[Congressional Record Volume 149, Number 116 (Thursday, July 31, 2003)]
[Senate]
[Pages S10679-S10680]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BINGAMAN (for himself and Mr. Domenici):
  S. 1547. A bill to amend title XXI of the Social Security Act to make 
a technical correction with respect to the definition of qualifying 
State; considered and passed.

  Mr. BINGAMAN. Mr. President, last evening, I introduced two bills 
with Senator Domenici and yet another one today to address a technical, 
but very important problem that the State of New Mexico and a number of 
other States, including that of the Majority Leader, have faced with 
respect to the Children's Health Insurance Program, or CHIP. When CHIP 
was established by President Clinton and the Congress in 1997, an 
inequity was built into the program whereby certain states that had 
been more progressive and had expanded coverage to children through 
Medicaid prior to the enactment of the bill were penalized.
  In the last Congress and again this year, I introduced the 
``Children's Health Equity Act of 2003'' to address this problem for a 
number of States, including New Mexico, Vermont, Washington, and 
Tennessee. Our states have been unable to fully access Federal CHIP 
funds because the previous expansion of Medicaid to children was not 
recognized or ``grandfathered,'' while certain other States such as New 
York, Florida, and Pennsylvania were explicitly ``grandfathered'' in 
and their State expansions to children were allowed to be covered with 
CHIP dollars.
  The National Governors' Association has long recognized this inequity 
and has, in fact, a policy that read, ``The Governors believe that it 
is critical that innovative states not be penalized for having expanded 
coverage to children before the enactment of S-CHIP, which provides 
enhanced funding to meet these goals. To this end, the Governors 
support providing additional funding flexibility to states that had 
already significantly expanded coverage to the majority of uninsured 
children in their states.''
  S. 621, the ``Children's Health Equity Act,'' did precisely that and 
the critical language from our legislation was included in S. 312 by 
Senators Rockefeller and Chafee, which addressed both expired and 
expiring CHIP funds and the problem addressed by S. 621. We appreciated 
their recognition of that issue and supported the passage of that 
legislation after an extensive set of negotiations and compromises on 
the language.
  For New Mexico, an important issue is that our State expanded 
coverage up to 185 percent of poverty prior to the enactment of CHIP. 
Because of this, the children in our State between 100 percent and 185 
percent of poverty are ineligible for CHIP. Thus, New Mexico has been 
allocated $266 million from CHIP between fiscal years 1998 and 2002, 
and yet has only been able to spend slightly over $26 million as of the 
end of the last fiscal year. In other words, New Mexico has been 
allowed to spend less than 10 percent of its Federal CHIP allocations. 
This, despite the fact our State ranks 2nd in the Nation in the 
percentage of children who are uninsured.
  It is a travesty that money set-aside for New Mexico to address our 
children's coverage problem is not available to be spent and is thereby 
redistributed to other States who have far lower uninsured rates and 
whose children between 100 and 185 percent of poverty are eligible for 
Federal CHIP dollars. The children in those States are certainly no 
more worthy of health insurance coverage than the children of New 
Mexico.
  The consequences for the children of New Mexico are enormous. 
According to the Census Bureau, New Mexico has an estimated 114,000 
uninsured children. Put another way, almost 21 percent of all the 
children in New Mexico are uninsured, despite the fact New Mexico has 
expanded coverage all the way to 235 percent of poverty. Again, this is 
the 2nd highest rate of uninsured children in the country.
  This is a result of the fact that an estimated 80 percent of the 
uninsured children in New Mexico are below 200 percent of poverty. 
These children are often eligible for either Medicaid or CHIP but 
currently unenrolled. With the exception of those few children between 
185 and 200 percent of poverty who are eligible for the enhanced 
federal CHIP dollars, all of the remaining children below 185 percent 
of poverty in New Mexico are denied CHIP funding despite their need.
  For New Mexico, the Senate language that was in S. 621 and included 
in S. 312 would have allowed New Mexico to spend up to 20 percent of 
its Federal CHIP allotments on children enrolled between 150 and 185 
percent of poverty. Unfortunately, the House of Representatives chose 
to modify the Senate language in such a manner through the introduction 
and passage of H.r. 2854 that New Mexico may no longer be eligible.
  The House of Representatives, which did not include language 
addressing New Mexico's problem in the first place, chose to edit the 
Senate language that ``grandfathered'' States that had previous 
expanded coverage ``up to'' 185 percent of poverty and above and 
replaced it with language that the State had to have expanded coverage 
to ``at least'' 185 percent of poverty.
  This sounds rather technical, but this slight difference may 
ironically allow all the other states our bill intended to help, who 
expanded coverage beyond 185 percent of poverty, such as Vermont and 
Washington, to be ``grandfathered'' but not New Mexico. It is my 
contention, after reviewing the materials from our State that our State 
expanded coverage to 185 percent of poverty and operates a full 
Medicaid benefit at 185 percent of poverty and therefore should qualify 
as a State to be ``grandfathered.'' Unfortunately, the language change 
has left the Centers for Medicare and Medicaid Services, or CMS, 
uncertain of our State's eligibility, as some believe the State has 
only some up to 185 percent of poverty, or just short of that level, 
and therefore does not meet the test of ``at least'' 185 percent of 
poverty.
  For six long years, the States of Washington, New Mexico, Vermont, 
and others have sought to fix the inequity in CHIP. Senator Slade 
Gorton of Washington had the original legislation to fix this problem 
and I picked up, modified, and reintroduced that legislation in the 
last two sessions of Congress. After six long years, to now find that 
New Mexico may be the only State excluded by the House change and 
0.0001 percentage points, is both outrageous and unacceptable.

  I contend that the Centers for Medicare and Medicaid Services, or 
CMS, can still make a determination that New Mexico meets this revised 
standard under H.R. 2854 and urge them to do so as soon possible.
  However, in the meantime, since New Mexico's status is now in 
question. I introduced two bills last night and another one today with 
Senator Domenici that all clarify that New Mexico qualifies. The first 
includes New Mexico as a ``qualified state'' explicitly. This would 
leave no question at all. The second bill clarifies that a State found 
to be a partial percentage point below 185 percent of poverty would 
round up to the nearest number, that being 185 percent of poverty, and 
be eligible. That would also undoubtedly ensure New Mexico's 
eligibility. In order to release our hold, I have asked that the bill I 
introduced changing the percentage that a qualified state must be 
changed from 185 to

[[Page S10680]]

184 percent of poverty be approved by the State in conjunction with 
H.R. 2854. Unfortunately, our bill will then have to be taken up and 
passed by the House of Representatives and signed into law by the 
President.
  I have received a letter from Chairman Tauzin, and Ranking Member 
Dingell of the House Energy and Commerce Committee ensuring the intent 
of H.R. 2854 is to include New Mexico and provides their commitment 
that they will ensure any technical problem our State has with the 
language will be fixed immediately upon return from the August recess. 
I thank them for their commitment to New Mexico.
  Once again, many States are accessing their CHIP allotments to cover 
kids at poverty levels far below New Mexico's current or past 
eligibility levels. The children in those states are certainly no more 
worthy and the children of New Mexico deserve better than they are 
getting from the Federal Government. I accept the commitment made by 
the leadership of the Senate Finance Committee and the House Energy and 
Commerce Committee to fix this problem and therefore urge the passage 
of both H.R. 2854 and the original legislation that I introduced today.
  I ask unanimous consent that the letter I referred to be printed in 
the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:
                                                    July 31, 2003.
     Senator Jeff Bingaman,
     Senator Pete Domenici,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senators Bingaman and Domenici:
       We are writing to provide our commitment to pass a 
     technical corrections bill in September that will provide the 
     proper technical fix that will allow New Mexico to use 20% of 
     their SCHIP allotments to pay for certain Medicaid eligible 
     children.
       Prior to House passage of H.R. 2854, CMS had provided 
     technical assistance that indicated that New Mexico would be 
     covered under the language in the bill. The authors of the 
     bill intended that New Mexico would be covered, and drafted 
     the language accordingly, based on the information provided 
     by CMS.
       We have subsequently learned that New Mexico may not be 
     able to use the 20% because of potential flaws in the 
     language contained in H.R. 2854. This was not our intent, and 
     we are committing to passing a technical corrections bill in 
     September that will allow New Mexico to use these funds.
           Sincerely,
     Congressman Billy Tauzin,
       Chairman of the House Committee on Energy & Commerce.
     Congressman John D. Dingell,
       Ranking Member of the House Committee on Energy & Commerce.
                                 ______