[Congressional Record Volume 149, Number 8 (Thursday, January 16, 2003)]
[Senate]
[Pages S1071-S1072]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself and Mr. DeWine):
  S. 178. A bill to amend title XVIII of the Social Security Act to 
provide adequate coverage for immunosuppressive drugs furnished to 
beneficiaries under the medicare program that have received an organ 
transplant; to the Committee on Finance.
  Mr. DURBIN. Mr. President, I rise to make a few remarks concerning 
this bill I am introducing today with my colleague from Ohio, which 
will help many Medicare beneficiaries who have had organ transplants.
  Last year over 4,400 people died while waiting for an organ 
transplant, including 257 in my home State of Illinois. Currently, over 
80,000 Americans are waiting for a donor organ with 4,349 waiting in 
Illinois. It is this scarcity that has fueled the controversy over 
organ allocation.
  Given that organs are extremely scarce, Federal law should not 
compromise the success of organ transplantation. Yet that is exactly 
what current Medicare policy does, because Medicare denies certain 
transplant patients coverage for the drugs needed to prevent rejection.
  Medicare does this in several different ways. First, Medicare does 
not pay for anti-rejection drugs for Medicare beneficiaries, who 
received their transplants prior to becoming a Medicare beneficiary. So 
for instance, if a person received a transplant at aged 64 through 
their health insurance plan, when they retire and rely on Medicare for 
their health care they will no longer have immunosuppressive drug 
coverage. Transplanation is the only medical condition that Medicare 
treats as a pre-existing condition so as to deny a Medicare beneficiary 
a health care service that would otherwise be covered.
  Second, Medicare only pays for anti-rejection drugs for transplants 
performed in a Medicare approved transplant facility. However, many 
beneficiaries are completely unaware of this fact and how it can 
jeopardize their future coverage of immunosuppressive drugs. To receive 
an organ transplant, a person must be very ill and many are far too ill 
at the time of transplantation to be researching the intricate nuances 
of Medicare coverage policy.
  Finally, Medicare has a special program for End Stage Renal Disease, 
ESRD, patients. Medicare pays for their dialysis at a cost of over 
$100,000 per year and provides for all their health care costs. 
However, it a transplant becomes available to an ESRD patient, Medicare 
only provides them with health care for three years post-
transplantation. The fact is, however, that they will need to use 
immunosuppressive drugs for the rest of their life to maintain their 
transplant. But after the three years are up, their entire Medicare 
coverage, including immunosuppressive drug coverage is terminated. If 
that person's transplant is rejected because they can no longer afford 
their immunosuppressive drugs, then Medicare will again pay for their 
dialysis and all of their health care costs. This is ludicrous. It 
would make more sense for Medicare to continue to provide them with the 
lifesaving immunosuppressive drugs that they need.
  The bill that I am introducing today, the ``Comprehensive 
Immunosuppressive Drug Coverage for Transplant Patients of 2000 Act'' 
would remove these short-sighted limitations. The bill sets up a new, 
easy to follow policy: All Medicare beneficiaries who have had a 
transplant and need immunosuppressive drugs to prevent rejection of 
their transplant, would be covered as long as such anti-rejection drugs 
were needed.
  I am introducing this bill on behalf of some of the constituents that 
I have met who are unfortunately very adversely affected by the current 
gaps in Medicare coverage.
  Richard Hevrdejs was a Chicago attorney in private practice until 
1993. Unfortunately, he suffered a debilitating heart attack that year, 
which left him unable to work and on disability. In 1997 suffering from 
congestive heart failure, he was placed on a Heart-Mate machine at the 
University of Illinois Medical Center, UIC. In April of 1998, he 
received a heart transplant at UIC but because UIC was not at the time 
a Medicare approved facility for heart transplants, Medicare will not 
cover his immunosuppressive drugs. Richard was near death when he had 
his transplant and was in no condition to research the intricacies of 
Medicare coverage policies. His drug costs are now around $25,000 per 
year. He gets some assistance from the drug company medical assistance 
plans and he has a Medigap policy that provides a little assistance. 
But for the most part, he is forced to watch all his savings dwindle 
because of Medicare's coverage gaps.
  Anita Milton was from Morris, Illinois. In 1995, she became so 
disabled that she was no longer able to work and was forced onto 
disability. The following year, he lungs gave up and she had to have a 
bilateral lung transplant. Because Medicare is not available for 2 
years after a person becomes eligible for disability, Anita was not on 
Medicare when she had the transplant. The huge bills for the transplant 
remained at collection agencies till her death several years ago. 
Because Anita was not on Medicare when she received her transplant, she 
did not receive Medicare coverage for the anti-rejection drugs that she 
needs. She received $940 in disability payments per month. She than 
went on Medicaid but due to the spend down requirements in Illinois, 
she had to spend $689 on drug costs to get Medicare coverage for her 
drugs. In effect she got coverage every second month. Anita couldn't 
afford her anti-rejection drugs and she tried to scale back on them. 
This caused her to nearly reject the transplant. Consequently, she lost 
a third of her lung capacity permanently. As Anita said at a Town Hall 
meeting in Chicago in January 1998 ``these Medicare and Medicaid rules 
make no sense.''
  I am introducing this bill on the same day that another bill the 
``Living Donor Access Act of 2003'', which I am an original cosponsor, 
is also being introduced by my colleague Senator DeWine. The ``Living 
Donor Access Act'' also seeks to improve the lives of transplant 
patients. The ``Living Donor Access Act'' would prohibit insurers in 
the group market from imposing additional premiums or preexisting 
condition exclusions on living organ donors. There are currently more 
than 25,000 living organ donors, but no law protects these individuals 
against discrimination in the group health insurance market. The two 
bills are good companions. It is important that we root out all 
discrimination against both those who have received transplants and 
those who are so generous as to donate.
  I ask unanimous consent that the text of the bill, the 
``Comprehensive Immunosuppressive Drug Coverage for Transplant Patients 
of 2003'', be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 178

       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 ``Comprehensive 
     Immunosuppressive Drug Coverage for Transplant Patients Act 
     of 2003''.

     SEC. 2. COMPREHENSIVE COVERAGE OF IMMUNOSUPPRESSIVE DRUGS 
                   UNDER THE MEDICARE PROGRAM.

       (a) In General.--Section 1861(s)(2)(J) of the Social 
     Security Act (42 U.S.C. 1395x(s)(2)(J)) is amended by 
     striking ``, to an individual who receives'' and all that 
     follows before the semicolon at the end and inserting ``to an 
     individual who has received an organ transplant''.
       (b) Effective Date.--The amendments made by this section 
     shall apply to drugs furnished on or after the date of 
     enactment of this Act.

[[Page S1072]]

     SEC. 3. PROVISION OF APPROPRIATE COVERAGE OF 
                   IMMUNOSUPPRESSIVE DRUGS UNDER THE MEDICARE 
                   PROGRAM FOR ORGAN TRANSPLANT RECIPIENTS.

       (a) Continued Entitlement to Immunosuppressive Drugs.--
       (1) Kidney transplant recipients.--Section 226A(b)(2) of 
     the Social Security Act (42 U.S.C. 426-1(b)(2)) is amended by 
     inserting ``(except for coverage of immunosuppressive drugs 
     under section 1861(s)(2)(J))'' after ``shall end''.
       (2) Other transplant recipients.--The flush matter 
     following paragraph (2)(C)(ii)(II) of section 226(b) of the 
     Social Security Act (42 U.S.C. 426(b)) is amended by striking 
     ``of this subsection)'' and inserting ``of this subsection 
     and except for coverage of immunosuppressive drugs under 
     section 1861(s)(2)(J))''.
       (3) Application.--Section 1836 of the Social Security Act 
     (42 U.S.C. 1395o) is amended--
       (A) by striking ``Every individual who'' and inserting 
     ``(a) In General.--Every individual who''; and
       (B) by adding at the end the following new subsection:
       ``(b) Special Rules Applicable to Individuals Only Eligible 
     for Coverage of Immunosuppressive Drugs.--
       ``(1) In general.--In the case of an individual whose 
     eligibility for benefits under this title has ended except 
     for the coverage of immunosuppressive drugs by reason of 
     section 226(b) or 226A(b)(2), the following rules shall 
     apply:
       ``(A) The individual shall be deemed to be enrolled under 
     this part for purposes of receiving coverage of such drugs.
       ``(B) The individual shall be responsible for the full 
     amount of the premium under section 1839 in order to receive 
     such coverage.
       ``(C) The provision of such drugs shall be subject to the 
     application of--
       ``(i) the deductible under section 1833(b); and
       ``(ii) the coinsurance amount applicable for such drugs (as 
     determined under this part).
       ``(D) If the individual is an inpatient of a hospital or 
     other entity, the individual is entitled to receive coverage 
     of such drugs under this part.
       ``(2) Establishment of procedures in order to implement 
     coverage.--The Secretary shall establish procedures for--
       ``(A) identifying beneficiaries that are entitled to 
     coverage of immunosuppressive drugs by reason of section 
     226(b) or 226A(b)(2); and
       ``(B) distinguishing such beneficiaries from beneficiaries 
     that are enrolled under this part for the complete package of 
     benefits under this part.''.
       (4) Technical amendment.--Subsection (c) of section 226A of 
     the Social Security Act (42 U.S.C. 426-1), as added by 
     section 201(a)(3)(D)(ii) of the Social Security Independence 
     and Program Improvements Act of 1994 (Public Law 103-296; 108 
     Stat. 1497), is redesignated as subsection (d).
       (b) Extension of Secondary Payer Requirements for ESRD 
     Beneficiaries.--Section 1862(b)(1)(C) of the Social Security 
     Act (42 U.S.C. 1395y(b)(1)(C)) is amended by adding at the 
     end the following new sentence: ``With regard to 
     immunosuppressive drugs furnished on or after the date of 
     enactment of the Comprehensive Immunosuppressive Drug 
     Coverage for Transplant Patients Act of 2003, this 
     subparagraph shall be applied without regard to any time 
     limitation.''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to drugs furnished on or after the date of 
     enactment of this Act.

     SEC. 4. PLANS REQUIRED TO MAINTAIN COVERAGE OF 
                   IMMUNOSUPPRESSIVE DRUGS.

       (a) Application to Certain Health Insurance Coverage.--
       (1) In general.--Subpart 2 of part A of title XXVII of the 
     Public Health Service Act (42 U.S.C. 300gg-4 et seq.) is 
     amended by adding at the end the following:

     ``SEC. 2707. COVERAGE OF IMMUNOSUPPRESSIVE DRUGS.

       ``A group health plan (and a health insurance issuer 
     offering health insurance coverage in connection with a group 
     health plan) shall provide coverage of immunosuppressive 
     drugs that is at least as comprehensive as the coverage 
     provided by such plan or issuer on the day before the date of 
     enactment of the Comprehensive Immunosuppressive Drug 
     Coverage for Transplant Patients Act of 2003, and such 
     requirement shall be deemed to be incorporated into this 
     section.''.
       (2) Conforming amendment.--Section 2721(b)(2)(A) of the 
     Public Health Service Act (42 U.S.C. 300gg-21(b)(2)(A)) is 
     amended by inserting ``(other than section 2707)'' after 
     ``requirements of such subparts''.
       (b) Application to Group Health Plans and Group Health 
     Insurance Coverage Under the Employee Retirement Income 
     Security Act of 1974.--
       (1) In general.--Subpart B of part 7 of subtitle B of title 
     I of the Employee Retirement Income Security Act of 1974 (29 
     U.S.C. 1185 et seq.) is amended by adding at the end the 
     following new section:

     ``SEC. 714. COVERAGE OF IMMUNOSUPPRESSIVE DRUGS.

       ``A group health plan (and a health insurance issuer 
     offering health insurance coverage in connection with a group 
     health plan) shall provide coverage of immunosuppressive 
     drugs that is at least as comprehensive as the coverage 
     provided by such plan or issuer on the day before the date of 
     enactment of the Comprehensive Immunosuppressive Drug 
     Coverage for Transplant Patients Act of 2003, and such 
     requirement shall be deemed to be incorporated into this 
     section.''.
       (2) Conforming amendments.--
       (A) Section 732(a) of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1185(a)) is amended by 
     striking ``section 711'' and inserting ``sections 711 and 
     714''.
       (B) The table of contents in section 1 of the Employee 
     Retirement Income Security Act of 1974 is amended by 
     inserting after the item relating to section 713 the 
     following new item:

``Sec. 714. Coverage of immunosuppressive drugs.''.

       (c) Application to Group Health Plans Under the Internal 
     Revenue Code of 1986.--Subchapter B of chapter 100 of the 
     Internal Revenue Code of 1986 is amended--
       (1) in the table of sections, by inserting after the item 
     relating to section 9812 the following new item:

``Sec. 9813. Coverage of immunosuppressive drugs.'';

     and
       (2) by inserting after section 9812 the following:

     ``SEC. 9813. COVERAGE OF IMMUNOSUPPRESSIVE DRUGS.

       ``A group health plan shall provide coverage of 
     immunosuppressive drugs that is at least as comprehensive as 
     the coverage provided by such plan on the day before the date 
     of enactment of the Comprehensive Immunosuppressive Drug 
     Coverage for Transplant Patients Act of 2003, and such 
     requirement shall be deemed to be incorporated into this 
     section.''.
       (d) Effective Date.--The amendments made by this section 
     shall apply to plan years beginning on or after January 1, 
     2004.
                                 ______