[Congressional Record Volume 149, Number 96 (Thursday, June 26, 2003)]
[Senate]
[Pages S8635-S8645]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   PRESCRIPTION DRUG AND MEDICARE IMPROVEMENT ACT OF 2003--Continued

  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. BREAUX. I thank the Chair. Mr. President, I would like to make a 
couple comments before we begin voting.
  This legislation is historic. It is incredibly important. It is the 
first reform in a major way to the Medicare Program since we wrote it 
over 35 years ago in 1965.
  To get this legislation adopted by the Congress and signed into law 
by the President, there obviously has to be a great deal of work, a 
great deal of legitimate compromise among the various parties that have 
put this package together. That is what this bill does.
  There are some Members of Congress who argue the Federal Government 
should do nothing with regard to Medicare--that the private sector 
should do everything and that the Federal Government should do nothing. 
There are others, on the other hand, who take the position that with 
regard to Medicare the Federal Government should do everything and the 
private sector should do nothing.
  What we have been able to put together, under the leadership of the 
chairman and ranking member and many others who have worked so hard, is 
a compromise that says let's combine the best of what the Government 
can do with the best of what the private sector can do and put that 
package together. That is why we have gotten to the point we are today.
  We saw a bill come out of the Senate Finance Committee in a 
bipartisan fashion with 16 votes in favor; only five votes against it. 
I predict when the final vote comes on this bill, we will see the same 
type of bipartisan representation with a significant number, maybe over 
three-fourths of the Senate saying, yes, this has sufficient 
improvement and reform in it for me to support it.
  It has enough Government involvement to make sure it is paid for, 
enough Government involvement to make sure it is run properly but not 
micromanaged, and it has enough private sector involvement to deliver, 
for the very first time, through a competitive private delivery system, 
prescription drugs for all seniors regardless of where they are or in 
what program they happen to be.
  It also says the private sector will offer, for the first time on a 
voluntary basis, to seniors who want to move into a new system a 
private delivery system that will cover drugs, will cover hospitals, 
and will also cover physician charges under the program. This is a 
historic opportunity to combine the best of what Government can do with 
the best of what the private sector can do.
  There is going to be a very important amendment offered by Chairman 
Grassley and the ranking member, Senator Baucus. Because we were able 
to get a score that said there is $12 billion extra money available, 
the question then became, How do we divide it? I never thought we would 
have such a difficult time spending money. We normally get into fights 
when we do not have enough money. Lo and behold, we found there was $12 
billion in extra funds.
  The question then for the Senate is how are we going to allocate that 
money? Senator Baucus and Senator Grassley, working with Senator 
Kennedy and others, came up with a plan that is fair.
  It says to the Republican Members: Take half of it, and they want to 
utilize it for a demonstration program to determine whether PPOs or the 
provider networks in the private sector will work. We are not certain. 
We think they will. But let's do a test. And if it costs more, there 
will be $6 billion available to pay for it starting in the year 2009. 
That is what many Republicans thought was the right way to use half of 
the money.

  On the other hand, Members on my side said, We need to do more for 
traditional fee-for-service. If they are going to experiment with the 
preferred providers in the private sector, we want to also know what 
will happen if we are able to put in more money for preventive health 
care and for people who want to stay in the old program.
  What Senator Baucus and Senator Grassley did, working with Senator 
Kennedy, was to say to people who are inclined to the Democratic 
perspective, we are going to let you use $6 billion for people who want 
to stay in the old program. Here is what you can do with it: You can 
use the money to provide enhanced benefits for people who stay in 
traditional Medicare. What we mean by that is to give them additional 
care for chronic care coordination, for the chronically ill, to 
coordinate better how they are getting their health care.
  We have more money for disease management, which is incredibly 
important. When we are talking about saving money and giving people a 
better quality of life; disease management is important. Also, they can 
use the money for other benefits and services that the Secretary 
determines will improve preventive health care for the beneficiaries.
  What we have crafted is an effort to take the extra money and allow 
for a legitimate experiment, a legitimate test of whether the preferred 
provider system will cost less money--I think it will; they can provide 
services that I think are better and at a better price, but we do not 
know that for sure, so let's do some testing on it in certain regions 
of the country. If it saves money, hallelujah for everybody. But if it 
costs money, they will have $6 billion to help pay for those extra 
charges.
  The Democrats, on the other hand, have the provisions to have $6 
billion over the period in order to provide disease management and 
preventive health care services in the traditional Medicare Program. 
That is as fair as it can be in a divided Senate. If one side had their 
way, they would do it all with the preferred providers. If our side 
perhaps had their will, it would provide all the money to be put back 
in traditional Medicare, but we all know in a divided Senate that is 
not possible.
  So the best possible compromise has been crafted by the chairman, 
Senator Grassley; by the ranking member, Senator Baucus; and by Senator 
Kennedy's involvement and many others who have worked on this issue.
  This is a good amendment. It is an important amendment. We are on the 
edge of an historic day in being able to enact real Medicare reform 
with prescription drugs for all of our Nation's seniors. We cannot let 
that goal be lost while we fight over how to divide extra funds. I 
think this division is as fair as it possibly can be, and I urge all of 
our Members to vote for it. In fact, I think the vote should be 
approximately like it came out in the Finance Committee. We lost a few 
what I would say were on the left, we lost a few what I would say were 
on the right, of the political spectrum. But in the end the vast 
majority supported this legislation in the committee and will do so on 
the Senate floor.
  I certainly ask them to support the Grassley-Baucus amendment when it 
is voted on as well.
  I yield the floor.
  The PRESIDING OFFICER. All time has expired.


                       Vote on Amendment No. 1102

  The PRESIDING OFFICER. The question is on agreeing to the McConnell 
amendment No. 1102.
  Mr. HATCH. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
and the Senator from Connecticut (Mr. Lieberman) are necessarily 
absent.

[[Page S8636]]

  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea''.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 252 Leg.]

                                YEAS--98

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--2

     Kerry
     Lieberman
       
  The amendment (No. 1102) was agreed to.
  Mr. HATCH. Mr. President, I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                    Amendment No. 1102, As Modified

  Mr. HATCH. Mr. President, I ask unanimous consent that amendment 
1102, which was just agreed to, be modified with the changes that are 
the desk.
  The PRESIDING OFFICER (Mr. Crapo). Without objection, it is so 
ordered.
  The amendment (No. 1102), as modified, is as follows:

   (Purpose: To protect seniors with cardiovascular disease, cancer, 
                   diabetes, or Alzheimer's disease)

       At the end of subtitle A of title I, add the following:

     SEC. ____. PROTECTING SENIORS WITH CARDIOVASCULAR DISEASE, 
                   CANCER, OR ALZHEIMER'S DISEASE.

       Any eligible beneficiary (as defined in section 1860D(3) of 
     the Social Security Act) who is diagnosed with cardiovascular 
     disease, cancer, diabetes or Alzheimer's disease shall be 
     protected from high prescription drug costs in the following 
     manner:
       (1) Subsidy eligible individuals with an income below 100 
     percent of the federal poverty line.--If the individual is a 
     qualified medicare beneficiary (as defined in section 1860D-
     19(a)(4) of such Act), such individual shall receive the full 
     premium subsidy and reduction of cost-sharing described in 
     section 1860D-19(a)(1) of such Act, including the payment 
     of--
       (A) no deductible;
       (B) no monthly beneficiary premium for at least one 
     Medicare Prescription Drug plan available in the area in 
     which the individual resides; and
       (C) reduced cost-sharing described in subparagraphs (C), 
     (D), and (E) of section 1860D-19(a)(1) of such Act.
       (2) Subsidy eligible individuals with an income between 100 
     and 135 percent of the federal poverty line.--If the 
     individual is a specified low income medicare beneficiary (as 
     defined in paragraph 1860D-19(4)(B) of such Act) or a 
     qualifying individual (as defined in paragraph 1860D-19(4)(C) 
     of such Act) who is diagnosed with cardiovascular disease, 
     cancer, or Alzheimer's disease, such individual shall receive 
     the full premium subsidy and reduction of cost-sharing 
     described in section 1860D-19(a)(2) of such Act, including 
     payment of--
       (A) no deductible;
       (B) no monthly premium for any Medicare Prescription Drug 
     plan described paragraph (1) or (2) of section 1860D-17(a) of 
     such Act; and
       (C) reduced cost-sharing described in subparagraphs (C), 
     (D), and (E) of section 1860D-19(a)(2) of such Act.
       (3) Subsidy-eligible individuals with income between 135 
     percent and 160 percent of the federal poverty level.--If the 
     individual is a subsidy-eligible individual (as defined in 
     section 1860D-19(a)(4)(D) of such Act) who is diagnosed with 
     cardiovascular disease, cancer, or Alzheimer's disease, such 
     individual shall receive sliding scale premium subsidy and 
     reduction of cost-sharing for subsidy-eligible individuals, 
     including payment of--
       (A) for 2006, a deductible of only $50;
       (B) only a percentage of the monthly premium (as described 
     in section 1860D-19(a)(3)(A)(i)); and
       (C) reduced cost-sharing described in clauses (iii), (iv), 
     and (v) of section 1860D-19(a)(3)(A).
       (4) Eligible beneficiaries with income above 160 percent of 
     the federal poverty level.--If an individual is an eligible 
     beneficiary (as defined in section 1860D(3) of such Act), is 
     not described in paragraphs (1) through (3), and is diagnosed 
     with cardiovascular disease, cancer, or Alzheimer's disease, 
     such individual shall have access to qualified prescription 
     drug coverage (as described in section 1860D-6(a)(1) of such 
     Act), including payment of--
       (A) for 2006, a deductible of $275;
       (B) the limits on cost-sharing described section 1860D-
     6(c)(2) of such Act up to, for 2006, an initial coverage 
     limit of $4,500; and
       (C) for 2006, an annual out-of-pocket limit of $3,700 with 
     10 percent cost-sharing after that limit is reached.

  Mr. HATCH. Mr. President, I ask unanimous consent that the next three 
votes be 10 minutes in length each.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1108

  Under the previous order, there will 2 minutes equally divided on the 
Durbin amendment No. 1108.
  Mr. DURBIN. Mr. President, with all due respect to my colleagues, the 
amendment we just agreed to did nothing. It did not add one penny or 
one new benefit to any senior suffering from Alzheimer's. This 
amendment I offer, along with Senator Harkin, will put $12 billion into 
providing prescription drug coverage for the seniors we represent who 
suffer from heart disease, cancer, Alzheimer's, diabetes and its 
complications. Take your pick--a $6 billion tax subsidy for HMO and 
private insurance companies or $12 billion for your seniors struggling 
to pay impossible prescription drug bills who will be cut off under 
this bill. It is an easy choice for me. If you take it home to your 
State, you will find it is an easy choice, too.
  I hope you will vote for this amendment.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I rise in opposition. I want to stress my 
opposition is not because I do not understand or am not sympathetic to 
the difficult situation beneficiaries who are afflicted with 
cardiovascular disease, cancer, or Alzheimer's disease experience.
  But I also recognize there are millions and millions of other seniors 
who suffer from diseases just as debilitating and life-threatening as 
the ones my colleague has identified here. Under this proposal they 
would be treated as second-class citizens because they do not suffer 
from the right disease.
  The most basic, and really the most important, tenet of the Medicare 
program is to provide a universal benefit to all seniors. We have done 
that under S. 1.
  We crafted a prescription drug benefit that helps every senior and 
also targets the most help to those who are less able to afford the 
appropriate care.
  While I am sympathetic to my colleagues' desire to enhance the 
benefit, I can't support a proposal that pits one group of seniors 
against the other based solely on this disease.
  I urge my colleagues to vote against this amendment so we can remain 
faithful to the most basic tenet of the Medicare program, a universal 
benefit, and to ensure that the Senate does not discriminate against 
seniors based on their disease.
  I move to table the amendment, and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
and the Senator from Connecticut (Mr. Lieberman) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 57, nays 41, as follows:

[[Page S8637]]

                      [Rollcall Vote No. 253 Leg.]

                                YEAS--57

     Alexander
     Allard
     Allen
     Baucus
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Jeffords
     Kennedy
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--41

     Akaka
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Johnson
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--2

     Kerry
     Lieberman
       
  The motion was agreed to.
  Mr. REID. Mr. President, I move to reconsider the vote and to lay 
that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 1103 To Amendment No. 1092

  The PRESIDING OFFICER. Under the previous order, there are 2 minutes 
equally divided on the Dorgan second-degree amendment.
  Who yields time?
  Mr. DORGAN. Mr. President, the importance of this amendment is 
answering the question, what to do with $12 billion. I propose we use 
that $12 billion to reduce the premium that senior citizens will be 
required to pay for this prescription drug benefit, roughly $7 a month, 
from $35 to $28.
  The rebuttal to my amendment has been: This really doesn't mean very 
much. Only in this Chamber would $12 billion not mean very much. 
Frankly, this means a great deal to senior citizens. The underlying 
amendment represents the worst of all worlds. It says, let's give $6 
billion to insurance companies. And I guarantee, you dye that money 
purple, you will have purple pockets in the insurance industry. That is 
where it is going. Let's have $6 billion go to the insurance industry 
to conduct an experiment that we already know has failed.
  I don't understand why that is the way we want to use billions of 
dollars. Why not use it to help senior citizens close the coverage gap 
or, as I suggest, to reduce monthly premiums which start at $35 a month 
in this bill and then ratchet up and up and up as prescription drug 
prices increase. Pass my amendment and help senior citizens reduce 
these premiums.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Yes, $12 billion is a lot of money; $6 billion of that 
$12 billion he wants to take away from this provision, this bipartisan 
provision, that would be used for things he stands for. He has been 
talking about chronic disease management. He has been talking about 
managing to a better extent people with chronic diseases. We have put 
$6 billion into demonstration projects like that to save the taxpayers' 
money. Why? Because 5 percent of the seniors cause 50 percent of the 
costs to Medicare. That is why those demonstration projects are very 
important. That is why I hope you will vote against this amendment.
  Mr. SANTORUM. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the amendment. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
and the Senator from Connecticut (Mr. Lieberman) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 39, nays 59, as follows:

                      [Rollcall Vote No. 254 Leg.]

                                YEAS--39

     Akaka
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Johnson
     Kohl
     Lautenberg
     Leahy
     Levin
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                                NAYS--59

     Alexander
     Allard
     Allen
     Baucus
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Carper
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Jeffords
     Kennedy
     Kyl
     Landrieu
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                             NOT VOTING--2

     Kerry
     Lieberman
       
  The amendment (No. 1103) was rejected.


                           Amendment No. 1092

  The PRESIDING OFFICER. Under the previous order, there are now 2 
minutes equally divided on the Grassley amendment.
  The Senator from Montana.
  Mr. BAUCUS. Mr. President, I say to my colleagues, this is the key 
amendment that will provide for the passage of this legislation and, 
therefore, prescription drug benefits for seniors. It is the key 
amendment.
  Why do I say key amendment? Very simply because we have $12 billion, 
and we have to find a way, in an evenhanded, balanced way, to spend 
that $12 billion. We have to marry two competing philosophies: private 
competition and Medicare.
  We have, therefore, designed the solution that the $12 billion will 
be evenly divided to keep the balance so that we can get this 
legislation passed and, more importantly, so seniors get a prescription 
drug benefit as quickly as possible.
  If this amendment is not adopted, we are going to be in the soup. 
There are going to be Senators from one side of the aisle who are going 
to want to spend all of it their way; there are going to be Senators on 
the other side of the aisle who want it all spent their way; and we are 
going to be nowhere. We are going to be back where we have been the 
last 4 years, talking about prescription drugs benefits but not doing 
something about it, not providing the benefits to our seniors.
  This is a key amendment. This is the amendment which will allow 
benefits to go to seniors.
  The PRESIDING OFFICER (Mr. Smith). The Senator's time has expired.
  The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, to pick up on what Senator Baucus said, 
let me tell you what this does. There will be $6 billion spent on our 
side of the aisle to do the things about which we are concerned. What? 
Allow the competitive model to work, allow the new blueprint for 
Medicare to be successful, starting in 2009, because that is when the 
money is available, but what Jon Kyl and so many others on this side of 
the aisle have been concerned about is in this amendment. If my 
colleagues want to give competition a chance, this is the amendment 
they vote for.

  On that side of the aisle, what is $6 billion? For chronic care and 
disease management. Senator Kennedy has worked on this tirelessly. Five 
percent of Medicare recipients consume 50 percent of the Medicare 
benefits. What we need in the fee-for-service plan is programs for 
disease management and chronic illness management. As the Senator from 
Massachusetts said to me just a few minutes ago, nowhere else will we 
be able to find $6 billion to do this very important, cost-saving, 
quality improvement to the basic Medicare system. It is what both sides 
want.
  We have come together and we hope we will get strong support for this 
amendment.

[[Page S8638]]

  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The majority leader.
  Mr. DORGAN. Mr. President, parliamentary inquiry. Who is recognized 
to speak in opposition to the amendment?
  The PRESIDING OFFICER. The majority leader was recognized.
  Mr. FRIST. Mr. President, very briefly, this amendment is the 
culmination of several days of debate where both Democrats and 
Republicans have come together, again bringing different issues to the 
table, but together it is a positive, strong amendment for the American 
people and for seniors.
  On the one hand, it invests $6 billion, that is not in the underlying 
bill, in preventive medicine, which almost does not exist in 
traditional Medicare, and in chronic disease management. All of us know 
5 percent of the beneficiaries are responsible for 50 percent of the 
cost and we know we need to manage those people better. So we have $6 
billion for preventive medicine and chronic disease management.
  In addition, there is $6 billion to support the concept of private 
enterprise, competition, the private entities, which we believe is not 
the only salvation but critical if we are going to address the long-
term, 75-year unfunded liabilities that are incurred when we add a new 
prescription drug benefit.
  For that reason, I urge our colleagues on both sides of the aisle to 
recognize that we worked together, Democrats and Republicans, to come 
to this carefully negotiated agreement that will be to the benefit of 
seniors and individuals with disabilities.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, parliamentary inquiry. My understanding 
was prior to a vote there was to be time divided between opponents and 
supporters. We have just heard from three supporters.

  The PRESIDING OFFICER. The agreement was the time was to be evenly 
divided.
  Mr. DORGAN. Evenly divided between whom?
  The PRESIDING OFFICER. The managers.
  Mr. BAUCUS. Mr. President, I ask unanimous consent that the Senator 
from North Dakota be given 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from North Dakota.
  Mr. DORGAN. Mr. President, there does need to be opposition, it seems 
to me, for those of us who believe this is not the right way to use $12 
billion. The $12 billion was made available. Twelve billion is what we 
discovered. The CBO estimate was below the $400 billion available for 
this program. So the question was: How shall the $12 billion be used?
  We have spent all of our lives in this Chamber making choices. Too 
often we make the wrong choices in circumstances such as this. We come 
back with a plan that says let's use the $12 billion for two purposes, 
and both of them are for experiments. In both cases, we know the answer 
to the experiments. One, $6 billion to the insurance companies so we 
can incentivize--subsidize--the insurance companies to see if they can 
provide the prescription drug benefit at equivalent or less cost than 
Medicare does. We know the answer to that. That experiment has been 
done.
  Ask senior citizens all across this country what would you rather 
have, better benefits or lower costs or would you like to have $12 
billion in demonstration projects? That is the choice. The choice has 
been presented to us at this point in this amendment to say let's 
bifurcate this into two $6 billion pots, both of which will be 
demonstration projects, the answer to which we know in both cases. 
First, the circumstance with subsidizing the insurance companies, we 
know the answer to that. They are going to provide this benefit at 
higher costs. We know that. Second, does wellness and chronic care 
help? Yes, we know that. Why do we not take the $12 billion and use it 
to provide better benefits or lower costs for senior citizens? After 
all, that is why we started this process, to provide a prescription 
drug benefit that works for senior citizens.
  We come to the end of this process, and we have a group of people who 
go into a closed room and come out with a deal that says we have 
decided how the $12 billion should be used.
  Ask senior citizens how they would like it used and I guarantee there 
is only one answer from every corner of this country: Use it to provide 
us benefits that were promised, deliver that which was promised to us.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SANTORUM. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to amendment No. 1092, as modified.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Ohio (Mr. Voinovich) 
is necessarily absent.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
and the Senator from Connecticut (Mr. Lieberman) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay''.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 71, nays 26, as follows:

                      [Rollcall Vote No. 255 Leg.]

                                YEAS--71

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Carper
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Feinstein
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Kennedy
     Kyl
     Landrieu
     Lautenberg
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Pryor
     Reid
     Roberts
     Santorum
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Warner
     Wyden

                                NAYS--26

     Akaka
     Boxer
     Byrd
     Cantwell
     Clinton
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Graham (FL)
     Harkin
     Hollings
     Johnson
     Kohl
     Leahy
     Levin
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Rockefeller
     Sarbanes
     Stabenow

                             NOT VOTING--3

     Kerry
     Lieberman
     Voinovich
  The amendment (No. 1092) was agreed to.
  Mr. REID. Mr. President, I move to reconsider the vote.
  Mr. ENSIGN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BAUCUS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senate will be in order.
  The Senator from Montana.
  Mr. BAUCUS. Mr. President, on behalf of myself and the chairman of 
the committee, Senator Grassley, I ask unanimous consent that at 5 p.m. 
today the Senate proceed to a vote in relation to the Sessions 
amendment, No. 1011, to be followed by a vote in relation to the 
Rockefeller amendment numbered 975, as modified; to be followed by a 
vote in relation to the Bingaman amendment numbered 1066; provided 
further that there be no amendment in order to the amendments prior to 
the votes, and there be 2 minutes equally divided for debate.

  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Mr. President, I ask unanimous consent that the time 
between now and 5 o'clock be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Who yields time?
  Mr. REID. Mr. President, I suggest the absence of a quorum, and I ask

[[Page S8639]]

unanimous consent that the time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BAUCUS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BAUCUS. Mr. President, I yield 5 minutes to the Senator from West 
Virginia.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I thank the distinguished ranking 
member of the Finance Committee.


                     Amendment No. 975, As Modified

  Mr. President, in accordance with the agreement just entered into, I 
send a modification of my amendment to the desk and ask for its 
immediate consideration.
  The PRESIDING OFFICER. The amendment is so modified.
  The amendment (No. 975), as modified, is as follows:

       On page 10, lines 12 and 13, strike ``(other than a dual 
     eligible individual, as defined in section 1860D-
     19(a)(4)(E))''.
       On page 21, strike lines 22 through 25, and insert ``title 
     XIX through a waiver under 1115 where covered outpatient 
     drugs are the sole medical assistance benefit.
       On page 107, line 3, strike ``30 percent'' and insert 
     ``27.5 percent''.
       On page 116, line 10, insert ``and'' after the semi-colon.
       On page 116, line 12, strike ``; and'' and insert a period.
       On page 116, strike lines 13 through 17.
       On page 116, line 24, insert ``and'' after the semi-colon.
       On page 117, line 2, strike ``; and'' and insert a period.
       On page 117, strike lines 3 through 7.
       On page 117, line 13, insert ``and'' after the semicolon.
       On page 117, line 17, strike ``; and'' and insert a period.
       On page 117, strike lines 18 through 23.
       On page 118, line 6, insert ``and'' after the semicolon.
       On page 118, in line 13, insert ``or'' after the semi-
     colon.
       On page 118, line 14, strike ``; or'' and insert a period.
       On page 118, strike line 15.
       Beginning on page 118, strike line 16 and all that follows 
     through page 119, line 9.
       On page 119, line 10, strike ``(F)'' and insert ``(E)''.
       On page 119, line 15, strike ``(G)'' and insert ``(F)''.
       On page 119, line 19, strike ``(C), (D), or (E)'' and 
     insert ``(C), or (D)''.
       On page 120, line 3, strike ``(H)'' and insert ``(G)''.
       On page 120, lines 5 and 6, strike ``who is a dual eligible 
     individual or an individual''.
       Beginning on page 121, line 24, strike ``dual eligible'' 
     and all that follows through ``and'' on page 122, line 1.
       On page 146, line 6, insert before the period ``and to the 
     design, development, acquisition or installation of improved 
     data systems necessary to track prescription drug spending 
     for purposes of implementing section 1935(c)''.
       Beginning on page 146, strike line 23 and all that follows 
     through page 149, line 21, and insert the following:
       ``(c) Federal Assumption of Medicaid Prescription Drug 
     Costs for Dually Eligible Beneficiaries.--
       ``(1) In general.--For purpose of section 1903(a)(1) for a 
     State for a calendar quarter in a year (beginning with 2006) 
     the amount computed under this subsection is equal to the 
     product of the following:
       ``(A) Standard prescription drug coverage under medicare.--
     With respect to individuals who are residents of the State, 
     who are entitled to, or enrolled for, benefits under part A 
     of title XVIII, or are enrolled under part B of title XVIII 
     and are receiving medical assistance under subparagraph 
     (A)(i), (A)(ii), or (C) of section 1902(a)(10) (or as the 
     result of the application of section 1902(f)) that includes 
     covered outpatient drugs (as defined for purposes of section 
     1927) under the State plan under this title (including such a 
     plan operated under a waiver under section 1115)--
       ``(i) the total amounts attributable to such individuals in 
     the quarter under section 1860D-19 (relating to premium and 
     cost-sharing subsidies for low-income medicare 
     beneficiaries); and
       ``(ii) the actuarial value of standard prescription drug 
     coverage (as determined under section 1860D-6(f)) provided to 
     such individuals in the quarter.
       ``(B) State matching rate.--A proportion computed by 
     subtracting from 100 percent the Federal medical assistance 
     percentage (as defined in section 1905(b)) applicable to the 
     State and the quarter.
       ``(C) Phase-out proportion.--Subject to subparagraph (D), 
     the phase-out proportion for a quarter in--
       ``(i) 2006 is 100 percent;
       ``(ii) 2007 is 95 percent;
       ``(iii) 2008 or 2009, is 90 percent;
       ``(iv) 2010 is 86 percent; or
       ``(v) 2011, 2012, or 2013 is 80 percent.
       ``(d) Medicaid as Secondary Payor.--In the case of an 
     individual who is entitled to a Medicare Prescription Drug 
     plan under part D or drug coverage under a MedicareAdvantage 
     plan, and medical assistance including covered outpatient 
     drugs under this title, medical assistance shall continue to 
     be provided under this title for covered outpatient drugs to 
     the extent payment is not made under the Medicare 
     Prescription Drug plan or a MedicareAdvantage plan.''
       Beginning on page 152, strike line 3 and all that follows 
     through page 153, line 15, and insert the following:
       ``(f) Definition.--For purposes of this section, the term 
     `subsidy-eligible individual' has the meaning given that term 
     in subparagraph (D) of section 1860D-19(a)(4).''.
       (C) Conforming amendments.--
       (1) Section 1903(a)(1) (42 U.S.C. 1396a(a)(1)) is amended 
     by inserting before the semicolon the following: ``, reduced 
     by the amount computed under section 1935(c)(1) for the State 
     and the quarter''.
       (2) Section 1108(f) (42 U.S.C. 1308(f)) is amended by 
     inserting ``and section 1935(e)(1)(B)'' after ``Subject to 
     subsection (g)''.
       Beginning on page 157, strike line 21 and all that follows 
     through page 158, line 4.
       On page 173, beginning on line 15, strike ``that is not'' 
     and all that follows through ``includes'' on line 18 on that 
     page, and insert ``that includes but is limited solely to''.
       On page 190, in line 18, strike ``and''.
       On page 190, between lines 18 and 19, insert the following:
       ``(B) is not a dual eligible beneficiary as defined under 
     section 1807(i)(1)(B); and''.
       On page 190, line 19, strike ``(B)'' and insert ``(C)''.
       On page 529, between lines 8 and 9, insert the following:

     SEC. 455. MEDICARE SECONDARY PAYOR (MSP) PROVISIONS.

       (a) Technical Amendment Concerning Secretary's Authority to 
     Make Conditional Payment When Certain Primary Plans Do Not 
     Pay Promptly.--
       (1) In general.--Section 1862(b)(2) (42 U.S.C. 1395y(b)(2)) 
     is amended--
       (A) in subparagraph (A)(ii), by striking ``promptly (as 
     determined in accordance with regulations)'';
       (B) in subparagraph (B)--
       (i) by redesignating clauses (i) through (iii) as clauses 
     (ii) through (iv), respectively; and
       (ii) by inserting before clause (ii), as so redesignated, 
     the following new clause:
       ``(i) Authority to make conditional payment.--The Secretary 
     may make payment under this title with respect to an item or 
     service if a primary plan described in subparagraph (A)(ii) 
     has not made or cannot reasonably be expected to make payment 
     with respect to such item or service promptly (as determined 
     in accordance with regulations). Any such payment by the 
     Secretary shall be conditioned on reimbursement to the 
     appropriate Trust Fund in accordance with the succeeding 
     provisions of this subsection.''.
       (2) Effective date.--The amendments made by paragraph (1) 
     shall be effective as if included in the enactment of title 
     III of the Medicare and Medicaid Budget Reconciliation 
     Amendments of 1984 (Public Law 98-369).
       (b) Clarifying Amendments to Conditional Payment 
     Provisions.--Section 1862(b)(2) (42 U.S.C. 1395y(b)(2)) is 
     further amended--
       (1) in subparagraph (A), in the matter following clause 
     (ii), by inserting the following sentence at the end: ``An 
     entity that engages in a business, trade, or profession shall 
     be deemed to have a self-insured plan if it carries its own 
     risk (whether by a failure to obtain insurance, or otherwise) 
     in whole or in part.'';
       (2) in subparagraph (B)(ii), as redesignated by subsection 
     (a)(2)(B)--
       (A) by striking the first sentence and inserting the 
     following: ``A primary plan, and an entity that receives 
     payment from a primary plan, shall reimburse the appropriate 
     Trust Fund for any payment made by the Secretary under this 
     title with respect to an item or service if it is 
     demonstrated that such primary plan has or had a 
     responsibility to make payment with respect to such item or 
     service. A primary plan's responsibility for such payment may 
     be demonstrated by a judgment, a payment conditioned upon the 
     recipient's compromise, waiver, or release (whether or not 
     there is a determination or admission of liability) of 
     payment for items or services included in a claim against the 
     primary plan or the primary plan's insured, or by other 
     means.''; and
       (B) in the final sentence, by striking ``on the date such 
     notice or other information is received'' and inserting ``on 
     the date notice of, or information related to, a primary 
     plan's responsibility for such payment or other information 
     is received''; and
       (3) in subparagraph (B)(iii), as redesignated by subsection 
     (a)(2)(B), by striking the first sentence and inserting the 
     following: ``In order to recover payment made under this 
     title for an item or service, the United States may bring an 
     action against any or all entities that are or were required 
     or responsible (directly, as an insurer or self-insurer, as a 
     third-party administrator, as an employer that sponsors or 
     contributes to a group health plan, or large group health 
     plan, or otherwise) to make payment with respect to the same 
     item or service (or any portion thereof) under a primary 
     plan. The

[[Page S8640]]

     United States may, in accordance with paragraph (3)(A) 
     collect double damages against any such entity. In addition, 
     the United States may recover under this clause from any 
     entity that has received payment from a primary plan or from 
     the proceeds of a primary plan's payment to any entity.''.
       (c) Clerical Amendments.--Section 1862(b) (42 U.S.C. 
     1395y(b)) is amended--
       (1) in paragraph (1)(A), by moving the indentation of 
     clauses (ii) through (v) 2 ems to the left; and
       (2) in paragraph (3)(A), by striking ``such'' before 
     ``paragraphs''.

  Mr. ROCKEFELLER. Mr. President, this amendment ensures that the 
Medicare prescription drug benefit we are debating is, in fact, truly 
universal. It is a principle we have all espoused over the years.
  The underlying bill, which we are debating, precludes Medicare 
beneficiaries who are eligible for Medicaid from enrolling in the 
Medicare drug benefit. That would be the first time ever that Medicare 
beneficiaries would be, in fact, precluded from being Medicare 
beneficiaries.
  The group, which is referred to as dual eligibles, consists of those 
who are the poorest seniors. They are those who have incomes below 74 
percent of poverty. If my colleagues are interested, that income level 
is $6,645. That is their total gross income. The majority of them are 
single. The majority of them are women who are in poor health and more 
likely to be over the age of 85.
  Precluding these people is wrong, and my amendment would fix it. I am 
happy to say the amendment is budget neutral. I will explain that in a 
minute.
  Prescription drugs are optional as a benefit under Medicaid. We all 
know that. States can limit the number of prescriptions they make 
available. Some allow two or three prescriptions per year. They can cap 
the benefits. They can charge any copayments they want. They can end it 
altogether.
  So you have States, predictably, already in a situation with very 
different Medicaid levels. Because of our financial situation 
nationally, and in our States, Medicaid is always going to be the very 
first benefit which will be cut. It has already happened, and will 
happen substantially more over the coming years.
  I remind, again, my colleagues these are the poorest of the poor, the 
oldest of the old, and the sickest of the sick we are talking about.
  I strongly urge my colleagues to provide all of the seniors in their 
States with the benefit of a real Medicare drug benefit by supporting 
this amendment.
  If a State gets to the position where it is simply unable to continue 
with prescription drugs under the Medicaid program, and they virtually 
eliminate it, that poor person, below 74 percent of poverty--which is 
just a little bit over $6,000 a year--has nowhere else to go. Always--
including presently--that person can return to Medicare. This 
underlying bill would preclude that from happening. My amendment would 
fix that in a budget-neutral fashion.
  I hope my colleagues will support this amendment which I consider one 
of the most moral and humane of amendments that has come before this 
body on this issue.
  I thank the Presiding Officer.
  Mr. GRASSLEY. Mr. President, I rise in opposition to this amendment. 
In S. 1, beneficiaries who are enrolled in both Medicaid and Medicare 
will continue to receive the generous drug coverage that they currently 
know through the Medicaid program.
  Some of my colleagues have argued that by having dual eligibles 
remain in the Medicaid program, Congress is treating these vulnerable 
seniors as second-class citizens and subjecting them to a lower quality 
benefit.
  This is not the case. In fact, this letter from the Long Term Care 
Pharmacy Alliance applauds S. 1 for keeping the duals in Medicaid.
  Specifically, the letter states, ``This approach will preserve the 
time-tested safeguards designed to prevent medication errors and ensure 
quality care for the majority of these beneficiaries in the 
institutional setting.''
  The policy decision to cover the drug cost for dual eligibles in 
Medicaid was not made in vacuum. These vulnerable citizens deserve the 
best benefit available, which is the benefit provided through Medicaid. 
I also remind my colleagues that the intent of this legislation is to 
expand prescription drug coverage to our senior citizens who do not 
have access to prescription drugs or who are faced with paying a large 
share of their income for their drug coverage.
  This does not describe the current coverage experienced by those who 
are dually eligible.
  These seniors currently have a drug benefit through the Medicaid 
program. In fact, many advocates and beneficiaries describe and know 
this benefit to be very generous.
  Medicaid was created to assist individuals who do not have the means 
to pay for their share of health care costs. That is a responsibility 
shared between the Federal Government and the States. Medicaid pays for 
many benefits that Medicare does not.
  We all know that the purpose of S. 1 is to provide prescription drugs 
to seniors that do not currently have access to drugs or are paying 
extremely high drug costs.
  However, recognizing the costs associated with covering the cost of 
providing prescription drug coverage to the dual eligible population, 
S. 1 does provide nearly 18 billion in new Federal dollars to 
compensate States for some of these costs.
  This is because S. 1 provides minimum standards that ensure that 
every aspect of the benefit provided through Medicaid is the same high 
quality that is provided through part D of the Medicare program.
  I remind my colleagues that adoption of this amendment will not 
expand coverage at all; it will simply shift the cost to the Federal 
Government and in time to the other Medicare beneficiaries.
  In closing, I remind my colleagues that S. 1 helps to deliver care 
that is consistent with current law and is familiar to vulnerable 
beneficiaries.
  I urge my colleagues to defeat this amendment.
  I ask unanimous consent to print the letter to which I referred in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                             Long Term Care Pharmacy Alliance,

                                    Washington, DC, June 24, 2003.
     Hon. Charles E. Grassley,
     Chairman, Committee on Finance, U.S. Senate, Dirksen 
         Building, Washington, DC.
       Dear Chairman Grassley: On behalf of the Long Term Care 
     Pharmacy Alliance, I appreciate this opportunity to express 
     our support for provisions of Medicare legislation you have 
     advanced to protect the nation's frail elderly beneficiaries 
     residing in nursing facilities. In particular, we are pleased 
     that your legislation would allow dual eligible beneficiaries 
     to retain their prescription drug coverage under Medicaid.
       While most Medicare beneficiaries are able to walk into 
     pharmacies to pick up their prescriptions or to receive vials 
     of pills through the mail, a sizable percentage of 
     beneficiaries cannot do so and need special services that 
     retail and mail order pharmacies do not provide. Nursing home 
     residents have specific diseases and multiple co-morbidities 
     that require specialized pharmacy care.
       To meet these needs, long-term pharmacies provide 
     specialized packaging, 24-hour delivery, infusion therapy 
     services, geriatric-specific formularies, clinical 
     consultation and other services that are indispensable in the 
     long-term care environment. Without such treatment, we cannot 
     expect positive therapeutic outcomes for these patients. 
     Failure to take into consideration the special pharmacy needs 
     of the frail and institutionalized elderly will lead to a 
     marked increase in medication errors and other adverse 
     events.
       In recognition of these concerns, your proposed legislation 
     would retain the current system of Medicaid coverage to 
     provide specialized pharmacy services to dual-eligible 
     beneficiaries residing in nursing facilities. This approach 
     will preserve the time-tested safeguards designed to prevent 
     medication errors and ensure quality care for the majority of 
     these beneficiaries in the institutional setting. Medicaid 
     today provides generous benefits to dual eligible 
     beneficiaries and has experience in addressing the special 
     needs of nursing home patients. The proposed new Medicare 
     Part D benefit does not contemplate the impact on nursing 
     home residents which must be considered to protect these 
     patients.
       We are encouraged that Section 104 of the Senate bill 
     requires the Secretary to provide recommendations to cover 
     dual eligible beneficiaries by the new Medicare Part D 
     benefit before statutorily mandating such action. 
     Nevertheless, we strongly recommend additional language to 
     address the special pharmacy needs of beneficiaries residing 
     in nursing facilities who are not dually-eligible for 
     Medicare and Medicaid. Such language would require the 
     Secretary of Health and Human Services to review the current 
     standards of practice for pharmacy services provided to 
     patients in nursing facilities and to report to the Congress 
     its

[[Page S8641]]

     findings prior to implementation of the new prescription drug 
     benefit. This report would include a detailed description of 
     the Department's plans to implement the provisions of this 
     Act in a manner consistent with applicable state and federal 
     laws designed to protect the safety and quality of care of 
     nursing facility patients. Such provisions were included in 
     legislation approved by the House Ways and Means and Energy 
     and Commerce Committees, and we would respectfully request 
     that you adopt similar language.
       We appreciate your leadership in carefully considering the 
     multitude of complex issues related to the creation of a new 
     Medicare prescription drug benefit. We are grateful for the 
     chance to work constructively with you to protect patient 
     safety and to ensure the continued provision of quality 
     pharmacy services to the most vulnerable seniors.
       If you have any questions or would like additional 
     information, please feel free to contact me. Again, thank you 
     for your efforts to ensure patient safety and promote quality 
     care for Medicare beneficiaries residing in nursing 
     facilities.
           Sincerely,
                                                     Paul Baldwin,
                                               Executive Director.
  Mr. KENNEDY. One of the great strengths of Medicare is that it is for 
everyone. Rich and poor alike contribute to the system. Rich and poor 
alike benefit from it.
  At bottom, Medicare is a commitment to every senior citizen and every 
disabled American that we will not have two-class medicine in America. 
When a senior citizen enters a hospital, Medicare pays the same amount 
for their care whether they are a pauper or a millionaire. When a 
senior citizen goes to a doctor, she has the peace of mind of knowing 
that Medicare has the same obligation to pay for her treatment no 
matter what her financial circumstances--and the doctor has no 
financial interest in rationing her care according to the contents of 
her bank account.
  Through the Medicaid Program, we do try to provide extra help for 
those who are poor. But the fact that Medicaid provides extra 
assistance for the poor does not reduce Medicare's obligation to 
provide equal treatment for all. Medicare always has primary payment 
responsibilities for the service it covers. Medicaid is always 
supplementary.
  Medicaid provides critical help to the poor and elderly, but it does 
not provide the same reliable guarantees of equal treatment that 
Medicare does. Under Medicaid, States have limited the number of days 
of hospital care they would provide or the number of doctor visits they 
will support. States have placed arbitrary limits on the number of 
prescriptions.
  This legislation sets an undesirable precedent for treatment of poor 
senior citizens who are eligible for both Medicare and Medicaid. For 
every other benefit, these senior citizens enroll in Medicare, and 
Medicaid supplements Medicare's coverage. But for this benefit, the 
bill says that the poor are excluded from Medicare. The only benefits 
they get are from the Medicaid Program. Medicare is for all senior 
citizens who paid into the program during their working years--not just 
some senior citizens. And it should stay that way.
  This amendment rights this wrong. It says we will not take away the 
Medicare that the poor have earned by a lifetime of hard work.
  The PRESIDING OFFICER. Who yields time?
  Mr. BINGAMAN addressed the Chair.
  The PRESIDING OFFICER. Who yields time to the Senator from New 
Mexico?
  Mr. BINGAMAN. Mr. President, I request that the manager allot me 5 
minutes.
  Mr. BAUCUS. Mr. President, I yield 5 minutes to the Senator from New 
Mexico.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. I thank the Senator from Montana.


                           Amendment No. 1066

  Mr. President, I would like to take this opportunity to explain 
amendment No. 1066, which is scheduled to be one of the amendments 
considered in this next block of amendments.
  Mr. President, I am concerned that the prescription drug coverage 
included in S. 1 is not sufficient to fully meet the needs of our 
seniors and that those seniors who elect to participate in Part D and 
get this prescription drug benefit will be restricted from purchasing 
supplemental coverage.
  The Kaiser Family Foundation estimates that in 2006--which is the 
year this legislation really takes effect, this benefit occurs--the 
average Medicare beneficiary will spend $3,160 per year on prescription 
drugs. Under the current plan, those individuals will have $1,700 that 
same year in out-of-pocket expenses in addition to the $420 they pay in 
Part D premiums. Therefore, the average Medicare beneficiary who elects 
Part D will have approximately $2,100 per year in out-of-pocket 
expenses. This translates, of course, into $175 a month. That is a 
significant expenditure for a lot of individuals and couples on a fixed 
income.
  It would seem reasonable to allow these individuals who want to 
protect themselves against unpredictable and increasing prescription 
drug expenses to purchase supplemental insurance coverage that would 
allow additional prescription drugs to be purchased.
  Medigap was designed to fill the gaps in Medicare. A sizable gap 
exists in the prescription drug benefit we are offering in this bill. 
Yet the current bill specifically prohibits seniors from filling that 
gap with a Medigap policy.
  Section 103 of S. 1, which is the bill we are considering, explicitly 
prohibits people who elect Part D prescription drug coverage from 
purchasing additional prescription drug coverage as part of any Medigap 
plan.
  Let me give you the quotation out of the bill. It says:

       No Medicare supplemental policy that provides coverage of 
     expenses for prescription drugs may be sold, issued, or 
     renewed under this section to an individual who is enrolled 
     under Part D.

  So you essentially have a choice: Am I going to enroll in this new 
Part D and get this benefit and therefore forego any Medigap policy or 
am I going to stay out?
  We are telling seniors whose cost burden, on average, will be $2,100 
a year, and 10 percent of whom are likely to have out-of-pocket 
expenses of $4,000 or more per year, they will not be allowed to seek 
additional prescription drug relief.
  The amendment I am offering would give seniors the option of 
purchasing more prescription coverage as part of a comprehensive 
Medigap plan. The amendment calls on the National Association of 
Insurance Commissioners to devise two new Medigap plans that would each 
offer prescription drug coverage to beneficiaries who elect Part D.
  There are currently 10 standard Medigap plans. They are designated A 
through J, and they offer insurance to seniors. Of those, plans H, I, 
and J offer prescription drug coverage in addition to Part A and Part B 
wraparounds. Of these, H and J are the most commonly elected plans.
  Under S. 1, the way it now stands, seniors who elect Part D would no 
longer qualify for H, I, or J. However, if the amendment is adopted, 
the two new policies designed by the National Association of Insurance 
Commissioners would be similar to the current Medigap policies of H and 
J, but their prescription drug coverage would be tailored to wrap 
around the Part D coverage. So seniors who are currently H or J 
subscribers would have the option of electing Part D and still 
maintaining a Medigap plan similar to what they have now.
  The amendment would give the National Association of Insurance 
Commissioners 18 months to develop and report back on these two new 
plans. In my view, it would be a substantial improvement to the current 
bill.
  As I said, my amendment will give the National Association of 
Insurance Commissioners 18 months to develop and report back on two new 
plans. The NAIC is the appropriate body to develop these plans because 
they have a system already in place for doing so with appropriate 
representation from all interested and affected parties. The NAIC can 
best determine how the benefits proposed in this amendment can be 
designed in order to avoid over-utilization and to coordinate with the 
existing medigap benefit packages. They were the body employed to 
develop the current Medigap plans A through J and they are the body 
best equipped to develop these two new plans.
  This amendment is similar to language already included in the House 
version of the bill and thus already has a great deal of support in the 
House of Representatives.
  This amendment also provides a provision to stabilize the Medigap 
market

[[Page S8642]]

during this time of transition. The current bill states that seniors 
who are enrolled in H, I, or J at the time when they elect Part D will 
be displaced from their current Medigap plans and given open enrollment 
into any other Medigap plan A-G offered in their State. Our amendment 
will still guarantee them the option of enrolling in substitute 
coverage without the risk of discrimination based on age, health 
status, utilization, etc. However, our amendment will reduce the chaos 
of this transition time by keeping the majority of Medigap subscribers 
with their current carriers.
  Let me explain. Beneficiaries displaced from H, I, or J will have the 
option of choosing any other Medigap plan--A-G--that their carrier 
offers or one of the two new plans. If their current carrier does not 
choose to offer one of the new plans then they will have the option of 
switching carriers in order to obtain a medigap policy that includes 
prescription coverage. Thus, the majority of seniors will be staying 
with their current carriers and thus, those carriers will be better 
able to predict the affect of this shift and better able to ease the 
transition for their subscribers.
  This is a simple amendment that should elicit very little 
controversy. People may raise concerns because it will be difficult to 
construct a standardized wrap around benefit to compliment Part D when 
Part D is not standardized. But this is not a reason to deny people 
access to supplemental coverage. Rather, we are giving the NAIC 18 
months to put together such a plan.
  Consumer groups such as the Consumer Union and Medicare Advocacy 
support our amendment because it provides much needed additional 
coverage options for our Nation's seniors. Likewise, insurance carriers 
like it because it allows them to continue to provide a service that 
they have been providing up until this point and yet it does not force 
them to offer these new plans if they do not see them as viable. The 
cost of the amendment should be negligible as it is not adding any 
additional Government expenditure nor expediting a beneficiary's trip 
to the catastrophic threshold. This amendment simply gives seniors an 
opportunity to continue to seek the insurance industry an opportunity 
to meet the needs of our seniors not met by Medicare Part D.
  Mr. President, I ask my colleagues to review this amendment before 
they vote. I think it is an excellent amendment.
  I ask them to join me in supporting it.
  The PRESIDING OFFICER. Who yields time?


                           Amendment No. 1011

  Mr. GRAHAM of Florida. Mr. President, I rise to speak on an issue 
that will come before the Senate shortly. That is an amendment to 
strike the language from this legislation which is found in section 
605, the legal immigrant child health provision. Let me give the 
background on section 605.
  What this legislation would do would be to allow States on a State 
option basis to elect to provide health care for pregnant women for the 
period of their pregnancy, plus 60 days thereafter, and immigrant 
children. In both categories we are talking about legal immigrants, not 
people who have arrived outside the system and undocumented. These are 
individuals who have come to the United States under all of the 
procedures that allow for legal immigration, with the most prominent 
category being for family reunification.
  The restoration of this has already been considered by the Senate 
Finance Committee, first in 2001, then in June of 2002, and most 
recently in the consideration of this legislation. This provision was 
sustained in the chairman's mark, as it had been placed by Senator 
Grassley and Senator Baucus, by a vote of 13 to 8. There has been both 
consideration and approval of this provision by the Finance Committee.
  It has been alleged that the provision of these services to legal 
immigrants will encourage illegal immigration. We are talking 
exclusively about pregnant women and children who have entered the 
United States on a legal basis.
  Prior to 1996, there was no restriction on health care benefits for 
legal immigrants. We are now carving out from the current exclusion for 
health care two categories, which are both humane and very much in the 
public interest, that pregnant women have adequate access to health 
care and that children grow up with adequate health care.
  It has been alleged that there are a number of benefits which have 
also been made available to legal immigrants, including emergency 
medical services, Head Start programs, foster care, school lunches, and 
food stamps. Those can be debated on their own merits but they are no 
substitute for providing to legal immigrants, children, and pregnant 
women a place to get appropriate health care.
  It has also been stated that this should be a responsibility of the 
sponsor.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. GRAHAM of Florida. May I have 30 seconds to close?
  Mr. BAUCUS. Mr. President, I ask unanimous consent that the Senator 
have 30 additional seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM of Florida. The Immigration and Naturalization Service 
under the current law has limited the kinds of public benefits that are 
relevant to the so-called public charge finding. INS officers place no 
weight on the receipt of noncash public benefits when determining 
whether an immigrant will be a public charge on society. This 
provision, section 605, is consistent with current national immigration 
policy. Therefore, I urge the defeat of this amendment.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. I believe our side has 2 minutes remaining. I ask 
unanimous consent for 4 minutes and yield the Senator from Alabama 2 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, included in the Medicare prescription 
drug reform bill in section 605 is a Medicaid reform of welfare 
benefits for noncitizens, reversing a policy adopted by this Senate in 
1996 by a vote of 74 to 24. Section 605 is a very substantial change in 
our current policy. It will cost, according to CBO estimates, $500 
million over just 3 years. It is not to be taken lightly. Frankly, we 
haven't had debate on it.
  I have offered an amendment that would strike the existing language 
in section 605, along with a sense of the Senate that this matter go 
back to the Finance Committee for hearings this fall, the time when the 
Finance Committee plans to be addressing Medicaid welfare reform. That 
is what this is. This is Medicaid welfare reform, not Medicare senior 
citizens reform.
  This is clearly unconnected to the purpose of the bill. It was 
slipped in as some sort of compromise. We ought not to allow that to 
happen, to erode a very important part of the 1996 Welfare Reform Act. 
The administration, which is very favorable to matters that would help 
immigrants in this country, opposes this change. They say it should be 
done, if at all, as part of the welfare reform of this fall.

  That is why our sense of the Senate calls on the Finance Committee to 
reevaluate it as part of their requirement this fall on reform welfare. 
Millions of people come to this country legally. They come here with 
sponsors. Those sponsors say they will pay for the medical welfare 
needs of those people they sponsor. That is by affidavit and it should 
be honored, not undercut.
  Mr. NICKLES. Mr. President, I wish to compliment Senator Sessions for 
his leadership. I urge my colleagues to vote in favor of the Sessions 
amendment to strike out this provision that does not belong in a 
Medicare bill.
  This is a Medicaid provision. This is a welfare provision. We are 
going to reauthorize welfare later this summer. It should be considered 
at that time. This is part of the reforms that were made in 1996 when 
we passed the welfare reform act, one of the most successful bills we 
ever passed. If we are going to undermine that, do it with a little 
consideration. The administration opposes this because it doesn't 
belong here, and it is bad policy. This turns immigration policy on its 
head.
  Let me read the current law on immigration policy. For a legal 
immigrant who comes into this country, it is required that the sponsor 
of that immigrant sign an affidavit of support to the U.S. Department 
of Justice which states:

       By signing this form, you, the sponsor, agree to support 
     the intending immigrant

[[Page S8643]]

     and any spouse or children immigrating with him or her, and 
     to reimburse any Government agency or private entity that 
     provides these sponsored immigrants with Federal, State, or 
     local means-tested public benefits.

  This provision in the underlying bill would turn this law on its head 
and would basically take hundreds of millions of dollars away from 
Medicare recipients and give them to immigrants. So this is changing 
immigration law and Medicaid law. It needs to be dealt with in the 
Medicaid bill and welfare reform bill. It doesn't belong in this bill.
  I urge my colleagues to vote in favor of the Sessions amendment.
  Mrs. CLINTON. I rise to urge my colleagues to defeat this amendment.
  In proposing this amendment, Senator sessions argues that the 
restoration of health benefits to legal immigrants has not been fully 
reviewed or discussed. he also argues that SCHIP and Medicaid 
provisions are welfare reform measures and therefore not germane to the 
prescription drug bill. The amendment also states that Congress 
deliberately limited benefits available to legal immigrants when it 
removed these benefits in 1996.
  I respectfully disagree with all of these three assertions.
  First of all, the Senate Finance Committee has already extensively 
reviewed this issue. In 2001, the Finance Committee held a series of 
hearings on health coverage for the uninsured, including legal 
immigrants. During the TANF reauthorization mark-up in June 2002, there 
was a full debate on the restoration of health benefits to legal 
immigrants, and the Immigrant Children's Health Improvement Act passed 
as an amendment by a vote of 12 to 9. This year, during Finance 
Committee mark-up of the prescription drug bill, there was once again 
full debate on the restoration of health benefits to legal immigrants. 
Senator Nickles offered an amendment to strike the immigrant children's 
health provision from the chairman's mark and that amendment failed by 
a vote of 8 to 13.
  Second, I disagree with Senator Sessions' argument that Section 605 
of the bill is not germane to Medicare prescription drug legislation. 
Every time this sort of provision comes to a vote, my colleagues on the 
other side of the aisle question the vehicle. When the immigrant child 
health provisions came up in committee last year, as part of the TANF 
reauthorization mark-up, Senator Hatch remarked that, ``If we start 
playing with health care policy, this bill isn't going to go through.'' 
This year, Senator Sessions is saying that TANF reauthorization is the 
appropriate vehicle. I ask my colleagues on the other side of the aisle 
then--which one is the appropriate vehicle?
  In fact, the restoration of health benefits to legal immigrants is 
also a major component of the effort to add a prescription drug benefit 
under Medicare. Senators Grassley and Baucus realized this when they 
included this provision in the prescription drug mark as part of a 
compromise agreement that included both Senator Kyl's undocumented 
aliens provision to reimburse hospitals for the cost of treating 
undocumented aliens and Senator Graham's legal immigrants provision.
  Finally, benefits to legal immigrants were cut in 1996 as a cost-
saving measure, not as a matter of welfare reform. Section 605 of the 
underlying bill is also consistent with other policies approved by 
President Bush. Last year, the President signed legislation restoring 
food stamp benefits for legal immigrant children. The immigrant child 
health provisions would make these same children eligible for Medicaid 
and SCHIP. In an interview with the Associated Press in May 2002, Tommy 
Thompson, Secretary of the Department of Health and Human Services, 
stated that he had no ``philosophical objection'' to lifting the ban on 
providing health care benefits to legal immigrants.
  Senator Sessions' amendment also has significant dire consequences 
for women and children, and could add costs to the Medicaid program, 
which I am certain that Senator Sessions did not intend. Current 
restrictions prevent thousands of legal immigrant children and pregnant 
women from getting the same access to preventive health care services 
that they would have if they were U.S. citizens. As a result of the 
restrictions, immigrant children have fewer opportunities to see a 
pediatrician and receive treatment before minor illnesses become 
serious and life-threatening. Families who are unable to get basic 
preventive care for their children have little choice but to turn to 
emergency rooms--the least cost-effective place to provide care--when 
their children become sick. Similarly, without prenatal care, a woman 
may give birth to a baby with low-birth weight, placing the baby at 
risk and resulting in hundreds of thousands of dollars in neonatal 
intensive care costs.
  Frankly, I am saddened that we must fight over a bipartisan, 
thoughtful and extensively reviewed provision that will protect the 
health of children who legally came to our country and had no control 
over the length of time they were legal immigrants. We must ensure that 
it is defeated.
  Mr. DASCHLE. Mr. President, with all deference to my colleague from 
Alabama, I strongly oppose this amendment to strike the provisions that 
would allow States to cover legal immigrants under Medicaid and SCHIP. 
As health care measures, these provisions are an appropriate addition 
to this legislation, and I am grateful that the chairman of the Senate 
Finance Committee included them in his bill.
  Legal immigrants were banned from receiving Federal benefits under a 
number of programs, including Medicaid, for 5 years. The argument was 
made that people shouldn't come to this country if they are going to be 
a public charge.
  But the reality is that legal immigrants don't come here for our 
benefits. They come because they want to work so they can make better 
lives for themselves and for their children. They work hard and they 
make a vital contribution to our economy. Many are forced to take low-
paying jobs. And many of these jobs do not provide health insurance.
  Immigrant families need access to health insurance just as much as 
citizen families. They are also just as deserving of this coverage as 
citizen families. Immigrants work hard. They pay taxes. They contribute 
to their communities. Immigrant children are also required to register 
for the Selective Service when they turn 18. According to the American 
Immigrant Law Foundation, 60,000 legal immigrants are on active duty in 
the U.S. Armed Forces.
  Now, when an immigrant woman becomes pregnant, or her child gets 
sick, she has few places to turn except to emergency care, which is the 
most expensive means of providing health care. Many States have 
realized that this is not an acceptable way to address the health care 
needs of these families. Some 20 States now provide health care 
services to legal immigrants using their own funds. So the burden of 
caring for these families has been transferred to States and hospitals.
  To respond to this situation, Senator Graham introduced S. 845, the 
Immigrant Children's Health Improvement Act, or ICHIA, which simply 
allows States to use Federal Medicaid and SCHIP funding to provide 
coverage for pregnant women and children who are legal immigrants. The 
chairman of the Finance Committee included this provision to give 
States this option for fiscal years 2005, 2006, and 2007. This proposal 
has strong bipartisan support in both the Senate and in the House. It 
was adopted on a bipartisan basis last year in the Finance Committee, 
and a bipartisan group of Finance Committee members voted against 
stripping this provision from this bill this year.
  The administration has suggested that this proposal would somehow 
create a new burden on the States. In fact, the proposal only gives 
States the option to provide this coverage, and allows them to use 
Federal resources to do so, thus giving them significant fiscal relief. 
No new burden would be imposed on the States. The National Governors 
Association and the National Conference of State Legislatures both 
support restoring these benefits. Even Governor Bush of Florida has 
indicated he supports this proposal.
  More than 5 million children live in poor or ``near-poor'' noncitizen 
families. That is more than one-quarter of the total population of poor 
or ``near-poor'' children. Almost half of all low-income immigrant 
children are uninsured and they are more than twice as likely to be 
uninsured as low-income citizen children with native-born parents.

[[Page S8644]]

  Many of these children will eventually become American citizens. By 
denying all but emergency health care, we increase the risk that these 
children will suffer long-term health consequences, which could reduce 
their ability to learn and develop, and become productive, contributing 
citizens.
  It is also worth noting that the Medicaid/SCHIP ban also affects 
citizen children living in immigrant families. As many as 85 percent of 
immigrant families have at least one child who is a citizen. Although 
many of these children are eligible for Medicaid and SCHIP, receipt 
among eligible citizen children of noncitizen parents is significantly 
below that for other poor children. Parents may be confused about their 
children's eligibility, or concerned that somehow claiming these 
benefits will affect the status of other family members.
  Making sure that pregnant immigrant women, and their children, have 
access to health care, including preventive care, is an investment in 
the future workforce of this Nation. I believe providing health care 
for all of our citizens, including pregnant women and children who are 
immigrants, is vital for our future economic strength. It is also the 
right thing to do. For that reason, I urge my colleagues to oppose this 
amendment.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from Montana is 
recognized.
  Mr. BAUCUS. Mr. President, I know we have an agreement that the vote 
will start at about 5 o'clock. I ask unanimous consent to speak for 2 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Amendment No. 975, as modified

  Mr. BAUCUS. Mr. President, I will divide my 2 minutes between two 
issues. First is the dual-eligible issue, concerning the amendment 
offered by the Senator from West Virginia, Mr. Rockefeller. I have a 
lot of sympathy for what he is trying to do. In fact, my preference 
would be that low-income senior citizens get benefits under Medicare, 
not Medicaid.
  Regrettably, we tried to strike a balance at this time so that the 
money spent on the bill, the $400 billion, was spent more on seniors, 
other beneficiaries, so they get better benefits, rather than spending 
the money in States to, in effect, bail out the States for their 
responsibilities under Medicaid. When we go to conference, I plan to do 
what I can, along with the chairman, to work this issue out. I think 
the Senator from West Virginia made a very good point.


                           Amendment No. 1011

  On the other issue, the Sessions amendment, this provision is a 
health care provision, not a welfare provision. It is whether legal 
immigrants should get Medicaid benefits. That is all it comes down to.
  My view is that it is the right policy. It is not neat and tidy, or 
perhaps not on the right bill, but it is something that should be done. 
It is the right thing to do. I urge Senators to not vote in favor of 
the Sessions amendment.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that we delay 
the vote so I can do some amendments that have been agreed to--a 
bipartisan list of amendments--to get them out of the way at this time.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Amendment No. 1033, As Modified

  Mr. GRASSLEY. Mr. President, I send a modification of Senator 
Mikulski's amendment to the desk on municipal health services and ask 
unanimous consent that it be modified.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendment (No. 1033), as modified, is as follows:

       At the end of title VI, add the following:

     SEC. ______. EXTENSION OF MUNICIPAL HEALTH SERVICE 
                   DEMONSTRATION PROJECTS.

       The last sentence of section 9215(a) of the Consolidated 
     Omnibus Budget Reconciliation Act of 1985 (42 U.S.C. 1395b-1 
     note), as previously amended, is amended by striking 
     ``December 31, 2004'', and inserting ``December 31, 2006''.


                    Amendment No. 1067, As Modified

  Mr. GRASSLEY. Mr. President, I send a modification to Senator 
Lincoln's amendment No. 1067 on kidney disease to the desk and ask 
unanimous consent that it be modified.
  The PRESIDING OFFICER. Is there objection?
  Without objection, the amendment is so modified.
  The amendment (No. 1067), as modified, is as follows:

       On page 510, after line 18, add the following:

     SEC. ____. MEDICARE COVERAGE OF KIDNEY DISEASE EDUCATION 
                   SERVICES.

       (a) Coverage of Kidney Disease Education Services.--
       (1) In general.--Section 1861 of the Social Security Act 
     (42 U.S.C.1395x) is amended--
       (A) in subsection (s)(2)--
       (i) in subparagraph (U), by striking ``and'' at the end;
       (ii) in subparagraph (V)(iii), by adding ``and'' at the 
     end; and
       (iii) by adding at the end the following new subparagraph:
       ``(W) kidney disease education services (as defined in 
     subsection (ww));''; and
       (B) by adding at the end the following new subsection:

                  ``Kidney Disease Education Services

       ``(ww)(1) The term `kidney disease education services' 
     means educational services that are--
       ``(A) furnished to an individual with kidney disease who, 
     according to accepted clinical guidelines identified by the 
     Secretary, will require dialysis or a kidney transplant;
       ``(B) furnished, upon the referral of the physician 
     managing the individual's kidney condition, by a qualified 
     person (as defined in paragraph (2)); and
       ``(C) designed--
       ``(i) to provide comprehensive information regarding--
       ``(I) the management of comorbidities;
       ``(II) the prevention of uremic complications; and
       ``(III) each option for renal replacement therapy 
     (including peritoneal dialysis, hemodialysis (including 
     vascular access options), and transplantation); and
       ``(ii) to ensure that the individual has the opportunity to 
     actively participate in the choice of therapy.
       ``(2) The term `qualified person' means--
       ``(A) a physician (as described in subsection (r)(1));
       ``(B) an individual who--
       ``(i) is--
       ``(I) a registered nurse;
       ``(II) a registered dietitian or nutrition professional (as 
     defined in subsection (vv)(2));
       ``(III) a clinical social worker (as defined in subsection 
     (hh)(1));
       ``(IV) a physician assistant, nurse practitioner, or 
     clinical nurse specialist (as those terms are defined in 
     subsection (aa)(5)); or
       ``(V) a transplant coordinator; and
       ``(ii) meets such requirements related to experience and 
     other qualifications that the Secretary finds necessary and 
     appropriate for furnishing the services described in 
     paragraph (1); or
       ``(C) a renal dialysis facility subject to the requirements 
     of section 1881(b)(1) with personnel who--
       ``(i) provide the services described in paragraph (1); and
       ``(ii) meet the requirements of subparagraph (A) or (B).
       ``(3) The Secretary shall develop the requirements under 
     paragraph (2)(B)(ii) after consulting with physicians, health 
     educators, professional organizations, accrediting 
     organizations, kidney patient organizations, dialysis 
     facilities, transplant centers, network organizations 
     described in section 1881(c)(2), and other knowledgeable 
     persons.
       ``(4) In promulgating regulations to carry out this 
     subsection, the Secretary shall ensure that such regulations 
     ensure that each beneficiary who is entitled to kidney 
     disease education services under this title receives such 
     services in a timely manner that ensures that the beneficiary 
     receives the maximum benefit of those services.
       ``(5) The Secretary shall monitor the implementation of 
     this subsection to ensure that beneficiaries who are eligible 
     for kidney disease education services receive such services 
     in the manner described in paragraph (4).''.
       (2) Payment under physician fee schedule.--Section 
     1848(j)(3) of such Act (42 U.S.C. 1395w-4(j)(3)) is amended 
     by inserting ``, (2)(W)'', after ``(2)(S)''.
       (3) Payment to renal dialysis facilities.--Section 1881(b) 
     of such Act (42 U.S.C. 1395rr(b)), as amended by section 
     433(b)(5), is further amended by adding at the end the 
     following new paragraph:
       ``(13) For purposes of paragraph (7), the single composite 
     weighted formulas determined under such paragraph shall not 
     take into account the amount of payment for kidney disease 
     education services (as defined in section 1861(ww)). Instead, 
     payment for such services shall be made to the renal dialysis 
     facility on an assignment-related basis under section 
     1848.''.
       (4) Annual report to congress.--Not later than April 1, 
     2004, and annually thereafter, the Secretary of Health and 
     Human Services shall submit to Congress a report on the 
     number of medicare beneficiaries who are entitled to kidney 
     disease education services (as defined in section 1861(ww) of 
     the Social Security Act, as added by paragraph (1))

[[Page S8645]]

     under title XVIII of such Act and who receive such services, 
     together with such recommendations for legislative and 
     administrative action as the Secretary determines to be 
     appropriate to fulfill the legislative intent that resulted 
     in the enactment of that subsection.
       (b) Effective Date.--The amendments made by this section 
     shall apply to services furnished on or after January 1, 
     2004.