicaid, and private health insurers has
become big business for criminals who prey on the elderly. According to
a National Institutes of Health study, losses from fraud and abuse may
exceed $100 billion per year. Overbilling and false claims filing have
become rampant as automated claims processing is more prevalent.
Similarly, the Department of Justice has noted numerous cases where
unscrupulous nursing home operators have simply pocketed Medicare
funds, rather than providing adequate care for their residents. In one
horrendous case, five diabetic patient died from malnutrition and lack
of medical care. In another, a patient was burned to death when a mute
patient was placed by untrained staff in a tub of scalding water. These
terrible abuses would never have occurred had the facilities spent the
Federal funds they received to implement proper health and safety
procedures. This bill goes after fraud and abuse by providing resources
and tools for authorities to investigate and prosecute offenses in
civil and criminal courts, and enhances the ability of the Justice
Department to use evidence brought in by qui tam, whistleblower,
plaintiffs.
Together these provisions bring much-needed protections to our
seniors. It sends a message to the cowardly perpetrators of fraud and
other crimes against older Americans, that their actions will be
fiercely prosecuted, whether they be here or abroad. And it clearly
states that we refuse to allow seniors to be victimized by this most
heinous form of predation.
______
By Mr. DORGAN (for himself, Mr. Jeffords, Ms. Collins, Ms.
Stabenow, Ms. Snowe, Mr. Wellstone, Mr. Levin, and Mr. Dayton):
S. 2244. A bill to permit commercial importation of prescription
drugs from Canada, and for other purposes; to the Committee on Health,
Education, Labor, and Pensions.
Mr. DORGAN. Madam President, today I am introducing the Prescription
Drug Price Parity for Americans Act, along with my colleagues Senators
Jeffords, Collins, Stabenow, Snowe, Wellstone, Levin, and Dayton. I
intend to come to the floor later in the week to speak about this
legislation at greater length, but I wanted to go ahead and introduce
the bill today.
This bill addresses a growing problem with prescription drug spending
in our country. Spending on prescription drugs rose 17 percent in 2001,
following on the heels of a nearly 19 percent increase in 2000 and a 16
percent increase in 1999. Unfortunately, many Americans, especially
senior citizens and the uninsured, cannot afford the substantially
higher prices that they are being charged for their medicines. A
prescription drug that costs $1 in the United States costs only 62
cents in Canada, and that is just not fair.
The bill I am introducing today would address this unfair pricing by
injecting some price competition into the prescription drug
marketplace. This legislation builds on the Medicine Equity and Drug
Safety, MEDS, Act, which the Senate passed overwhelmingly in 2000 and
was enacted into law. Like the MEDS Act, this bill would allow U.S.-
licensed pharmacists and drug wholesalers to import FDA-approved
medicines, but unlike the 2000 law, this year's bill will be limited to
approved drugs coming only from Canada. Canada has a drug approval and
distribution system similarly strong to the U.S. system. I am very
confident that this bill can be implemented immediately while ensuring
the safety of our Nation's drug supply and significant cost savings for
American consumers.
Again, I look forward to coming back to the floor to describe this
legislation at length at some later opportunity.
I ask unanimous consent that the text of this bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2244
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 ``Prescription Drug Price
Parity for Americans Act''.
SEC. 2. IMPORTATION OF PRESCRIPTION DRUGS.
(a) In General.--Chapter VIII of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 381 et seq.) is amended by
striking section 804 and inserting the following:
``SEC. 804. IMPORTATION OF PRESCRIPTION DRUGS.
``(a) Definitions.--In this section:
``(1) Importer.--The term `importer' means a pharmacist or
wholesaler.
``(2) Pharmacist.--The term `pharmacist' means a person
licensed by a State to practice pharmacy, including the
dispensing and selling of prescription drugs.
``(3) Prescription drug.--The term `prescription drug'
means a drug subject to section 503(b), other than--
``(A) a controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802));
``(B) a biological product (as defined in section 351 of
the Public Health Service Act (42 U.S.C. 262));
``(C) an infused drug (including a peritoneal dialysis
solution);
[[Page S3317]]
``(D) an intravenously injected drug; or
``(E) a drug that is inhaled during surgery.
``(4) Qualifying laboratory.--The term `qualifying
laboratory' means a laboratory in the United States that has
been approved by the Secretary for the purposes of this
section.
``(5) Wholesaler.--
``(A) In general.--The term `wholesaler' means a person
licensed as a wholesaler or distributor of prescription drugs
in the United States under section 503(e)(2)(A).
``(B) Exclusion.--The term `wholesaler' does not include a
person authorized to import drugs under section 801(d)(1).
``(b) Regulations.--The Secretary, after consultation with
the United States Trade Representative and the Commissioner
of Customs, shall promulgate regulations permitting
pharmacists and wholesalers to import prescription drugs from
Canada into the United States.
``(c) Limitation.--The regulations under subsection (b)
shall--
``(1) require that safeguards be in place to ensure that
each prescription drug imported under the regulations
complies with section 505 (including with respect to being
safe and effective for the intended use of the prescription
drug), with sections 501 and 502, and with other applicable
requirements of this Act;
``(2) require that an importer of a prescription drug under
the regulations comply with subsections (d)(1) and (e); and
``(3) contain any additional provisions determined by the
Secretary to be appropriate as a safeguard to protect the
public health or as a means to facilitate the importation of
prescription drugs.
``(d) Information and Records.--
``(1) In general.--The regulations under subsection (b)
shall require an importer of a prescription drug under
subsection (b) to submit to the Secretary the following
information and documentation:
``(A) The name and quantity of the active ingredient of the
prescription drug.
``(B) A description of the dosage form of the prescription
drug.
``(C) The date on which the prescription drug is shipped.
``(D) The quantity of the prescription drug that is
shipped.
``(E) The point of origin and destination of the
prescription drug.
``(F) The price paid by the importer for the prescription
drug.
``(G) Documentation from the foreign seller specifying--
``(i) the original source of the prescription drug; and
``(ii) the quantity of each lot of the prescription drug
originally received by the seller from that source.
``(H) The lot or control number assigned to the
prescription drug by the manufacturer of the prescription
drug.
``(I) The name, address, telephone number, and professional
license number (if any) of the importer.
``(J)(i) In the case of a prescription drug that is shipped
directly from the first foreign recipient of the prescription
drug from the manufacturer:
``(I) Documentation demonstrating that the prescription
drug was received by the recipient from the manufacturer and
subsequently shipped by the first foreign recipient to the
importer.
``(II) Documentation of the quantity of each lot of the
prescription drug received by the first foreign recipient
demonstrating that the quantity being imported into the
United States is not more than the quantity that was received
by the first foreign recipient.
``(III)(aa) In the case of an initial imported shipment,
documentation demonstrating that each batch of the
prescription drug in the shipment was statistically sampled
and tested for authenticity and degradation.
``(bb) In the case of any subsequent shipment,
documentation demonstrating that a statistically valid sample
of the shipment was tested for authenticity and degradation.
``(ii) In the case of a prescription drug that is not
shipped directly from the first foreign recipient of the
prescription drug from the manufacturer, documentation
demonstrating that each batch in each shipment offered for
importation into the United States was statistically sampled
and tested for authenticity and degradation.
``(K) Certification from the importer or manufacturer of
the prescription drug that the prescription drug--
``(i) is approved for marketing in the United States; and
``(ii) meets all labeling requirements under this Act.
``(L) Laboratory records, including complete data derived
from all tests necessary to ensure that the prescription drug
is in compliance with established specifications and
standards.
``(M) Documentation demonstrating that the testing required
by subparagraphs (J) and (L) was conducted at a qualifying
laboratory.
``(N) Any other information that the Secretary determines
is necessary to ensure the protection of the public health.
``(2) Maintenance by the secretary.--The Secretary shall
maintain information and documentation submitted under
paragraph (1) for such period of time as the Secretary
determines to be necessary.
``(e) Testing.--The regulations under subsection (b) shall
require--
``(1) that testing described in subparagraphs (J) and (L)
of subsection (d)(1) be conducted by the importer or by the
manufacturer of the prescription drug at a qualified
laboratory;
``(2) if the tests are conducted by the importer--
``(A) that information needed to--
``(i) authenticate the prescription drug being tested; and
``(ii) confirm that the labeling of the prescription drug
complies with labeling requirements under this Act;
be supplied by the manufacturer of the prescription drug to
the pharmacist or wholesaler; and
``(B) that the information supplied under subparagraph (A)
be kept in strict confidence and used only for purposes of
testing or otherwise complying with this Act; and
``(3) may include such additional provisions as the
Secretary determines to be appropriate to provide for the
protection of trade secrets and commercial or financial
information that is privileged or confidential.
``(f) Registration of Foreign Sellers.--Any establishment
within Canada engaged in the distribution of a prescription
drug that is imported or offered for importation into the
United States shall register with the Secretary the name and
place of business of the establishment.
``(g) Suspension of Importation.--The Secretary shall
require that importations of a specific prescription drug or
importations by a specific importer under subsection (b) be
immediately suspended on discovery of a pattern of
importation of the prescription drugs or by the importer that
is counterfeit or in violation of any requirement under this
section, until an investigation is completed and the
Secretary determines that the public is adequately protected
from counterfeit and violative prescription drugs being
imported under subsection (b).
``(h) Approved Labeling.--The manufacturer of a
prescription drug shall provide an importer written
authorization for the importer to use, at no cost, the
approved labeling for the prescription drug.
``(i) Prohibition of Discrimination.--
``(1) In general.--It shall be unlawful for a manufacturer
of a prescription drug to discriminate against, or cause any
other person to discriminate against, a pharmacist or
wholesaler that purchases or offers to purchase a
prescription drug from the manufacturer or from any person
that distributes a prescription drug manufactured by the drug
manufacturer.
``(2) Discrimination.--For the purposes of paragraph (1), a
manufacturer of a prescription drug shall be considered to
discriminate against a pharmacist or wholesaler if the
manufacturer enters into a contract for sale of a
prescription drug, places a limit on supply, or employs any
other measure, that has the effect of--
``(A) providing pharmacists or wholesalers access to
prescription drugs on terms or conditions that are less
favorable than the terms or conditions provided to a foreign
purchaser (other than a charitable or humanitarian
organization) of the prescription drug; or
``(B) restricting the access of pharmacists or wholesalers
to a prescription drug that is permitted to be imported into
the United States under this section.
``(j) Charitable Contributions.--Notwithstanding any other
provision of this section, section 801(d)(1) continues to
apply to a prescription drug that is donated or otherwise
supplied at no charge by the manufacturer of the drug to a
charitable or humanitarian organization (including the United
Nations and affiliates) or to a government of a foreign
country.
``(k) Waiver Authority for Importation by Individuals.--
``(1) Declarations.--Congress declares that in the
enforcement against individuals of the prohibition of
importation of prescription drugs and devices, the Secretary
should--
``(A) focus enforcement on cases in which the importation
by an individual poses a significant threat to public health;
and
``(B) exercise discretion to permit individuals to make
such importations in circumstances in which--
``(i) the importation is clearly for personal use; and
``(ii) the prescription drug or device imported does not
appear to present an unreasonable risk to the individual.
``(2) Waiver authority.--
``(A) In general.--The Secretary may grant to individuals,
by regulation or on a case-by-case basis, a waiver of the
prohibition of importation of a prescription drug or device
or class of prescription drugs or devices, under such
conditions as the Secretary determines to be appropriate.
``(B) Guidance on case-by-case waivers.--The Secretary
shall publish, and update as necessary, guidance that
accurately describes circumstances in which the Secretary
will consistently grant waivers on a case-by-case basis under
subparagraph (A), so that individuals may know with the
greatest practicable degree of certainty whether a particular
importation for personal use will be permitted.
``(3) Drugs imported from canada.--In particular, the
Secretary shall by regulation grant individuals a waiver to
permit individuals to import into the United States a
prescription drug that--
``(A) is imported from a licensed pharmacy for personal use
by an individual, not for resale, in quantities that do not
exceed a 90-day supply;
[[Page S3318]]
``(B) is accompanied by a copy of a valid prescription;
``(C) is imported from Canada, from a seller registered
with the Secretary;
``(D) is a prescription drug approved by the Secretary
under chapter V;
``(E) is in the form of a final finished dosage that was
manufactured in an establishment registered under section
510; and
``(F) is imported under such other conditions as the
Secretary determines to be necessary to ensure public safety.
``(l) Studies; Reports.--
``(1) By the institute of medicine of the national academy
of sciences.--
``(A) Study.--
``(i) In general.--The Secretary shall request that the
Institute of Medicine of the National Academy of Sciences
conduct a study of--
``(I) importations of prescription drugs made under the
regulations under subsection (b); and
``(II) information and documentation submitted under
subsection (d).
``(ii) Requirements.--In conducting the study, the
Institute of Medicine shall--
``(I) evaluate the compliance of importers with the
regulations under subsection (b);
``(II) compare the number of shipments under the
regulations under subsection (b) during the study period that
are determined to be counterfeit, misbranded, or adulterated,
and compare that number with the number of shipments made
during the study period within the United States that are
determined to be counterfeit, misbranded, or adulterated; and
``(III) consult with the Secretary, the United States Trade
Representative, and the Commissioner of Patents and
Trademarks to evaluate the effect of importations under the
regulations under subsection (b) on trade and patent rights
under Federal law.
``(B) Report.--Not later than 2 years after the effective
date of the regulations under subsection (b), the Institute
of Medicine shall submit to Congress a report describing the
findings of the study under subparagraph (A).
``(2) By the comptroller general.--
``(A) Study.--The Comptroller General of the United States
shall conduct a study to determine the effect of this section
on the price of prescription drugs sold to consumers at
retail.
``(B) Report.--Not later than 18 months after the effective
date of the regulations under subsection (b), the Comptroller
General of the United States shall submit to Congress a
report describing the findings of the study under
subparagraph (A).
``(m) Construction.--Nothing in this section limits the
authority of the Secretary relating to the importation of
prescription drugs, other than with respect to section
801(d)(1) as provided in this section.
``(n) Authorization of Appropriations.--There are
authorized to be appropriated such sums as are necessary to
carry out this section.''.
(b) Conforming Amendments.--The Federal Food, Drug, and
Cosmetic Act is amended--
(1) in section 301(aa) (21 U.S.C. 331(aa)), by striking
``covered product in violation of section 804'' and inserting
``prescription drug in violation of section 804'';
(2) in section 303(a)(6) (21 U.S.C. 333(a)(6), by striking
``covered product pursuant to section 804(a)'' and inserting
``prescription drug under section 804(b)''.
Mr. WELLSTONE. Madam President, I am glad we have the opportunity
today to introduce legislation that corrects a sad injustice. This
injustice makes American consumers the least likely of any in the
industrialized world to be able to afford drugs manufactured by the
American pharmaceutical industry. That's because of the unconscionable
prices the industry charges only here in the United States.
When I return to Minnesota which I do frequently, I meet with many
constituents, but none with more compelling stories than senior
citizens struggling to make ends meet because of the high cost of
prescription drugs, life-saving drugs that are not covered under the
Medicare program. Ten or twenty years ago these same senior citizens
were going to work everyday, in the stores, and factories, and mines in
Minnesota, earning an honest paycheck, and paying their taxes without
protest. Now they wonder, how can this government, their government,
stand by, when the medicines they need are out of reach.
And it is not just that Medicare won't pay for these drugs. The
unfairness which Minnesotans feel is exacerbated of course by the high
cost of prescription drugs here in the United States, the same drugs
that can be purchased for frequently half the price in Canada. These
are the exact same drugs, manufactured in the exact same facilities
with the exact same safety precautions.
All the legislators speaking today have heard the first-hand stores
from our constituents back home. Our constituents are justifiably
frustrated and discouraged when they can't afford to buy prescription
drugs that are made in the United States, unless they go across the
border to Canada where those same drugs, manufactured in the same
facilities are available for about half the price.
Senior citizens have lost their patience in waiting for answers, and
so have I. Driving to Canada every few months to buy prescription drugs
at affordable prices isn't the solution; it's a symptom of how broken
parts of our health care system are. Americans regardless of political
party have a fundamental belief in fairness, and we know a rip-off when
we see one. It is time to end that rip-off.
While we can be proud of both American scientific research that
produces new miracle cures and the high standards of safety and
efficacy that we expect to be followed at the FDA, it is shameful that
America's most vulnerable citizens, the chronically ill and the
elderly, are being asked to pay the highest prices in the world here in
the U.S. for the exact same medicines that are manufactured here but
sold more cheaply in other countries.
That is why I am introducing with my colleagues today the Medicine
Equity and Drug Safety Act of 2002. This bill will amend the Food,
Drug, and Cosmetic Act to allow American pharmacists and wholesalers to
import prescription drugs from Canada into the United States, as long
as the drugs meet FDA's strict safety standards. Pharmacists
and wholesalers will be able to purchase these drugs, often
manufactured right here in the U.S., at much lower prices and then pass
those savings on to consumers. In addition, the bill would give
individuals a waiver to import prescription drugs from Canada as long
as the medicine is for their own personal use and the amount of
medicine imported is a 90-day supply or less. This provision will give
consumers confidence that, if they follow the rules for personal
importation, they won't have to worry about their medicines being
stopped at the border.
Our bill addresses the absurd situation by which American consumers
are paying substantially higher prices for their prescription drugs
than are the citizens of Canada. The bill does not create any new
Federal programs. Instead, it uses principles frequently cited in both
houses of the Congress, principles of free trade and competition, the
help make it possible for American consumers to purchase the
prescription drugs they need.
And the need is clear. A recent informal survey by the Minnesota
Senior Federation on the price of six commonly used prescription
medications showed that Minnesota consumers pay, on average, nearly
double, 196 percent, what their Canadian counterparts pay. These
excessive prices apply to drugs manufactured by U.S. pharmaceutical
firms, the same drugs that are sold in Canada for a fraction of the
U.S. price.
Pharmacists could sell prescription drugs for less here in the United
States, if they could buy and import these same drugs from Canada at
lower prices than the pharmaceutical companies charge here.
Now, however, Federal law allows only the manufacturer of a drug to
import it into the U.S. Thus American pharmacists and wholesalers must
pay the exorbitant prices charged by the pharmaceutical industry in the
U.S. market and pass along those high prices to consumers. It is time
to stop protecting the pharmaceutical industry's outrageous profits,
and they are outrageous.
Let's take a look at the numbers, so there can be no mistake:
Where the average Fortune 500 industry in the United States returned
2.2 percent profits as a percentage of revenue, the pharmaceutical
industry returned 18.5 percent.
Where the average Fortune 500 industry returned 2.5 percent profits
as a percentage of their assets, the pharmaceutical industry returned
16.5 percent.
Where the average Fortune 500 industry returned less than 10 percent
profits as a percentage of shareholders equity, the pharmaceutical
industry returned 33.2 percent.
Those huge profits are no surprise to America's senior citizens
because they know where those profits come from, they come from their
own pocketbooks. It is time to end the price gouging.
We need legislation that can assure our senior citizens and all
Americans
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that safe and affordable prescription medications at last will be as
available in the United States of America as they are in Canada. The
bill we are introducing today accomplishes that end.
I also want to point out that our bill includes important safety
precautions to make sure we are not sacrificing safety for price. The
safety measures provide strong protection for the American public.
These protections include: Strict FDA oversight; importation from
Canada only; strict handling requirements for importers, like those
already in place for manufacturers; registration of Canadian
pharmacists and wholesalers with the HHS Secretary; lab testing to
screen out counterfeits; lab testing to ensure purity, potency, and
safety of medications and; authority for the HHS Secretary to
immediately suspend importation of prescription drugs that appear
counterfeit or otherwise violate the law.
The only thing that is not protected in this bill is the excessive
profits of the pharmaceutical industry. My job as a United States
Senator is not to protect profits but to protect the people.
Colleagues, please join us and support this thoughtful and important
bill that will help make prescription drugs affordable to the American
people.
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