[Congressional Record Volume 151, Number 61 (Wednesday, May 11, 2005)]
[Senate]
[Pages S4938-S4958]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mrs. FEINSTEIN (for herself, Mrs. Hutchison, Mr. Durbin, Ms. 
        Snowe, Mr. Leahy, Mr. Feingold, and Mrs. Lincoln):
  S. 994. A bill to authorize the Attorney General to make grants to 
improve the ability of State and local governments to prevent the 
abduction of children by family members, and for other purposes; to the 
Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, I rise today along with Senators 
Hutchison, Durbin, Snowe, Leahy and Feingold to reintroduce the 
``Family Abduction Prevention Act of 2005,'' a bill to help the 
thousands of children who are abducted by a family member each year. We 
introduced this legislation last Congress, but it is just as needed 
today as it was then.
  Family abductions are the most common form of abduction, yet they 
receive little attention, and law enforcement often doesn't treat them 
as the serious crimes that they are.
  The Family Abduction Prevention Act of 2005 would provide grants to 
States for costs associated with family abduction prevention. 
Specifically, it would assist States with: costs associated with the 
extradition of individuals suspected of committing the crime of family 
abduction; costs borne by State and local law enforcement agencies to 
investigate cases of missing children; training for local and State law 
enforcement agencies in responding to family abductions; outreach and 
media campaigns to educate parents on the dangers of family abductions; 
and assistance to public schools to help with costs associated with 
``flagging'' school records.
  Each year, over 200,000 children--78 percent of all abductions in the 
United States--are kidnapped by a family member, usually a non-
custodial parent.
  More than half of abducting parents have a history of domestic 
violence, substance abuse, or a criminal record.
  Most State and local law enforcement agencies do not treat these 
abductions as serious crimes. Approximately 70 percent of law 
enforcement agencies do not have written guidelines on responding to 
family abduction and many are not informed about the Federal laws 
available to help in the search and recovery of an abducted child.
  Many people believe that a child is not in grave danger if the 
abductor is a family member. Unfortunately, this is not true, and this 
assumption can endanger a child's life. Research shows that the most 
common motive in family abduction cases is revenge against the other 
parent--not love for the child.
  The effects of family abduction on children are very traumatic. 
Abducted children suffer from severe separation anxiety. To break 
emotional ties with the left-behind parent, some family abductors will 
coach a child into falsely disclosing abuse by the other parent to 
perpetuate their control during or after abduction. The child is often 
told that the other parent is dead or did not really love them.
  As the child adapts to a fugitive's lifestyle, deception becomes a 
part of life. The child is taught to fear those that one would normally 
trust, such as police, doctors, teachers and counselors. Even after 
recovery, the child often has a difficult time growing into adulthood.
  Let me give an illustrative example about a girl named Rebekah. On 
Takeroot.org, a website devoted to victims of family abductions, 
Rebekah told the story of when her mother kidnapped her.
  Her mother was diagnosed as manic and was verbally abusive to her 
children and husband. Rebekah's father was awarded full custody of her 
and her brothers. However, one weekend, when Rebekah was 4-years-old, 
her mother took her to Texas.
  Her mother had all Rebekah's moles and distinguishing marks removed 
from her body and she had fake birth certificates made for Rebekah and 
herself. As Rebekah grew up, she was told that her father didn't love 
her and that her siblings didn't want to see her. When the FBI finally 
found Rebekah, she didn't remember her father and felt very alone.
  In addition, in many family abduction cases, children are given new 
identities at an age when they are still developing a sense of who they 
are. In extreme cases, the child's sexual identity is covered up to 
avoid detection.
  Abducting parents often deprive their children of education and much-
needed medical attention to avoid the risk of being tracked via school 
or medical records.
  In some cases, the abducting parent leaves the child with strangers 
at an underground ``safe house'' where health, safety, and other basic 
needs are extremely compromised.
  For example, in Lafayette, CA, two girls were abducted by their 
mother and moved from house to house under the control of a convicted 
child molester. Kelli Nunez absconded with her daughters, 6-year-old 
Anna and 4-year-old Emily in violation of court custody orders. Nunez 
drove her daughters cross-country, and then returned by plane to San 
Francisco, where she handed the children to someone holding a coded 
sign at the airport.
  The person holding the sign belonged to an underground vigilante 
group called the California Family Law Center led by Florencio Maning, 
a convicted child molester. For six months, Maning orchestrated the 
concealment of the Nunez girls with help from other people. Luckily, 
police were able to track down the girls, and they were successfully 
reunited with their father.
  California has been the Nation's leader in fighting family abduction. 
In my State, we have a system that places the responsibility for the 
investigation and resolution of family abduction cases with the County 
District Attorney's Office. Each California County District Attorney's 
Office has an investigative unit that is focused on family abduction 
cases. These investigators only handle family abduction cases and 
become experts in the process.
  However, most States lack the training and resources to effectively 
recover children who are kidnapped by a family member. According to a 
study conducted by Plass, Finkelhor and Hotaling, 62 percent of parents 
surveyed said they were ``somewhat'' or ``very'' dissatisfied with 
police handling of their family abduction cases.
  The ``Family Abduction Prevention Act of 2005'' would be an important 
first step in addressing this serious issue.
  I urge my colleagues to quickly act on this important legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 994

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

[[Page S4939]]

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Family Abduction Prevention 
     Act of 2005''.

     SEC. 2. FINDINGS.

       Congress findings that--
       (1) each year more than 203,000 children in the United 
     States (approximately 78 percent of all abducted children) 
     are abducted by a family member, usually a parent;
       (2) more than half of the parents who abduct their children 
     have a history of alcohol or substance abuse, a criminal 
     record, or a history of violence;
       (3) the most common motive for family abduction is revenge 
     against the other parent, not protecting the child's safety;
       (4) children who are abducted by family members suffer 
     emotional, psychological, and often physical abuse at the 
     hands of their abductors;
       (5) children who are victims of family abductions are 
     forced to leave behind family, friends, their homes, their 
     neighborhoods, their schools, and all that is familiar to 
     them;
       (6) children who are victims of family abductions are often 
     told that the parent who did not abduct the child has died, 
     does not love them, or will harm them;
       (7) children who are abducted by their parents or other 
     family members are sometimes forced to live in fear of 
     discovery and may be compelled to conceal their true 
     identity, including their real names, family histories, and 
     even their gender;
       (8) children who are victims of family abductions are often 
     denied the opportunity to attend school or to receive health 
     and dental care;
       (9) child psychologists and law enforcement authorities now 
     classify family abduction as a form of child abuse;
       (10) approximately 70 percent of local law enforcement 
     agencies do not have written guidelines for what to do in the 
     event of a family abduction or how to facilitate the recovery 
     of an abducted child;
       (11) the first few hours of a family abduction are crucial 
     to recovering an abducted child, and valuable hours are lost 
     when law enforcement is not prepared to employ the most 
     effective techniques to locate and recover abducted children;
       (12) when parents who may be inclined to abduct their own 
     children receive counseling and education on the harm 
     suffered by children under these circumstances, the incidence 
     of family abductions is greatly reduced; and
       (13) where practiced, the flagging of school records has 
     proven to be an effective tool in assisting law enforcement 
     authorities find abducted children.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Family abduction.--The term ``family abduction'' means 
     the taking, keeping, or concealing of a child or children by 
     a parent, other family member, or person acting on behalf of 
     the parent or family member, that prevents another individual 
     from exercising lawful custody or visitation rights.
       (2) Flagging.--The term ``flagging'' means the process of 
     notifying law enforcement authorities of the name and address 
     of any person requesting the school records of an abducted 
     child.
       (3) Indian tribe.--The term ``Indian tribe'' means any 
     Indian tribe, band, nation, or other organized group or 
     community, including any Alaska Native village or regional or 
     village corporation as defined in or established pursuant to 
     the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
     seq.), which is recognized as eligible for the special 
     programs and services provided by the United States to 
     Indians because of their status as Indians.
       (4) State.--The term ``State'' means each of the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the Commonwealth of the Northern Mariana Islands, 
     American Samoa, Guam, the Virgin Islands, any territory or 
     possession of the United States, and any Indian tribe.

     SEC. 4. GRANTS TO STATES.

       (a) Matching Grants.--The Attorney General shall make 
     grants to States for projects involving--
       (1) the extradition of individuals suspected of committing 
     a family abduction;
       (2) the investigation by State and local law enforcement 
     agencies of family abduction cases;
       (3) the training of State and local law enforcement 
     agencies in responding to family abductions and recovering 
     abducted children, including the development of written 
     guidelines and technical assistance;
       (4) outreach and media campaigns to educate parents on the 
     dangers of family abductions; and
       (5) the flagging of school records.
       (b) Matching Requirement.--Not less than 50 percent of the 
     cost of a project for which a grant is made under this 
     section shall be provided by non-Federal sources.

     SEC. 5. AUTHORIZATION OF APPROPRIATIONS.

       For the purpose of carrying out this Act, there are 
     authorized to be appropriated to the Attorney General 
     $500,000 for fiscal year 2006 and such sums as may be 
     necessary for each of fiscal years 2007 and 2008.
                                 ______
                                 
      Mr. BURNS (for himself, Mr. Enzi, and Mr. Thune):
  S. 996. A bill to improve the Veterans Beneficiary Travel Program of 
the Department of Veterans Affairs; to the Committee on Veterans' 
Affairs.
  Mr. BURNS. Mr. President, today, I join my colleagues, Senator Enzi 
and Senator Thune in introducing ``The Veterans Road to Health Care Act 
of 2005.''
  Montana veterans are often forced to travel hundreds of miles 
throughout our great State to receive the healthcare they need. Whether 
traveling to the only Veterans' Administration (VA) hospital located 
just outside of Helena at Fort Harrison, or to one of the eight 
Community Based Outpatient Clinics, CBOCs, the distances traveled by 
our veterans is great. We have a lot of dirt between light bulbs in 
Montana. This distance, combined with the increase in gas prices and 
the cost of lodging for veterans and their families adds up quickly. 
Many of these folks do not have any other option for their health care, 
and I think that anything which can be done to help those who are 
travel eligible would be appreciated.
  The Veterans Road to Health Care Act of 2005 would help ease this 
burden by raising the travel reimbursement rate for veterans who must 
travel to VA facilities for treatment. The current reimbursement rate 
of 11 cents per mile would be increased to the Federal rate of 40.5 
cents per mile. It seems only fair that veterans who have sacrificed so 
much for this country receive the same compensation as Federal 
employees.
  My bill would also allow payment under the Travel Beneficiary Program 
to veterans who cannot receive adequate care at their VA facility and 
are thereby forced to travel to another care center for specialized 
treatment. This referral to another facility for additional treatment 
often increases the costs for veterans from rural States like Montana, 
who must make another trip and sometimes travel even longer distances, 
for medical assistance.
  It is important that veterans in rural areas receive fair 
compensation, as they travel to obtain healthcare. I want to 
acknowledge Senators Enzi and Thune for joining me in support of this 
bill. Their work on this and all other veterans' issues is to be 
commended, and I look forward to working with them and my other Senate 
colleagues to pass this important piece of legislation. We need to do 
this for veterans in Montana and other rural areas across the country.
  Mr. ENZI. Mr. President, I rise today in strong support of the 
Veterans Road to Health Care Act of 2005 that I introduced with my 
colleagues Senator Burns and Senator Thune. This legislation would 
raise the travel reimbursement rate for veterans who must travel to 
Department of Veterans Affairs' hospitals for treatment. The current 
reimbursement rate is 11 cents per mile. This bill would raise that 
figure to match the Federal employees travel reimbursement rate which 
is 40.5 cents per mile.
  The average price for gas in Wyoming right now is $2.20 per gallon. 
The current rate of 11 cents per mile barely makes a dent in the 
expenses incurred by veterans who have no choice but to travel by 
automobile for health care. I have received numerous letters from 
veterans in Wyoming describing how difficult it is to work into their 
budget the money necessary to travel between their hometown and the VA 
hospital. Being able to access health care is vital; veterans should 
not have to choose between driving to receive needed treatment and 
being able to afford other necessities.
  In Wyoming, we have two VA Medical Centers, one in Cheyenne and one 
in Sheridan. Veterans have to travel to one of these facilities to be 
treated for health conditions and be covered by the health care plan 
that the government provides for them. This poses a serious problem in 
terms of travel expense, especially with the rise in gasoline prices. 
Some towns in Wyoming are over 300 miles away from the nearest VA 
facility. A veteran living in Riverton must drive 215 miles to the 
Sheridan facility or nearly 300 to the Cheyenne facility. This problem 
is then compounded when these facilities, which provide great service 
for our veterans, must refer the veterans to a larger hospital in Salt 
Lake City or Denver for additional treatment or procedures.
  This bill addresses the health care of veterans who have special 
needs. It would allow veterans who have been referred to a special care 
center by their VA physician to be reimbursed under

[[Page S4940]]

the Travel Beneficiary Program for their travel to the specialized 
facility. This applies only to those veterans who cannot receive 
adequate care at their VA facility.
  This legislation is important to all veterans, but it is especially 
significant to those veterans who live in rural states, like my home 
State of Wyoming. Rural States are less populated; there is greater 
distance between towns and far fewer options for transportation. 
Wyoming has miles and miles of miles and miles. Cars are the main mode 
of transportation and many times the only option.
  It is our duty to compensate our servicemen and women for the 
sacrifices that they made defending the freedoms of this country. With 
our current recruitment and retention problems in the military, it is 
our Nation's responsibility to give veterans the kind of access to 
healthcare they have earned through their service to our country. The 
rising cost of gasoline should not be a factor for veterans to ignore 
their health concerns because they cannot afford to travel to the 
nearest veterans' clinic. I strongly urge my colleagues to support this 
important bill.
                                 ______
                                 
      By Mr. BURNS:
  S. 997. A bill to direct the Secretary of Agriculture to convey land 
in the Beaverhead-Deerlodge Forest, Montana, to Jefferson County, 
Montana, for use as a cemetery; to the Committee on Energy and Natural 
Resources.
  Mr. BURNS. Mr. President, this bill conveys 3.4 acres on the 
Beaverhead-Deerlodge National Forest to Jefferson County, MT for 
continued use as a cemetery.
  The Elkhorn Cemetery in Jefferson County has been used as a cemetery 
since the 1860's. Due to surveying errors and limited information when 
the National Forest boundaries were surveyed in the early 1900's, the 
cemetery was included as National Forest lands. The cemetery is still 
in use by local families who homesteaded and worked the mines in the 
area. However, Forest Service manual direction strongly discourages 
burials on National Forest lands, placing both the families and Forest 
Service in an awkward position.
  It is clear the cemetery should not have been included as part of the 
National Forest. The County Commissioners and the local public strongly 
support the conveyance.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 997

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Montana Cemetery Act of 
     2005''.

     SEC. 2. CONVEYANCE TO JEFFERSON COUNTY, MONTANA.

       (a) Conveyance.--Not later than 180 days after the date of 
     enactment of this Act and subject to valid existing rights, 
     the Secretary of Agriculture (referred to in this Act as the 
     ``Secretary''), acting through the Chief of the Forest 
     Service, shall convey to Jefferson County, Montana, for no 
     consideration, all right, title, and interest of the United 
     States in and to the parcel of land described in subsection 
     (b).
       (b) Description of Land.--The parcel of land referred to in 
     subsection (a) is the parcel of National Forest System land 
     (including any improvements on the land) known as the Elkhorn 
     Cemetery, which consists of 10 acres in Jefferson County 
     located in SW1/4 Sec. 14, T. 6 N., R. 3 W.
       (c) Additional Terms and Conditions.--The Secretary may 
     require such additional terms and conditions for the 
     conveyance under subsection (a) as the Secretary considers 
     appropriate to protect the interests of the United States.
                                 ______
                                 
      By Mr. CRAPO (for himself and Mr. Craig):
  S. 998. A bill to include the State of Idaho as an affected area 
under the Radiation Exposure Compensation Act (42 U.S.C. 2210 note); to 
the committee on the Judiciary.
  Mr. CRAPO. Mr. President, in the 1950s and 1960s, this country was in 
the midst of a cold war and arms race, a race to perfect the hydrogen 
bomb. To win the race, nuclear weapons technology was developed using 
above ground testing in Idaho's neighbor to the south, Nevada. During 
these tests, Idahoans recount going outside in the evenings to look at 
the beautiful sunsets caused by the testing. Unfortunately and 
unbeknown to them, these skies were filled with dangerous radiation 
that very much elevated their exposure and subsequent risk of 
developing cancer.
  I will not debate whether government authorities adequately knew the 
extent of the long-term dangers to radiation exposure. However, after a 
long and protracted discussion in this very chamber, Congress did 
recognize that what had occurred during this time of nuclear testing 
and rightly came forward providing for compensation through the 
Radiation Exposure Compensation Act of 1990 (RECA). This bill said that 
if you lived in certain counties in certain States during a certain 
period of time and had specified diseases, you were eligible for 
compensation. It is now time to review that program and make it work 
for everyone who may have become ill because of radiation fall-out 
exposure.
  The criteria established in the Act were driven by limited scientific 
knowledge and political expediency. This was recognized in 1999, when a 
group of Senators, led by Senator Hatch, amended RECA to include 
additional counties in Arizona. During the floor debate at the time, 
Senator Hatch said, ``Through advances in science, we now know so much 
more about the effects of radiation than we did in the late 1950s and 
1960s. Our current state of scientific knowledge allows us to pinpoint 
with more accuracy which diseases are reasonably believed to be related 
to radiation exposure, and that is what necessitated the legislation we 
are considering today.''
  But the truth is even more encompassing than a few more counties. 
According to a report from the National Academies of Sciences, a report 
commissioned by Congress, radiation fall-out didn't know any arbitrary 
geographic boundaries. It didn't stop because it crossed a State or 
county line. The NAS report, released last month, clearly demonstrated 
that we continue to be wide of the mark in who is eligible for 
compensation and that is why I am introducing legislation today to 
bring RECA back on course. Information used to establish who would be 
eligible for compensation failed to recognize that four counties in 
Idaho ranked in the top five in having the highest per capita thyroid 
dosage of radiation in the nation, more than any county currently 
recognized by RECA for eligibility. This clear inequity must be 
rectified; Idaho has a documented history of high cancer rates in 
people who lived in these areas during testing.
  At this time I would like to thank people like Sheri Garmon, Kathy 
Skippen, Tona Henderson, and so many others who have spent time and 
energy on this issue. Some like Sheri are fighting multiple cancers and 
yet have taken the time to pursue their belief that they to deserved to 
be eligible for the RECA program. The NAS report recognizes that the 
RECA program needs revamping, but Idahoans deserve equal treatment with 
those in Utah, Arizona, and Nevada now. They should not have to wait 
while Congress comes up with a better way to administer this program. 
That is why I am introducing legislation today that will extend the 
present program to cover the full State of Idaho. And I am encouraging 
my colleagues to work with me on making the entire RECA program more 
comprehensive for the future.
  It is the right thing to do.
                                 ______
                                 
      By Mr. WYDEN (for himself and Mr. Smith):
  S. 999. A bill to provide for a public response to the public health 
crisis of pain, and for other purposes; to the Committee on Health, 
Education, Labor, and Pensions.
                                 ______
                                 
      By Mr. WYDEN:
  S. 1000. A bill to amend the Public Health Service Act to increase 
the number of permanent faculty in palliative care medicine at 
accredited allopathic and osteopathic medical schools and to promote 
the development of faculty careers as academic palliative specialists 
who emphasize teaching; to the Committee on Health, Education, Labor, 
and Pensions.
                                 ______
                                 
      By Mr. WYDEN
  S. 1001. A bill to establish hospice demonstration projects and a 
hospice grant program for beneficiaries under the medicare program 
under title XVII

[[Page S4941]]

of the Social Security Act, and for other purposes; to the Committee on 
Finance.
  Mr. WYDEN. Mr. President, several weeks ago, I outlined what I 
believed this country needs to do in order to address the true issues 
related to how we care for those who are dying. Today, I am introducing 
3 bills to improve access to pain management, increase the number of 
providers trained to care for those with life-threatening illness, and 
improve the Medicare hospice benefit.
  Our medical system is geared towards curing patients, and gives short 
shrift to those we cannot cure. Modern advances in technology allow us 
to live longer, but that also means that many of us will live longer 
with chronic diseases including pain.
  The Conquering Pain Act will help those patients living and dying in 
pain, support their families and assist providers in getting 
information and guidance. This legislation will provide an opportunity 
for the country to develop and test different ways of providing pain 
management to patients 24 hours a day, seven days a week. It would 
create and fund regional networks to assist patients so they would not 
have to wait until normal business hours to get relief and help 
providers receive timely information and guidance as they treat 
difficult cases. This bill would create a website and require access to 
it in health care settings so families, patients and providers can have 
instant information. In addition, the bill requires several studies so 
we can better understand the other roadblocks for patients seeking pain 
management. These roadblocks include the lack of health insurance 
coverage for pain management and the interaction of the enforcement of 
laws concerning controlled substances and the delivery of appropriate 
pain management. I am pleased that my colleague from Oregon is 
cosponsoring the Conquering Pain Act.
  Another aspect of our health care system that needs strengthening, is 
in assuring that we have providers who know how to provide support and 
comfort care to the dying. The Palliative Care Training Act will 
increase the number of providers trained in palliative care. Palliative 
care is an approach that improves the quality of life of patients and 
their families facing the problems associated with life-threatening 
illness. It does so through the prevention and relief of suffering by 
early identification, assessment and treatment of pain and other 
problems. Palliative care affirms life and regards dying as a normal 
process. It neither hastens nor postpones death and is applicable early 
in the course of illness, in conjunction with other therapies that are 
intended to prolong life, such as chemotherapy or radiation therapy, 
and offers a support system to help patients live as actively as 
possible until death.
  My legislation provides grants to individuals with appointments as 
junior faculty at accredited medical schools so they will teach other 
providers palliative care. This is modeled after existing awards for 
the training of other specialties. When it comes down to it, assuring 
there is faculty in schools to teach this area of medicine, is an 
inexpensive way of strengthening the health care system in providing 
this needed care. I am pleased to note that when the National Hospice 
and Palliative Care Association recently testified before the Senate 
Health, Education and Labor Committee, they identified this legislation 
as addressing an important need.
  As we look at how to better care for those at the end of life, 
Medicare's hospice benefit bears examination. When the benefit was 
added to Medicare, it was hailed as a cost effective benefit that would 
assist many. In truth, few Americans know what hospice really is and 
the benefits it can provide. Too often seniors are advised of the 
benefits too late to get the full effect of the medical, social and 
spiritual support this benefit can provide. Part of the reason for this 
is Medicare requires the patient to choose between continuing to seek 
``curative'' care or hospice and palliative care. This means that 
literally the patient must choose between the hope of a cure and 
accepting that they are dying. Not many of us would want to give up 
seeking a cure or want to give up hope. However, that is what the 
Medicare program requires now. The Medicare Hospice Demonstration Act 
tests the idea that patients would not have to give up seeking 
``curative'' care, to get hospice. It is my belief that as people 
experience what hospice can do for them and for their families, they 
will find they can accept living the end of their lives with hospice 
and palliative care instead of seeking less effective care that will 
not cure them or enhance the quality of their life.
  It the U.S. Senate is going to examine end of life issues, we should 
not just look at legal issues. I believe these proposals are essential 
elements of the health care system that need to be supported and 
strengthened.
  I ask unanimous consent that the text of the bills be printed in the 
Record.
  There being no objection, the bills were ordered to be printed in the 
Record, as follows:

                                 S. 999

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Conquering 
     Pain Act of 2005''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title.
Sec. 2. Findings.
Sec. 3. Definitions.

    TITLE I--EMERGENCY RESPONSE TO THE PUBLIC HEALTH CRISIS OF PAIN

Sec. 101. Guidelines for the treatment of pain.
Sec. 102. Patient expectations to have pain and symptom management.
Sec. 103. Quality improvement projects.
Sec. 104. Pain coverage quality evaluation and information.
Sec. 105. Surgeon General's report.

                TITLE II--DEVELOPING COMMUNITY RESOURCES

Sec. 201. Family support networks in pain and symptom management.

                   TITLE III--REIMBURSEMENT BARRIERS

Sec. 301. Reimbursement barriers report.
Sec. 302. Insurance coverage of pain and symptom management.

   TITLE IV--IMPROVING FEDERAL COORDINATION OF POLICY, RESEARCH, AND 
                              INFORMATION

Sec. 401. Advisory Committee on Pain and Symptom Management.
Sec. 402. Institutes of Medicine report on controlled substance 
              regulation and the use of pain medications.
Sec. 403. Conference on pain research and care.

                    TITLE V--DEMONSTRATION PROJECTS

Sec. 501. Provider performance standards for improvement in pain and 
              symptom management.
Sec. 502. End of life care demonstration projects.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) pain is often left untreated or under-treated 
     especially among older patients, African Americans, Hispanics 
     and other minorities, and children;
       (2) chronic pain is a public health problem affecting at 
     least 50,000,000 Americans through some form of persisting or 
     recurring symptom;
       (3) 40 to 50 percent of patients experience moderate to 
     severe pain at least half the time in their last days of 
     life;
       (4) 70 to 80 percent of cancer patients experience 
     significant pain during their illness;
       (5) one in 7 nursing home residents experience persistent 
     pain that may diminish their quality of life;
       (6) despite the best intentions of physicians, nurses, 
     pharmacists, and other health care professionals, pain is 
     often under-treated because of the inadequate training of 
     clinicians in pain management;
       (7) despite the best intentions of physicians, nurses, 
     pharmacists, mental health professionals, and other health 
     care professionals, pain and symptom management is often 
     suboptimal because the health care system has focused on cure 
     of disease rather than the management of a patient's pain and 
     other symptoms;
       (8) the technology and scientific basis to adequately 
     manage most pain is known;
       (9) pain should be considered the fifth vital sign; and
       (10) coordination of Federal efforts is needed to improve 
     access to high quality effective pain and symptom management 
     in order to assure the needs of chronic pain patients and 
     those who are terminally ill are met.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Chronic pain.--The term ``chronic pain'' means a pain 
     state that is persistent and in which the cause of the pain 
     cannot be removed or otherwise alleviated. Such term includes 
     pain that may be associated with long-term incurable or 
     intractable medical conditions or disease.
       (2) End of life care.--The term ``end of life care'' means 
     a range of services, including hospice care, provided to a 
     patient, in the final stages of his or her life, who is 
     suffering from 1 or more conditions for which treatment 
     toward a cure or reasonable improvement is not possible, and 
     whose focus of care is palliative rather than curative.

[[Page S4942]]

       (3) Family support network.--The term ``family support 
     network'' means an association of 2 or more individuals or 
     entities in a collaborative effort to develop multi-
     disciplinary integrated patient care approaches that involve 
     medical staff and ancillary services to provide support to 
     chronic pain patients and patients at the end of life and 
     their caregivers across a broad range of settings in which 
     pain management might be delivered.
       (4) Hospice.--The term ``hospice care'' has the meaning 
     given such term in section 1861(dd)(1) of the Social Security 
     Act (42 U.S.C. 1395x(dd)(1)).
       (5) Medication therapy management services.--The term 
     ``medication therapy management services'' means 
     consultations with a physician or other health care 
     professional (including a pharmacist) who is practicing 
     within the scope of the professional's license, concerning a 
     patient which results in--
       (A) a change in the drug regimen of the patient to avoid an 
     adverse drug interaction with another drug or disease state;
       (B) a change in inappropriate drug dosage or dosage form 
     with respect to the patient;
       (C) discontinuing an unnecessary or harmful medication with 
     respect to the patient;
       (D) an initiation of medication therapy for a medical 
     condition of the patient;
       (E) consultation with the patient or a caregiver in a 
     manner that results in a significant improvement in drug 
     regimen compliance; or
       (F) patient and caregiver understanding of the appropriate 
     use and adherence to medication therapy.
       (6) Pain and symptom management.--The term ``pain and 
     symptom management'' means services provided to relieve 
     physical or psychological pain or suffering, including any 1 
     or more of the following physical complaints--
       (A) weakness and fatigue;
       (B) shortness of breath;
       (C) nausea and vomiting;
       (D) diminished appetite;
       (E) wasting of muscle mass;
       (F) difficulty in swallowing;
       (G) bowel problems;
       (H) dry mouth;
       (I) failure of lymph drainage resulting in tissue swelling;
       (J) confusion;
       (K) dementia;
       (L) delirium;
       (M) anxiety;
       (N) depression; and
       (O) other related symptoms
       (7) Palliative care.--The term ``palliative care'' means 
     the total care of patients whose disease is not responsive to 
     curative treatment, the goal of which is to provide the best 
     quality of life for such patients and their families. Such 
     care--
       (A) may include the control of pain and of other symptoms, 
     including psychological, social and spiritual problems;
       (B) affirms life and regards dying as a normal process;
       (C) provides relief from pain and other distressing 
     symptoms;
       (D) integrates the psychological and spiritual aspects of 
     patient care;
       (E) offers a support system to help patients live as 
     actively as possible until death; and
       (F) offers a support system to help the family cope during 
     the patient's illness and in their own bereavement.
       (8) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services.

    TITLE I--EMERGENCY RESPONSE TO THE PUBLIC HEALTH CRISIS OF PAIN

     SEC. 101. GUIDELINES FOR THE TREATMENT OF PAIN.

       (a) Development of Website.--Not later than 2 months after 
     the date of enactment of this Act, the Secretary, acting 
     through the Agency for Healthcare Research and Quality, shall 
     develop and maintain an Internet website to provide 
     information to individuals, health care practitioners, and 
     health facilities concerning evidence-based practice 
     guidelines developed for the treatment of physical and 
     psychological pain. Websites in existence on such date may be 
     used if such websites meet the requirements of this section.
       (b) Requirements.--The website established under subsection 
     (a) shall--
       (1) be designed to be quickly referenced by health care 
     practitioners; and
       (2) provide for the updating of guidelines as scientific 
     data warrants.
       (c) Provider Access to Guidelines.--
       (1) In general.--In establishing the website under 
     subsection (a), the Secretary shall ensure that health care 
     facilities have made the website known to health care 
     practitioners and that the website is easily available to all 
     health care personnel providing care or services at a health 
     care facility.
       (2) Use of certain equipment.--In making the information 
     described in paragraph (1) available to health care 
     personnel, the facility involved shall--
       (A) ensure that such personnel have access to the website 
     through the computer equipment of the facility;
       (B) carry out efforts to inform personnel at the facility 
     of the location of such equipment; and
       (C) ensure that patients, caregivers, and support groups 
     are provided with access to the website.
       (3) Rural areas.--
       (A) In general.--A health care facility, particularly a 
     facility located in a rural or underserved area, without 
     access to the Internet shall provide an alternative means of 
     providing practice guideline information to all health care 
     personnel.
       (B) Alternative means.--The Secretary shall determine 
     appropriate alternative means by which a health care facility 
     may make available practice guideline information on a 24-
     hour basis, 7 days a week if the facility does not have 
     Internet access. The criteria for adopting such alternative 
     means should be clear in permitting facilities to develop 
     alternative means without placing a significant financial 
     burden on the facility and in permitting flexibility for 
     facilities to develop alternative means of making guidelines 
     available. Such criteria shall be published in the Federal 
     Register.

     SEC. 102. PATIENT EXPECTATIONS TO HAVE PAIN AND SYMPTOM 
                   MANAGEMENT.

       (a) In General.--The administrator of each of the programs 
     described in subsection (b) shall ensure that, as part of any 
     informational materials provided to individuals under such 
     programs, such materials shall include information, where 
     relevant, to inform such individuals that they should expect 
     to have their pain assessed and should expect to be provided 
     with effective pain and symptom relief, when receiving 
     benefits under such program.
       (b) Programs.--The programs described in this subsection 
     shall include--
       (1) the medicare and medicaid programs under titles XIX and 
     XXI of the Social Security Act (42 U.S.C. 1935 et seq., 1936 
     et seq.);
       (2) programs carried out through the Public Health Service;
       (3) programs carried out through the Indian Health Service;
       (4) programs carried out through health centers under 
     section 330 of the Public Health Service Act (42 U.S.C. 
     254b);
       (5) the Federal Employee Health Benefits Program under 
     title 5, United States Code;
       (6) the Civilian Health and Medical Program of the 
     Uniformed Services (CHAMPUS) as defined in section 1073(4) of 
     title 10, United States Code; and
       (7) other programs administered by the Secretary.

     SEC. 103. QUALITY IMPROVEMENT EDUCATION PROJECTS.

       The Secretary shall provide funds for the implementation of 
     special education projects, in as many States as is 
     practicable, to be carried out by peer review organizations 
     of the type described in section 1152 of the Social Security 
     Act (42 U.S.C. 1320c-1) to improve the quality of pain and 
     symptom management. Such projects shall place an emphasis on 
     improving pain and symptom management at the end of life, and 
     may also include efforts to increase the quality of services 
     delivered to chronic pain patients and the chronically ill 
     for whom pain may be a significant symptom.

     SEC. 104. PAIN COVERAGE QUALITY EVALUATION AND INFORMATION.

       (a) In General.--Section 1851(d)(4) of the Social Security 
     Act (42 U.S.C. 42 U.S.C. 1395w-21(d)(4)) is amended--
       (1) in subparagraph (A), by adding at the end the 
     following:
       ``(ix) The organization's coverage of pain and symptom 
     management.''; and
       (2) in subparagraph (D)--
       (A) in clause (iii), by striking ``and'' at the end;
       (B) in clause (iv), by striking the period and inserting 
     ``, and''; and
       (C) by adding at the end the following:
       ``(v) not later than 2 years after the date of enactment of 
     this clause, an evaluation (which may be made part of any 
     other relevant report of quality evaluation that the plan is 
     required to prepare) for the plan (updated annually) that 
     indicates the performance of the plan with respect to access 
     to, and quality of, pain and symptom management, including 
     such management as part of end of life care. Data shall be 
     posted in a comparable manner for consumer use on 
     www.medicare.gov.''.
       (b) Effective Date.--The amendments made by paragraph (1) 
     apply to information provided with respect to annual, 
     coordinated election periods (as defined in section 
     1851(e)(3)(B) of the Social Security Act (42 U.S.C. 1395-
     21(e)(3)(B)) beginning after the date of enactment of this 
     Act.

     SEC. 105. SURGEON GENERAL'S REPORT.

       Not later than October 1, 2006, the Surgeon General shall 
     prepare and submit to the appropriate committees of Congress 
     and the public, a report concerning the state of pain and 
     symptom management in the United States. The report shall 
     include--
       (1) a description of the legal and regulatory barriers that 
     may exist at the Federal and State levels to providing 
     adequate pain and symptom management;
       (2) an evaluation of provider competency in providing pain 
     and symptom management;
       (3) an identification of vulnerable populations, including 
     children, advanced elderly, non-English speakers, and 
     minorities, who may be likely to be underserved or may face 
     barriers to access to pain management and recommendations to 
     improve access to pain management for these populations;
       (4) an identification of barriers that may exist in 
     providing pain and symptom management in health care 
     settings, including assisted living facilities;
       (5) an identification of patient and family attitudes that 
     may exist which pose barriers

[[Page S4943]]

     in accessing pain and symptom management or in the proper use 
     of pain medications;
       (6) an evaluation of medical, nursing, and pharmacy school 
     training and residency training for pain and symptom 
     management;
       (7) a review of continuing medical education programs in 
     pain and symptom management; and
       (8) a description of the use of and access to mental health 
     services for patients in pain and patients at the end of 
     life.

                TITLE II--DEVELOPING COMMUNITY RESOURCES

     SEC. 201. FAMILY SUPPORT NETWORKS IN PAIN AND SYMPTOM 
                   MANAGEMENT.

       (a) Establishment.--The Secretary, acting through the 
     Public Health Service, shall award grants for the 
     establishment of 6 National Family Support Networks in Pain 
     and Symptom Management (in this section referred to as the 
     ``Networks'') to serve as national models for improving the 
     access and quality of pain and symptom management to chronic 
     pain patients (including chronically ill patients for whom 
     pain is a significant symptom) and those individuals in need 
     of pain and symptom management at the end of life and to 
     provide assistance to family members and caregivers.
       (b) Eligibility and Distribution.--
       (1) Eligibility.--To be eligible to receive a grant under 
     subsection (a), an entity shall--
       (A) be an academic facility or other entity that has 
     demonstrated an effective approach to training health care 
     providers including mental health professionals concerning 
     pain and symptom management and palliative care services; and
       (B) prepare and submit to the Secretary an application (to 
     be peer reviewed by a committee established by the 
     Secretary), at such time, in such manner, and containing such 
     information as the Secretary may require.
       (2) Distribution.--In providing for the establishment of 
     Networks under subsection (a), the Secretary shall ensure 
     that--
       (A) the geographic distribution of such Networks reflects a 
     balance between rural and urban needs; and
       (B) at least 3 Networks are established at academic 
     facilities.
       (c) Activities of Networks.--A Network that is established 
     under this section--
       (1) shall provide for an integrated interdisciplinary 
     approach, that includes psychological and counseling 
     services, to the delivery of pain and symptom management;
       (2) shall provide community leadership in establishing and 
     expanding public access to appropriate pain care, including 
     pain care at the end of life;
       (3) shall provide assistance, through caregiver supportive 
     services, that include counseling and education services;
       (4) shall develop a research agenda to promote effective 
     pain and symptom management for the broad spectrum of 
     patients in need of access to such care that can be 
     implemented by the Network;
       (5) shall provide for coordination and linkages between 
     clinical services in academic centers and surrounding 
     communities to assist in the widespread dissemination of 
     provider and patient information concerning how to access 
     options for pain management;
       (6) shall establish telemedicine links to provide education 
     and for the delivery of services in pain and symptom 
     management;
       (7) shall develop effective means of providing assistance 
     to providers and families for the management of a patient's 
     pain 24 hours a day, 7 days a week; and
       (8) may include complimentary medicine provided in 
     conjunction with traditional medical services.
       (d) Provider Pain and Symptom Management Communications 
     Projects.--
       (1) In general.--Each Network shall establish a process to 
     provide health care personnel with information 24 hours a 
     day, 7 days a week, concerning pain and symptom management. 
     Such process shall be designed to test the effectiveness of 
     specific forms of communications with health care personnel 
     so that such personnel may obtain information to ensure that 
     all appropriate patients are provided with pain and symptom 
     management.
       (2) Termination.--The requirement of paragraph (1) shall 
     terminate with respect to a Network on the day that is 2 
     years after the date on which the Network has established the 
     communications method.
       (3) Evaluation.--Not later than 60 days after the 
     expiration of the 2-year period referred to in paragraph (2), 
     a Network shall conduct an evaluation and prepare and submit 
     to the Secretary a report concerning the costs of operation 
     and whether the form of communication can be shown to have 
     had a positive impact on the care of patients in chronic pain 
     or on patients with pain at the end of life.
       (4) Rule of construction.--Nothing in this subsection shall 
     be construed as limiting a Network from developing other ways 
     in which to provide support to families and providers, 24 
     hours a day, 7 days a week.
       (e) Authorization of Appropriations.--There is authorized 
     to be appropriated to carry out this section, $18,000,000 for 
     fiscal years 2005 through 2007.

                   TITLE III--REIMBURSEMENT BARRIERS

     SEC. 301. REIMBURSEMENT BARRIERS REPORT.

       The Medicare Payment Advisory Commission (MedPac) 
     established under section 1805 of the Social Security Act (42 
     U.S.C. 1396b-6) shall conduct a study, and prepare and submit 
     to the appropriate committees of Congress a report, 
     concerning--
       (1) the manner in which medicare policies may pose barriers 
     in providing pain and symptom management and palliative care 
     services in different settings, including a focus on payment 
     for nursing home and home health services;
       (2) the identification of any financial barriers that may 
     exist within the medicare and medicaid programs under titles 
     XVIII and XIX of the Social Security Act (42 U.S.C. 1395 et 
     seq., 1396 et seq.) that interfere with continuity of care 
     and interdisciplinary care or supportive care for the broad 
     range of chronic pain patients (including patients who are 
     chronically ill for whom pain is a significant symptom), and 
     for those who are terminally ill, and include the 
     recommendations of the Commission on ways to eliminate those 
     barriers that the Commission may identify;
       (3) the reimbursement barriers that exist, if any, in 
     providing pain and symptom management through hospice care, 
     particularly in rural areas, and if barriers exist, 
     recommendations concerning adjustments that would assist in 
     assuring patient access to pain and symptom management 
     through hospice care in rural areas;
       (4) whether the medicare reimbursement system provides 
     incentives to providers to delay informing terminally ill 
     patients of the availability of hospice and palliative care; 
     and
       (5) the impact of providing payments for medication therapy 
     management services in pain and symptom management and 
     palliative care services.

     SEC. 302. INSURANCE COVERAGE OF PAIN AND SYMPTOM MANAGEMENT.

       (a) In General.--The General Accounting Office shall 
     conduct a survey of public and private health insurance 
     providers, including managed care entities, to determine 
     whether the reimbursement policies of such insurers inhibit 
     the access of chronic pain patients to pain and symptom 
     management and pain and symptom management for those in need 
     of end-of-life care (including patients who are chronically 
     ill for whom pain is a significant symptom). The survey shall 
     include a review of  formularies for pain medication and the 
     effect of such formularies on pain and symptom management.
       (b) Report.--Not later than 1 year after the date of 
     enactment of this Act, the General Accounting Office shall 
     prepare and submit to the appropriate committees of Congress 
     a report concerning the survey conducted under subsection 
     (a).

   TITLE IV--IMPROVING FEDERAL COORDINATION OF POLICY, RESEARCH, AND 
                              INFORMATION

     SEC. 401. ADVISORY COMMITTEE ON PAIN AND SYMPTOM MANAGEMENT.

       (a) Establishment.--The Secretary shall establish an 
     advisory committee, to be known as the Advisory Committee on 
     Pain and Symptom Management, to make recommendations to the 
     Secretary concerning a coordinated Federal agenda on pain and 
     symptom management.
       (b) Membership.--The Advisory Committee established under 
     subsection (a) shall be comprised of 11 individuals to be 
     appointed by the Secretary, of which at least 1 member shall 
     be a representative of--
       (1) physicians (medical doctors or doctors of osteopathy) 
     who treat chronic pain patients or the terminally ill;
       (2) nurses who treat chronic pain patients or the 
     terminally ill;
       (3) pharmacists;
       (4) hospice;
       (5) pain researchers;
       (6) patient advocates;
       (7) caregivers; and
       (8) mental health providers.
     The members of the Committee shall designate 1 member to 
     serve as the chairperson of the Committee.
       (c) Meetings.--The Advisory Committee shall meet at the 
     call of the chairperson of the Committee.
       (d) Agenda.--The agenda of the Advisory Committee 
     established under subsection (a) shall include--
       (1) the development of recommendations to create a 
     coordinated Federal agenda on pain and symptom management;
       (2) the development of proposals to ensure that pain is 
     considered as the fifth vital sign for all patients;
       (3) the identification of research needs in pain and 
     symptom management, including gaps in pain and symptom 
     management guidelines;
       (4) the identification and dissemination of pain and 
     symptom management practice guidelines, research information, 
     and best practices;
       (5) proposals for patient education concerning how to 
     access pain and symptom management across health care 
     settings;
       (6) the manner in which to measure improvement in access to 
     pain and symptom management and improvement in the delivery 
     of care;
       (7) the development of ongoing strategies to assure the 
     aggressive use of pain medications, including opiods, 
     regardless of health care setting; and
       (8) the development of an ongoing mechanism to identify 
     barriers or potential barriers to pain and symptom management 
     created by Federal policies.
       (e) Recommendation.--Not later than 2 years after the date 
     of enactment of this Act, the Advisory Committee established 
     under subsection (a) shall prepare and submit to the 
     Secretary recommendations concerning a prioritization of the 
     need for a

[[Page S4944]]

     Federal agenda on pain and symptom management, and ways in 
     which to better coordinate the activities of entities within 
     the Department of Health and Human Services, and other 
     Federal entities charged with the responsibility for the 
     delivery of health care services or research on pain and 
     symptom management with respect to pain management.
       (f) Consultation.--In carrying out this section, the 
     Advisory Committee shall consult with all Federal agencies 
     that are responsible for providing health care services or 
     access to health services to determine the best means to 
     ensure that all Federal activities are coordinated with 
     respect to research and access to pain and symptom 
     management.
       (g) Administrative Support; Terms of Service; Other 
     Provisions.--The following shall apply with respect to the 
     Advisory Committee:
       (1) The Committee shall receive necessary and appropriate 
     administrative support, including appropriate funding, from 
     the Department of Health and Human Services.
       (2) The Committee shall hold open meetings and meet not 
     less than 4 times per year.
       (3) Members of the Committee shall not receive additional 
     compensation for their service. Such members may receive 
     reimbursement for appropriate and additional expenses that 
     are incurred through service on the Committee which would not 
     have incurred had they not been a member of the Committee.
       (4) The requirements of Appendix 2 of title 5, United 
     States Code.

     SEC. 402. INSTITUTES OF MEDICINE REPORT ON CONTROLLED 
                   SUBSTANCE REGULATION AND THE USE OF PAIN 
                   MEDICATIONS.

       (a) In General.--The Secretary, acting through a contract 
     entered into with the Institute of Medicine, shall review 
     findings that have been developed through research conducted 
     concerning--
       (1) the effects of controlled substance regulation on 
     patient access to effective care;
       (2) factors, if any, that may contribute to the underuse of 
     pain medications, including opiods;
       (3) the identification of State legal and regulatory 
     barriers, if any, that may impact patient access to 
     medications used for pain and symptom management; and
       (4) strategies to assure the aggressive use of pain 
     medications, including opiods, regardless of health care 
     setting.
       (b) Report.--Not later than 18 months after the date of 
     enactment of this Act, the Secretary shall prepare and submit 
     to the appropriate committees of Congress a report concerning 
     the findings described in subsection (a).

     SEC. 403. CONFERENCE ON PAIN RESEARCH AND CARE.

       Not later than December 31, 2007, the Secretary, acting 
     through the National Institutes of Health, shall convene a 
     national conference to discuss the translation of pain 
     research into the delivery of health services including 
     mental health services to chronic pain patients and those 
     needing end-of-life care. The Secretary shall use unobligated 
     amounts appropriated for the Department of Health and Human 
     Services to carry out this section.

                    TITLE V--DEMONSTRATION PROJECTS

     SEC. 501. PROVIDER PERFORMANCE STANDARDS FOR IMPROVEMENT IN 
                   PAIN AND SYMPTOM MANAGEMENT.

       (a) In General.--The Secretary, acting through the Health 
     Resources Services Administration, shall award grants for the 
     establishment of not less than 5 demonstration projects to 
     determine effective methods to measure improvement in the 
     skills, knowledge, and attitudes and beliefs of health care 
     personnel in pain and symptom management as such skill, 
     knowledge, and attitudes and beliefs apply to providing 
     services to chronic pain patients and those patients 
     requiring pain and symptom management at the end of life.
       (b) Evaluation.--Projects established under subsection (a) 
     shall be evaluated to determine patient and caregiver 
     knowledge and attitudes toward pain and symptom management.
       (c) Application.--To be eligible to receive a grant under 
     subsection (a), an entity shall prepare and submit to the 
     Secretary an application at such time, in such manner and 
     containing such information as the Secretary may require.
       (d) Termination.--A project established under subsection 
     (a) shall terminate after the expiration of the 2-year period 
     beginning on the date on which such project was established.
       (e) Authorization of Appropriations.--There is authorized 
     to be appropriated such sums as may be necessary to carry out 
     this section.

     SEC. 502. END OF LIFE CARE DEMONSTRATION PROJECTS.

       The Secretary, acting through the Health Resources and 
     Services Administration, shall--
       (1) not later than January 1, 2007, carry out not less than 
     5 demonstration and evaluation projects that implement care 
     models for individuals at the end of life, at least one of 
     which shall be developed to assist those individuals who are 
     terminally ill and have no family or extended support, and 
     each of which may be carried out in collaboration with 
     domestic and international entities to gain and share 
     knowledge and experience on end of life care;
       (2) conduct 3 demonstration and evaluation activities 
     concerning the education and training of clinicians in end of 
     life care, and assist in the development and distribution of 
     accurate educational materials on both pain and symptom 
     management and end of life care;
       (3) in awarding grants for the training of health 
     professionals, give priority to awarding grants to entities 
     that will provide training for health professionals in pain 
     and symptom management and in end-of-life care at the 
     undergraduate level;
       (4) shall evaluate demonstration projects carried out under 
     this section within the 5-year period beginning on the 
     commencement of each such project; and
       (5) develop a strategy and make recommendations to Congress 
     to ensure that the United States health care system--
       (A) has a meaningful, comprehensive, and effective approach 
     to meet the needs of individuals and their caregivers as the 
     patient approaches death; and
       (B) integrates broader supportive services.

                                S. 1000

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Palliative Care Training 
     Act''.

     SEC. 2. PALLIATIVE CARE TRAINING PROGRAM.

       (a) In General.--Section 753 of the Public Health Service 
     Act (42 U.S.C. 294c) is amended by adding at the end the 
     following:
       ``(d) Hospice and Palliative Care Academic Career Awards.--
       ``(1) In general.--The Secretary shall establish a program 
     to provide Hospice and Palliative Care Academic Career Awards 
     to eligible individuals under this subsection.
       ``(2) Eligibility.--To be eligible to receive an Award 
     under this subsection, an individual shall--
       ``(A) be board certified or board eligible in internal 
     medicine, family practice, or pediatrics and their 
     subspecialties including geriatrics, palliative medicine, or 
     other specialties as determined by the Secretary;
       ``(B) have completed an approved fellowship program or 
     demonstrated specialized experience in palliative medicine as 
     determined by the Secretary; and
       ``(C) have a junior faculty appointment at an accredited 
     (as determined by the Secretary) school of medicine 
     (allopathic or osteopathic) and within an internship or 
     residency program that is approved by the Accreditation 
     Council on Graduate Medical Education or the American 
     Osteopathic Association.
       ``(3) Amount and term.--
       ``(A) Amount.--The amount of an Award to an individual 
     under this subsection shall be equal to $75,000 for fiscal 
     year 2006, adjusted for subsequent fiscal years to reflect 
     the increase in the Consumer Price Index.
       ``(B) Term.--The term of any Award made under this 
     subsection shall not exceed 5 years.
       ``(4) Service requirement.--An individual who receives an 
     Award under this subsection shall provide training in hospice 
     care and palliative medicine, including the training of 
     interdisciplinary teams of health care professionals. The 
     provision of such training shall constitute at least 75 
     percent of the obligations of such individual under the terms 
     of the Award.
       ``(5) Effective date.--This subsection shall take effect 90 
     days after the date of enactment of the Palliative Care 
     Training Act.''.
       (b) Authorization of Appropriations.--Section 757 of the 
     Public Health Service Act (42 U.S.C. 294g) is amended--
       (1) in subsection (a), by striking ``through 2002'' and 
     inserting ``through 2010'';
       (2) in subsection (b)(1)(C), by striking ``$22,631,000'' 
     and inserting ``$55,779,000''; and
       (3) in subsection (c), by adding at the end the following:
       ``(3) Geriatric education and training.--Of the amount made 
     available under subsection (b)(1)(C) for fiscal year 2006, 
     the Secretary may obligate for awards under subsections (a), 
     (b), and (c) of section 753 an amount not less than 
     $31,805,000.''.

                                S. 1001

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Medicare Hospice 
     Demonstration Act of 2005''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) Each year more than \1/3\ of the people who die suffer 
     from a chronic illness.
       (2) Approximately \1/3\ of Americans are unsure about whom 
     to contact to get the best care during life's last stages.
       (3) Americans want a team of professionals to care for the 
     patient at the end of life.
       (4) Americans want emotional and spiritual support for the 
     patient and family.
       (5) Ninety percent of Americans do not realize that hospice 
     care is a benefit provided under the medicare program under 
     title XVIII of the Social Security Act.
       (6) Data of the Centers for Medicare & Medicaid Services 
     show that beneficiaries were enrolled in hospice for an 
     average of less than 7 weeks in 1998, far less than the full 
     6-month benefit under the medicare program.
       (7) According to the most recent data available, although 
     more medicare beneficiaries are enrolled in hospice, the 
     medicare length of stay has declined.

[[Page S4945]]

       (8) Use of hospice among medicare beneficiaries has been 
     decreasing, from a high of 59 days in 1995 to less than 48 
     days in 1998.

     SEC. 3. HOSPICE DEMONSTRATION PROJECTS AND HOSPICE EDUCATION 
                   GRANTS.

       (a) Definitions.--In this section:
       (1) Demonstration project.--The term ``demonstration 
     project'' means a demonstration project established by the 
     Secretary under subsection (b)(1).
       (2) Hospice care.--The term ``hospice care'' means the 
     items and services described in subparagraphs (A) through (I) 
     of section 1861(dd)(1) of the Social Security Act (42 U.S.C. 
     1395x(dd)(1)) that are provided to a seriously ill medicare 
     beneficiary under a demonstration project by a hospice 
     program (or by others under an arrangement with such a 
     program) under a written plan for providing such care to such 
     beneficiary established and periodically reviewed by the 
     beneficiary's attending physician, by the medical director of 
     the program, and by the interdisciplinary group described in 
     section 1861(dd)(2)(B) of such Act (42 U.S.C. 
     1395x(dd)(2)(B)).
       (3) Hospice program.--The term ``hospice program'' has the 
     meaning given that term in section 1861(dd)(2) of the Social 
     Security Act (42 U.S.C. 1395x(dd)(2)).
       (4) Medicare beneficiary.--The term ``medicare 
     beneficiary'' means any individual who is entitled to 
     benefits under part A or enrolled under part B of the 
     medicare program.
       (5) Medicare program.--The term ``medicare program'' means 
     the health benefits program under title XVIII of the Social 
     Security Act (42 U.S.C. 1395 et seq.).
       (6) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services.
       (7) Seriously ill.--The term ``seriously ill'' has the 
     meaning given such term by the Secretary (in consultation 
     with hospice programs and academic experts in end-of-life 
     care), except that the Secretary may not limit such term to 
     individuals who are terminally ill (as defined in section 
     1861(dd)(3)(A) of the Social Security Act (42 U.S.C. 
     1395x(dd)(3)(A))).
       (b) Hospice Demonstration Projects.--
       (1) Establishment.--The Secretary shall establish 
     demonstration projects in accordance with the provisions of 
     this subsection to increase the utility of the hospice care 
     for seriously ill medicare beneficiaries.
       (2) Participation.--
       (A) Hospice programs.--Except as provided in paragraph 
     (4)(A), only a hospice program with an agreement under 
     section 1866 of the Social Security Act (42 U.S.C. 1395cc), a 
     consortium of such hospice programs, or a State hospice 
     association may participate in the demonstration program.
       (B) Seriously ill medicare beneficiaries.--The Secretary 
     shall permit any seriously ill medicare beneficiary residing 
     in the service area of a hospice program participating in a 
     demonstration project to participate in such project on a 
     voluntary basis.
       (3) Services under demonstration projects.--The provisions 
     of section 1814(i) of the Social Security Act (42 U.S.C. 
     1395f(i)) shall apply to the payment for hospice care 
     provided under the demonstration projects, except that--
       (A) notwithstanding section 1862(a)(1)(C) of such Act (42 
     U.S.C. 1395y(a)(1)(C)), the Secretary shall provide for 
     reimbursement for items and services provided under the 
     supportive and comfort care benefit established under 
     paragraph (3);
       (B) any licensed nurse practitioner or physician assistant 
     may admit a seriously ill medicare beneficiary as the primary 
     care provider when necessary and within the scope of practice 
     of such practitioner or assistant under State law;
       (C) if an underserved community included in a demonstration 
     project does not have a qualified social worker, any 
     professional (other than a social worker) who has the 
     necessary knowledge, skills, and ability to provide medical 
     social services may provide such services;
       (D) the Secretary shall waive any requirement that nursing 
     facilities used for respite care have skilled nurses on the 
     premises 24 hours per day;
       (E) the Secretary shall permit respite care to be provided 
     to the seriously ill medicare beneficiary at home; and
       (F) the Secretary shall waive reimbursement regulations to 
     provide--
       (i) reimbursement for consultations and preadmission 
     informational visits, even if the seriously ill medicare 
     beneficiary does not elect hospice care at that time;
       (ii) except with respect to the supportive and comfort care 
     benefit under paragraph (3), a minimum payment for hospice 
     care provided under the demonstration projects based on the 
     provision of hospice care to a seriously ill medicare 
     beneficiary for a period of 14 days, that--

       (I) the Secretary shall pay to any hospice program 
     participating in a demonstration project and providing such 
     care (regardless of the length of stay of the seriously ill 
     medicare beneficiary); and
       (II) may not be less than the amount of payment that would 
     have been made for hospice care if payment had been made at 
     the daily rate of payment for such care under section 1814(i) 
     of the Social Security Act (42 U.S.C. 1395f(i));

       (iii) an increase in the reimbursement rates for hospice 
     care to offset--

       (I) changes in hospice care and oversight under the 
     demonstration projects;
       (II) the higher costs of providing hospice care in rural 
     areas due to lack of economies of scale or large geographic 
     areas; and
       (III) the higher costs of providing hospice care in urban 
     underserved areas due to unique costs specifically associated 
     with people living in those areas, including providing 
     security;

       (iv) direct payment of any nurse practitioner or physician 
     assistant practicing within the scope of State law in 
     relation to hospice care provided by such practitioner or 
     assistant; and
       (v) a per diem rate of payment for in-home care under 
     subparagraph (E) that reflects the range of care needs of the 
     seriously ill medicare beneficiary and that--

       (I) in the case of a seriously ill medicare beneficiary 
     that needs routine care, is not less than 150 percent, and 
     not more than 200 percent, of the routine home care rate for 
     hospice care; and
       (II) in the case of a seriously ill medicare beneficiary 
     that needs acute care, is equal to the continuous home care 
     day rate for hospice care.

       (4) Supportive and comfort care benefit.--
       (A) In general.--For purposes of the demonstration 
     projects, the Secretary shall establish a supportive and 
     comfort care benefit for any eligible seriously ill medicare 
     beneficiary (as defined in subparagraph (C)).
       (B) Participation.--Any individual or entity with an 
     agreement under section 1866 of the Social Security Act (42 
     U.S.C. 1395cc) may furnish items or services covered under 
     the supportive and comfort care benefit.
       (C) Benefit.--Under the supportive and comfort care 
     benefit, any eligible seriously ill medicare beneficiary 
     may--
       (i) continue to receive benefits for disease and symptom 
     modifying treatment under the medicare program (and the 
     Secretary may not require or prohibit any specific treatment 
     or decision);
       (ii) receive case management and hospice care through a 
     hospice program participating in a demonstration project (for 
     which payment shall be made under paragraph (2)(F)(ii)); and
       (iii) receive information and education in order to better 
     understand the utility of hospice care.
       (D) Payment.--The Secretary shall establish procedures 
     under which the Secretary pays for items and services 
     furnished to seriously ill medicare beneficiaries under the 
     supportive and comfort care benefit on a fee-for-service 
     basis.
       (E) Eligible seriously ill medicare beneficiary defined.--
       (i) In general.--In this paragraph, the term ``eligible 
     seriously ill medicare beneficiary'' means any seriously ill 
     medicare beneficiary that meets the criteria approved by the 
     Secretary under clause (ii).
       (ii) Approval of criteria.--

       (I) In general.--With respect to each demonstration 
     project, the Secretary shall approve criteria for determining 
     whether a seriously ill medicare beneficiary is eligible for 
     hospice care under a demonstration project that has been 
     developed by hospice programs in consultation with 
     researchers in end-of-life care and the broader medical 
     community.
       (II) Data comparability.--The Secretary may only approve 
     criteria that ensures that each demonstration project yields 
     comparable data with respect to eligible seriously ill 
     medicare beneficiaries on--

       (aa) the utilization of services by such beneficiaries;
       (bb) the cost of providing services to such beneficiaries, 
     including any costs associated with providing services before 
     an individual is terminally ill (as defined in section 
     1861(dd)(3)(A) of the Social Security Act (42 U.S.C. 
     1395x(dd)(3)(A))); and
       (cc) the effect of the demonstration project on the quality 
     of care of such beneficiaries.

       (III) Limitation.--The Secretary may not approve criteria 
     if the purpose of such criteria is to segment services or to 
     provide a benefit for the chronically ill.

       (5) Conduct of demonstration projects.--
       (A) Sites.--The Secretary shall conduct demonstration 
     projects in at least 3, but not more than 6, sites (which may 
     be statewide).
       (B) Selection of sites.--
       (i) In general.--Except as provided in clause (ii), the 
     Secretary shall select demonstration sites on the basis of 
     proposals submitted under subparagraph (C) that are located 
     in geographic areas that--

       (I) include both urban and rural hospice programs; and
       (II) are geographically diverse and readily accessible to a 
     significant number of seriously ill medicare beneficiaries.

       (ii) Exceptions.--

       (I) Underserved urban areas.--If a geographic area does not 
     have any rural hospice program available to participate in a 
     demonstration project, such area may substitute an 
     underserved urban area, but the Secretary shall give priority 
     to those proposals that include a rural hospice program.
       (II) Specific site.--The Secretary shall select as a 
     demonstration site the State in which (according to the 
     Hospital Referral Region of Residence, 1994-1995, as listed 
     in the Dartmouth Atlas of Health Care 1998) the largest 
     metropolitan area of the State had the lowest percentage of 
     medicare beneficiary deaths in a hospital when compared to 
     the largest metropolitan area of each other State, and the 
     percentage of enrollees who experienced intensive care during 
     the last 6 months of life was 21.5 percent.

       (C) Proposals.--

[[Page S4946]]

       (i) In general.--The Secretary shall accept proposals by 
     any State hospice association, hospice program, or consortium 
     of hospice programs at such time, in such manner, and in such 
     form as the Secretary may reasonably require.
       (ii) Research designs.--The Secretary shall permit research 
     designs that use time series, sequential implementation of 
     the intervention, randomization by wait list, and other 
     designs that allow the strongest possible implementation of 
     the demonstration projects, while still allowing strong 
     evaluation about the merits of the demonstration projects.
       (D) Facilitation of evaluation.--The Secretary shall design 
     the program to facilitate the evaluation conducted under 
     paragraph (7).
       (6) Duration.--The Secretary shall complete the 
     demonstration projects within a period of 6\1/2\ years that 
     includes a period of 18 months during which the Secretary 
     shall complete the evaluation under paragraph (7).
       (7) Evaluation.--During the 18-month period following the 
     first 5 years of the demonstration projects, the Secretary 
     shall complete an evaluation of the demonstration projects in 
     order to determine--
       (A) the short-term and long-term costs and benefits of 
     changing hospice care provided under the medicare program to 
     include the items, services, and reimbursement options 
     provided under the demonstration projects;
       (B) whether any increase in payments for the hospice care 
     provided under the medicare program are offset by savings in 
     other parts of the medicare program;
       (C) the projected cost of implementing the demonstration 
     projects on a national basis; and
       (D) in consultation with hospice organizations and hospice 
     programs (including organizations and providers that 
     represent rural areas), whether a payment system based on 
     diagnosis-related groups is useful for administering the 
     hospice care provided under the medicare program.
       (8) Reports to congress.--
       (A) Preliminary report.--Not later than 3 years after the 
     date of enactment of this Act, the Secretary shall submit to 
     the Committee on Ways and Means of the House of 
     Representatives and to the Committee on Finance of the Senate 
     a preliminary report on the progress made in the 
     demonstration projects.
       (B) Interim report.--Not later than 30 months after the 
     implementation of the demonstration projects, the Secretary, 
     in consultation with participants in the projects, shall 
     submit to the committees described in subparagraph (A) an 
     interim report on the demonstration projects.
       (C) Final report.--Not later than the date on which the 
     demonstration projects end, the Secretary shall submit a 
     final report to the committees described in subparagraph (A) 
     on the demonstration projects that includes the results of 
     the evaluation conducted under paragraph (7) and 
     recommendations for appropriate legislative changes.
       (9) Waiver of medicare requirements.--The Secretary shall 
     waive compliance with such requirements of the medicare 
     program to the extent and for the period the Secretary finds 
     necessary to conduct the demonstration projects.
       (10) Special rules for payment of medicare advantage 
     organizations.--The Secretary shall establish procedures 
     under which the Secretary provides for an appropriate 
     adjustment in the monthly payments made under section 1853 of 
     the Social Security Act (42 U.S.C. 1395w-23) to any Medicare 
     Advantage organization offering a Medicare Advantage plan to 
     reflect the participation of each seriously ill medicare 
     beneficiary enrolled in such plan in a demonstration project.
       (c) Hospice Education Grant Program.--
       (1) In general.--The Secretary shall establish a Hospice 
     Education Grant program under which the Secretary awards 
     education grants to entities participating in the 
     demonstration projects for the purpose of providing 
     information about--
       (A) the hospice care under the medicare program; and
       (B) the benefits available to medicare beneficiaries under 
     the demonstration projects.
       (2) Use of funds.--Grants awarded under paragraph (1) shall 
     be used--
       (A) to provide--
       (i) individual or group education to medicare beneficiaries 
     and the families of such beneficiaries; and
       (ii) individual or group education of the medical and 
     mental health community caring for medicare beneficiaries; 
     and
       (B) to test strategies to improve the general public 
     knowledge about hospice care under the medicare program and 
     the benefits available to medicare beneficiaries under the 
     demonstration projects.
       (d) Funding.--
       (1) Hospice demonstration projects.--
       (A) In general.--Except as provided in subparagraph (B), 
     the Secretary shall provide for the transfer from the Federal 
     Hospital Insurance Trust Fund under section 1817 of the 
     Social Security Act (42 U.S.C. 1395i) such sums as may be 
     necessary to carry out this section.
       (B) Supportive and comfort care benefit.--The Secretary 
     shall provide for the transfer from the Federal Hospital 
     Insurance Trust Fund under section 1817 of the Social 
     Security Act (42 U.S.C. 1395i) and the Federal Supplementary 
     Medical Insurance Trust Fund established under section 1841 
     of such Act (42 U.S.C. 1395t), in such proportion as the 
     Secretary determines is appropriate, such sums as may be 
     necessary to provide for payment of the costs attributable to 
     the supportive and comfort care benefit.
       (2) Hospice education grants.--The Secretary shall expend 
     such sums as may be necessary for the purposes of carrying 
     out the Hospice Education Grant program established under 
     subsection (c)(1) from the Research and Demonstration Budget 
     of the Centers for Medicare & Medicaid Services.
                                 ______
                                 
      By Mr. GRASSLEY (for himself and Mr. Baucus):
  S. 1002. A bill to amend title XVIII of the Social Security Act to 
make improvements in payments to hospitals under the medicare program, 
and for other purposes; to the Committee on Finance.
  MR. GRASSLEY. Mr. President, physician-owned specialty hospitals 
continue to raise a number of troubling issues, and I feel strongly 
that additional action to address these issues is needed from Congress. 
Today, I am pleased to join Senator Max Baucus, the ranking Democrat on 
the Senate Finance Committee, in introducing the Hospital Fair 
Competition Act of 2005. This bill has an effective date of June 8, 
2005, regardless of when it may be enacted as this is the date the 
current moratorium on specialty hospitals expires.
  Now, specialty hospitals have existed for quite some time. There are 
other types of hospitals with a special focus, such as children's 
hospitals and psychiatric facilities. But these are not really what we 
are talking about. We are talking about the emergence of a new type of 
hospital. These new facilities are mostly for-profit. They are mainly 
owned by the physicians who refer their patients to these hospitals. 
And, they provide treatment in very specific areas such as cardiac, 
orthopedic or surgical care.
  The number of these specialty hospitals has more than tripled in the 
past 10 years. While they are still relatively small in number--about 
100--they are increasing quickly. They are mainly located in certain 
pockets of the country, concentrated in those States without a 
``certificate of need'' requirement. That means they are mainly located 
in States where hospitals are permitted to add beds or build new 
facilities without first obtaining approval by the State. This approval 
process helps ensure that there is an actual public health need for 
additional health resources in the community.
  Congress, in the Medicare Prescription Drug, Improvement, and 
Modernization Act of 2003 (MMA), placed a moratorium on the development 
of new physician-owned specialty hospital hospitals until June 8, 2005. 
First, there were concerns about the conflict of interest inherit in 
physician self-referral. Second, it was thought that specialty 
hospitals might be an unfair form of competition. And third, in all of 
this, was a concern about the impact these hospitals may be having on 
the health care system as a whole.
  The Medicare Payment Advisory Commission (MedPAC) and the Centers for 
Medicare and Medicaid Services (CMS) were directed by the MMA to study 
and report on a number of issues related to specialty hospitals. 
Today's Hospital Fair Competition Act draws heavily from MedPAC's non-
partisan recommendations in its March 8, 2005, report to Congress.
  Three separate government studies have found that physician-owned 
specialty hospitals treat the most profitable patients and services, 
leaving community hospitals to treat a disproportionate share of less 
profitable cases, Medicaid cases and the uninsured.
  An April 2003 report by the Government Accountability Office (GAO) 
found that patients at specialty hospitals tended to be less sick than 
patients with the same diagnoses at general hospitals. The Centers for 
Medicare and Medicaid Services (CMS) reported in March its preliminary 
findings that specialty hospitals generally treat less severe cases 
than community hospitals. And, MedPAC reported that physician-owned 
specialty hospitals treat patients who are less sick, and thus more 
profitable, and concentrate on certain diagnosis-related groups (DRGs) 
that are more profitable.
  In addition, approximately 93 percent of community hospitals operate 
emergency rooms, compared to less than half of specialty hospitals, 
thus treating any and all patients who walk

[[Page S4947]]

through their doors. They also serve a much greater share of poor 
patients, averaging 15 percent versus four percent for specialty heart 
hospitals and one percent for specialty orthopedic hospitals. When 
community hospitals lose their profitable services, they must shift 
costs to private patients to make up the difference. This then means 
private employers may pay higher premiums--all so physician-owned 
specialty hospitals can profit.
  Specialty hospitals are able to take advantage of an outdated payment 
system. The current inpatient payment rates have not been recalibrated 
in over 20 years. This has resulted in certain patients and certain 
case types being significantly more profitable to treat than others. In 
fact, specialty heart hospitals have been found by MedPAC to treat 
Medicare patients who are 13 percent more profitable than the average 
mix of patients. And at specialty surgical hospitals this number is 14 
percent.
  This bill would make corrections to the payment system so that 
certain cases and patients are not significantly more profitable or 
less profitable to treat than others. While we believe the secretary 
has the authority to make these payment changes, this bill will direct 
CMS to do so beginning in 2007. This will improve payment accuracy for 
all hospitals, and will better reflect the actual cost of delivering 
care.
  But Medicare payment changes are not enough.
  I also have great concerns about the inherent conflict of interest in 
physician ownership. This interest in gaming the system may not be in 
the best interest of the patient, and this is troubling. Physicians are 
paid by Medicare to treat the patient. In addition, because they are 
owners of the hospital, physician owners get a payment from Medicare 
for use of the facility. And, because they are also investors in the 
hospital, these physician owners also get dividends on their 
investment. MedPAC found these annual dividends for older facilities 
are frequently in excess of 20 percent.
  I am concerned that this focus on profit may unduly influence 
physician decision-making on the part of some physicians. This is not 
good for unsuspecting patients, the Medicare program or taxpayers. Some 
physicians may choose where to send a patient based on whether or not 
they think that patient will profit their hospital. In addition, 
changes to the payment system don't prevent some physician-owners from 
selecting patients based on their insurance. Specialty hospitals would 
likely continue to treat few--if any--poor or uninsured patients.
  MedPAC has found that specialty hospital hospitals treat far fewer 
Medicaid recipients than community hospitals in the same market--75 
percent fewer for specialty heart hospitals, and 94 percent fewer for 
specialty orthopedic hospitals. In addition, CMS found that specialty 
hospitals provided only about 40 percent of the share of uncompensated 
care that the local community hospitals provided. We now have 45 
million uninsured Americans in our country, and I continue to be very 
concerned about their health care.
  Congress has passed laws that, with very few exceptions, prevent 
physician physicians from referring Medicare and Medicaid patients to 
facilities in which they are owners. This was adopted in response to a 
number of studies that found that physician-owners tended to make more 
referrals to their facilities and order substantially more services at 
higher cost.
  One exception, however, is the ``whole hospital'' exception. The law 
allows physicians to invest in a ``whole hospital'' because it is 
believed that no particular referral would economically advantage a 
specific physician owner. Because the referrals would be diluted across 
multiple services, there would not be a direct link to any one 
physician's income. But specialty hospitals are not really whole 
hospitals. In fact, they are more like a hospital department such as a 
cardiac unit or an orthopedic unit. Under current law, we believe that 
the secretary has the authority to define what constitutes a whole 
hospital, and we encourage CMS to determine whether specialty hospitals 
meet this definition. The law clearly states that it is illegal for 
physicians to invest in hospital departments.
  This loophole in the law, the ``whole hospital'' exception, is being 
exploited. The Hospital Fair Competition Act will close this loophole. 
New specialty hospitals will not qualify for the ``whole hospital'' 
exception as of June 8, 2005--the date the moratorium expires.
  Existing specialty hospitals, those in operation or under development 
before November 18, 2003, will be able to continue operating under 
certain restrictions. These ``grandfathered'' specialty hospitals will 
be prohibited from increasing their total number of physician owners. 
Also, the bill caps each individual physician's investment and the 
aggregate physician investment in the facility as of June 8, 2005. 
Grandfathered specialty hospitals will not be allowed to expand their 
scope of services. And finally, they will be prohibited from increasing 
their number of beds or operating rooms. I believe that halting the 
growth in physician ownership at existing specialty hospitals is the 
only way to prevent the inherent conflict of interest associated with 
self-referral, and ensure that patients' interests are not compromised.
  Now, I have heard from a number of physician-owners on this issue and 
they have said to me that they invest in these hospitals because it 
allows them to have greater control over their workplace. It gives them 
a say in operations, and more control over the quality and cost of 
patient care. I believe that certain coordinated care incentive 
arrangements have the potential to assist physicians in doing just 
that.
  So this bill would provide an opportunity to better align physician 
and hospital financial incentives. It would allow physicians to share 
in hospital savings achieved by re-engineering clinical care in the 
hospitals. These well-designed and approved arrangements might include 
agreed-upon use of certain medical devices or implants for certain type 
of surgeries. Or perhaps they would include improving operating room 
efficiency and scheduling. Or they might include the adoption of 
clinical protocols or evidence-based medicine to standardize certain 
aspects of the practice of medicine.
  While these arrangements have the potential to improve patient care 
while reducing hospital costs, I want to make sure the patient--the 
Medicare beneficiary--is protected. So, this bill would require the 
secretary to develop safeguards and monitor these coordinated care 
arrangements to make sure that physicians are not profiting for 
increased referrals or for reducing quality care.
  In summary, The Hospital Fair Competition Act would:
  Improve the accuracy of Medicare inpatient payments by directing the 
secretary to level the playing field by using estimated costs rather 
than charges in setting the DRG weights; calculating DRG weights at the 
hospital level before aggregating them to a national level; adjusting 
the DRG weights to account for high cost outlier payments, and ensuring 
that the DRGs appropriately capture differences in the severity of 
illness of patients.
  Allow existing specialty hospitals to continue operation under 
certain restrictions, especially regarding physician investment.
  Close the ``whole hospital'' loophole by prohibiting new specialty 
hospitals from having ownership or investment interest from physicians 
who refer Medicare or Medicaid patients to the hospital, effective June 
8, 2005.
  Allow physicians and hospitals to enter into certain coordinated care 
arrangements where physicians could share in savings experienced by a 
hospital by implementing certain cost-reduction efforts.
  Establish safeguards to ensure that coordinated care arrangements 
protect quality of care and minimize any impact on physician referrals.
  I urge all my colleagues to join Senator Baucus and me in support of 
this very important bill.
  Mr. BAUCUS. Mr. President, I rise today to join Chairman Grassley in 
introducing the Hospital Fair Competition Act of 2005.
  This bill, based primarily on recommendations of the Medicare Payment 
Advisory Commission (MedPAC), will improve the accuracy of Medicare's 
inpatient hospital prospective payment system (PPS); prevent the 
establishment of new specialty hospitals to which physician-owners can 
self-

[[Page S4948]]

refer, while allowing existing physician-owned specialty hospitals to 
continue with restrictions; and allow ``gainsharing'' arrangements to 
foster improved physician-hospital efficiency. This legislation is 
important for patients, taxpayers, and the Medicare program, and I urge 
my colleagues to support it.
  About 17 months ago, Congress passed the Medicare Modernization Act--
the MMA. This 400-page bill included many important provisions, 
including long-awaited outpatient drug benefits under Medicare.
  The MMA also included a small provision--Section 507--related to the 
construction of physician-owned specialty hospitals. These facilities 
specialize in cardiac, orthopedic or general surgical care, and are 
partly- or wholly-owned by physicians. The provision was a response to 
growing concerns over physician self-referral, and placed a moratorium 
on the construction of new, physician-owned specialty hospitals, while 
``grandfathering'' existing facilities and those in development.
  Having reviewed several independent analyses on this issue, I believe 
Congress was right to place a moratorium on specialty hospital 
construction. And I also believe that moratorium should effectively be 
extended permanently, while allowing existing facilities to continue 
operating in their current capacity.
  Some view specialty hospitals as innovative, focused factories for 
high-quality, specialized care. Advocates for these facilities say that 
by focusing on a limited number of services, specialty hospitals 
provide excellent care at a good price, while adding competition to the 
health care marketplace.
  Others say specialty hospitals flourish because they exploit a 
Medicare loophole allowing physician-owners to select patients who are 
healthier and, therefore, more profitable.
  For my part, I don't want to stand in the way of innovation or 
competition. For example, I'm glad that Congress brought innovation to 
Medicare in the form of outpatient drug benefits. That was long 
overdue.
  And hospitals and physicians should work together in innovative ways 
to improve efficiency in health care. The U.S. spends twice as much--or 
more--per-person on health care compared to any other developed 
country. And yet, our health outcomes are worse than theirs. We should 
get a better bang for our health-care buck, and we can take steps to 
that end by encouraging quality and accountability in health care.
  That's why I am pushing to advance incentives for quality improvement 
in Medicare, so patients--and taxpayers--get the most for their money. 
I introduced legislation last year to require that Medicare pay 
dialysis providers and Medicare managed care plans based on the quality 
of care they provide. And I am working on legislation to extend these 
principles of paying for quality to other parts of Medicare.
  As for competition, I'm all for it--as long as it's carried out on a 
level playing field. But when it comes to physician ownership of 
specialty hospitals, I'm not convinced the playing field is level. 
That's because physicians alone choose where patients go on the playing 
field--either to community hospitals or specialty hospitals. Some liken 
physician-owners of specialty hospitals to coaches who choose the 
starting lineup for both teams--in this case, the specialty hospital 
team and the community hospital team.
  And for the third time, a Federal agency has told us that the 
healthiest teams, that is, the most profitable patients, end up at 
physician-owned specialty hospitals.
  In 2003, the non-partisan Government Accountability Office (GAO) 
reported that, by and large, specialty hospitals care for relatively 
healthier patients than their community hospital counterparts. GAO 
surveyed 25 specialty hospitals, and found that 21 of the 25 had a less 
acute mix patients than community hospitals. GAO determined that of the 
hospitals studied, 17 percent cardiac patients seen by specialty 
hospitals could be classified as severe cases, compared with 22 percent 
in general hospitals. And about 5 percent of orthopedic cases in 
specialty hospitals were severe, compared with 8 percent in community 
hospitals.
  Earlier this year, on March 8, MedPAC issued its MMA-mandated report 
on specialty hospitals, and arrived at findings similar to those of the 
GAO. MedPAC found that despite shorter lengths of stay, physician-owned 
specialty hospitals are not more cost efficient than community 
hospitals. MedPAC found that specialty hospitals tend to treat lower 
shares of Medicaid patients than community hospitals. And, just as GAO 
did, MedPAC found that specialty hospitals treat patients who are 
generally less sick--and therefore, more profitable--compared to 
community hospitals.
  And while the Department of Health and Human Services has not 
officially issued its MMA-mandated report on the topic--but is expected 
to shortly--HHS reported on March 8 that, based on the small number of 
facilities it studied, specialty hospitals tend to care for a healthier 
patient population than their community hospital counterparts.
  I believe the phenomenon of specialty hospitals treating healthier 
patients is the result of a loophole in the Stark self-referral law. 
This loophole--related to the ``whole hospital exception''--is one that 
should be closed. If it is not closed, Congress will effectively 
sanction the practice of physician self-referral that has been 
prohibited for years.
  In 1989, the HHS Inspector General reported that patients of 
referring physicians who owned or invested in independent clinical labs 
received 45% more lab services than Medicare patients in general.
  In 1992, a study found that physical therapy visits per patient were 
39% to 45% higher in facilities with physician ownership compared to 
those without. In short, the authors of the study found that 
utilization and charges per-patient were higher when facilities were 
owned by physicians with an ownership interest.
  In response to these studies and others like them, Congress passed 
the Stark laws, to prevent physician self-referral, first in the area 
of clinical labs, and subsequently in 10 other areas, including 
physical therapy and certain imaging procedures.
  But the Stark laws did not address the issue of physician self-
referral to specialty hospitals. In part, that's because there weren't 
many specialty hospitals at the time. As the GAO pointed out in its 
2003 report, the vast majority of specialty hospitals were built in 
1992 or later.
  Instead, the Stark law included a provision that has come to be known 
as the ``whole hospital exception.'' While the Stark law prohibits 
physicians with ownership interest in only a hospital department from 
referring patients to that department, the law does allow physicians to 
refer to a facility they partially own, under two conditions. First, 
the physician must have admitting privileges in that hospital. Second, 
the physician must have a financial interest in the ``whole hospital,'' 
not just a department of the hospital.
  As the GAO explained in 2003:

     ``The premise [of the whole hospital exception] is that any 
     referral or decision made by a physician who has a stake in 
     an entire hospital would produce little personal economic 
     gain because hospitals tend to provide a diverse and large 
     group of services. However, the Stark law does prohibit 
     physicians who have ownership interest only in a hospital 
     subdivision from referring patients to that subdivision. With 
     respect to specialty hospitals, the concern exists that, as 
     these hospitals are usually much smaller in size and scope 
     than general hospitals and closer in size to hospital 
     departments, the exception to Stark could allow physician 
     owners to influence their hospitals'--and therefore their own 
     financial gain through practice patterns and referrals.''

  The problem with the ``whole hospital'' loophole is that it treats a 
10-bed surgical facility the same as a 500-bed community hospital, even 
though that 10-bed facility more resembles a department of the 500-bed 
hospital than it does the hospital itself. This loophole is unfair, and 
our bill closes it, by preventing the establishment of new specialty 
hospitals to which physician-owners can self-refer.

  Let me note that our bill does nothing to prevent the construction of 
new specialty hospitals--as long as self-referral is not part of the 
business model. Hospitals specializing in one type of care or another 
have existed in this country for years, and should be encouraged--as 
long as their owners and referrers are not one and the same.
  Opponents of this bill will likely make at least three claims. First, 
they

[[Page S4949]]

will state that preventing the construction of new, physician-owned 
specialty hospitals is anticompetitive. Second, they will suggest that 
since the average physician-owner's share in a specialty hospital is 
small, economic incentives to self-refer are minimal. Third, they will 
claim the bill thwarts health care quality. Let me take these claims in 
turn.
  As I stated previously, I am all for competition--as long as it's 
fair. But I don't think it's fair to further a system in which 
physician-owners can send healthier and more profitable patients to 
facilities they own, while sending sicker, less-profitable ones to 
hospitals they don't own. There's a reason Congress acted to mitigate 
the effects of physician self referral over 15 years ago, and I see no 
reason why that principle should not be extended to the specialty 
hospital setting.
  On the issue of economic incentives, some argue that physician self-
referral to specialty hospitals is a non-issue, since physicians 
typically own a very small share of a particular facility. In fact, 
MedPAC found that in about one-third of specialty hospitals they 
surveyed, the largest share owned by a single physician was just two 
percent. And as a group, physicians own just over a third of the 
typical heart hospital. But MedPAC also pointed out that about one-
third of orthopedic and surgical hospitals were owned almost entirely 
by their physicians. Perhaps more important, MedPAC showed that even a 
relatively small ownership interest can reap large profits for an 
individual physician investor. Page 21 of MedPAC's March report on 
specialty hospitals says:

     What is the order of magnitude of physicians financial 
     incentives to increase utilization when they own a hospital? 
     What follows is a hypothetical example of the marginal profit 
     associated with a group of cardiologists each referring just 
     one additional patient (above the current patient load) for 
     coronary artery bypass graft (CABG) surgery. In fiscal year 
     2002, the base payment for CABG surgery with cardiac 
     catheterization (DRG 107) was roughly $24,000. Our 
     examination of Medicare cost reports and hospital financial 
     statements suggests that variable costs equal approximately 
     60 percent of the DRG payment, roughly $14,400. Hence the 
     marginal profit--payments minus variable cost--would be 
     $9,600 per patient ($24,000-$14,400). If 10 cardiologists 
     owned a 3 percent interest each and they all induced one 
     additional surgery per year, each cardiologist's income would 
     increase by $2,880 ($9,600 3% 10).''

  In other words, even a small ownership share--just three percent--can 
provide a strong profit motive--and a strong incentive toward self-
referral.
  Finally, let me address the third claim that will likely be made 
against this bill--that it thwarts the provision of quality care. 
Specialty hospital advocates claim that due to the focused nature of 
their mission, physician-owned specialty hospitals provide better 
quality and outcomes than their community hospital counterparts. But 
recently the New England Journal of Medicine published a study showing 
that patients undergoing certain heart procedures in specialty 
hospitals were less likely to have coexisting conditions than those 
being treated at general hospitals. The authors of the study stated, 
``. . . given that we found no significant differences in outcomes 
between specialty and general hospitals with similar volumes or between 
specialty cardiac hospitals and specialized general hospitals, it could 
be argued that the specialty-hospital model itself does not yield 
better outcomes.'' They also said, ``. . . our study provides no 
definitive evidence that cardiac specialty hospitals provide better or 
more efficient care than general hospitals with similar procedural 
volumes.''
  In short, there is solid evidence that despite being less efficient, 
physician-owned specialty hospitals care for healthier, more-profitable 
patients, leaving community hospitals to care for sicker, less-
profitable ones. Economic incentives toward physician self-referral in 
specialty hospitals are significant. And there is slim evidence that 
specialty hospitals provide better care than community hospitals.
  Given this evidence, it's clear that Congress should not facilitate 
the construction of more physician-owned specialty hospitals. And while 
we support ``grandfathering'' existing facilities, let me make clear 
that we do not intend to create another grandfathering period if the 
legislation is not enacted before June 8, 2005. The intent of this 
bill, even if it passes after June 8, is to effectively make permanent 
the MMA-mandated moratorium.
  But this bill does more than simply prevent the establishment of new, 
physician-owned specialty hospitals. It also takes steps to mitigate 
ill incentives in the inpatient PPS, by making the PPS more accurate 
for all providers of hospital care--community hospitals and 
`grandfathered' specialty hospitals alike.
  Medicare spends about $100 billion per year on inpatient hospital 
services, and it's important that this system be accurate. Accordingly, 
MedPAC recommended a number of steps to improve the accuracy of the 
Medicare inpatient payment system. These recommendations should 
mitigate incentives for all hospitals to choose healthy patients over 
sick ones, and to focus on some diagnoses at the expense of others.
  Medicare pays hospitals for inpatient services based on roughly 500 
Diagnosis Related Groups (DRGs), which bundle services needed to treat 
a patient with a particular disease. DRGs cover most routine operating 
costs attributable to patient care, including routine nursing services, 
room and board, and diagnostic and ancillary services. Under current 
law, just over five percent of the base payment for all DRGs is set 
aside for inpatient outlier payments, even though some DRGs have almost 
no outlier cases. The Hospital Fair Competition Act directs the 
Secretary to adjust the DRG relative weights to account for differences 
in the prevalence of high-cost outlier cases, thereby removing their 
disproportionate impact on the payment system.

  The bill also improves accuracy of the DRG weights. Currently DRG 
weights are based on the national average of hospital charges for a 
particular DRG. The rate of growth for these charges may vary 
dramatically, depending on the service. For example, MedPAC has found 
that hospital markups for ancillary services (e.g., supplies, operating 
room time) tend to be higher than those of routine services (e.g., room 
and board, nursing care). As these ancillary and routine charges grow 
at different rates, the DRGs reflect that growth, gradually skewing the 
system away from the true costs of providing care. In short, a charge-
based system causes Medicare to pay too much for some services, not 
enough for others. The Hospital Fair Competition Act directs the 
Secretary to substitute the charge-based system with one based on 
hospitals' costs, as well as base the DRG weights on the national 
average of hospitals' relative values in each DRG.
  Mind you, we believe that the Secretary currently has the authority 
to make the payment changes outlined above. The Hospital Fair 
Competition Act simply directs the Secretary to do so. We also believe 
the Secretary has the authority to promulgate regulations defining what 
a ``whole hospital'' is. When Congress passed the ``whole hospital 
exception'', it did not intend to allow self-referral to facilities 
that are effectively the equivalent of a hospital wing or department. 
We believe the Secretary can and should exercise his authority to close 
the ``whole hospital'' loophole by regulation.
  Mr. President, some say that the proliferation of physician-owned 
specialty hospitals is a function of physicians' desire for control 
over their workplace. They argue that physicians typically have no say 
in day-to-day hospital operations, and thus little incentive to improve 
the quality or efficiency of the care they provide in the hospital. 
MedPAC's recommendations for ``gainsharing'' stand to alleviate some of 
that concern, by giving physicians more control over their workplace.
  Gainsharing arrangements allow physicians and hospitals to improve 
hospital efficiency without the undesirable effects of physician self-
referral. In a gainsharing arrangement, hospitals and physicians share 
cost-savings gained by means such as streamlining the purchase of 
medical devices, substituting less-costly items used in surgical 
procedures, and maximizing operating room efficiency. While gainsharing 
arrangements must be developed carefully so as not to compromise 
quality of patient care, gain sharing has the potential to align 
physician-hospital incentives so that care

[[Page S4950]]

can be delivered in the most cost-effective manner.
  I realize that gainsharing arrangements are not a panacea toward 
improving physician-hospital relations. We can and should do more to 
give providers of all types a better stake in improving their workplace 
and the quality of care they provide. That's why I am pushing 
initiatives to tie Medicare payment to quality, so that--unlike the 
current system--the best providers are not paid the same rates as 
mediocre ones. This system of paying for quality stands to improve 
accountability across the spectrum of Medicare provider types, and give 
both patients and the government more for their money.
  We all know that Medicare's long-term fiscal future is much in doubt. 
Hardly a day passes without a warning about Medicare's finances and the 
retirement of the Baby Boom generation that will complicate the long-
term financial picture of the program.
  Given these warnings, it's imperative that we make the most of the 
resources at hand, and--where possible--make Medicare a better more 
responsible buyer of health care. By leveling the playing field 
regarding patient referrals; improving the accuracy of Medicare's 
inpatient hospital payments; and giving physicians a larger stake in 
their hospital workplaces, this bill stands to do that.
  Chairman Grassley and I believe these changes will go a long way 
toward improving much of what ails hospital payment under Medicare, and 
we urge our colleagues' support for this important legislation.
                                 ______
                                 
      By Mr. McCAIN:
  S. 1003. A bill to amend the Act of December 22, 1974, and for other 
purposes; to the Committee on Indian Affairs.
  Mr. McCAIN. Mr. President, today I am introducing legislation to 
amend the Navajo-Hopi Land Settlement Act of 1974 in order to bring the 
relocation process to an orderly conclusion. I look forward to working 
with all affected parties on this bill and will work with them to 
ensure it takes into account their views. This bill will phase out the 
Navajo-Hopi relocation program by September 30, 2008, and at that time 
transfer all remaining responsibilities to the Secretary of the 
Interior. It provides a time certain for eligible Navajo and Hopi 
individuals to apply for and receive relocation benefits and after that 
time the Federal Government will no longer be obligated to provide 
replacement homes for those individuals. Under this legislation, the 
funds that would have been used to provide replacement homes to such 
individuals will be held in trust by the Secretary for distribution to 
the individual or their heirs.
  The Navajo-Hopi Land Settlement Act of 1974 was enacted to resolve 
longstanding disputes that have divided the Navajo and Hopi Indian 
Tribes for over a century. The origins of this dispute can be traced 
directly to the creation of the 1882 reservation for the Hopi Tribe and 
the subsequent creation of the 1934 Navajo Reservation. At the time 
these reservations were established, Navajo families lived within the 
lands set aside for the Hopi Tribe and Hopi families lived within lands 
set aside for the Navajo Nation and tensions between the two tribes 
continued to heighten. In 1958 Congress, in an effort to resolve this 
dispute, passed legislation that authorized the tribes to file suit in 
Federal court to quiet title the 1882 reservation and to their 
respective claims and rights. That legislation gave rise to over 35 
years of continuous litigation between the tribes in an effort to 
resolve their respective rights and claims to the land.
  In 1974, Congress enacted the Navajo-Hopi Land Settlement Act which 
established Navajo and Hopi negotiating teams under the auspices of a 
Federal mediator to negotiate a settlement to the 1882 reservation land 
dispute. The act also authorized the tribes to file suit in Federal 
court to quiet title the 1934 reservation and to file claims for 
damages arising out of the dispute against each other or the United 
States. The act also established a three member Navajo-Hopi Indian 
Relocation Commission to oversee the relocation of members of the 
Navajo Nation who were living on lands partitioned to the Hopi Tribe 
and members of the Hopi Tribe who were living on lands partitioned to 
the Navajo Nation. Since its establishment, the relocation program has 
been an extremely difficult and contentious process.
  When this program was first established, the estimated cost of 
providing relocation benefits to approximately 6,000 Navajos estimated 
eligible for relocation was roughly $40 million. These figures woefully 
underestimated the number of families impacted by relocation and the 
tremendous delays that have plagued this program. By 1996, the United 
States had expended over $350 million to relocate more than 11,000 
Navajo and Hopi tribal members. At that time, there remained over 640 
eligible families who had never received relocation benefits and an 
additional 50 to 100 families who had never applied for relocation 
benefits. There were also over 130 eligibility appeals pending. Without 
question, the funding for this settlement has far exceeded the original 
cost estimates by more than 1000 percent. Since 1975, Congress 
has appropriated over $440 million for this program.

  At its inception, the relocation program was intended to be a 
temporary program that was established to fulfill a specific mission 
and we cannot continue to fund it with no end in sight. Moreover, I am 
convinced that our current Federal budgetary pressures require us to 
ensure that the Navajo-Hopi relocation housing program is brought to an 
orderly and certain conclusion. It is for that reason that I am 
introducing the Navajo-Hopi Land Settlement Act Amendments of 2005. 
This legislation will phase out the Navajo-Hopi Indian relocation 
program by September 30, 2008, and transfer the remaining 
responsibilities under the act to the Secretary of the Interior. Under 
the bill, the relocation commissioner shall transfer to the Secretary 
such funds as are necessary to construct replacement homes for any 
eligible head of household who has left the Hopi partitioned land but 
who has not received a replacement home by September 30, 2008. These 
funds will be held in trust by the Secretary of the Interior for 
distribution to such individual or their heirs. In addition, the bill 
includes provisions establishing an expedited procedure for handling 
appeals of final eligibility determinations.
  This bill is similar to the legislation I introduced during the 104th 
Congress. S. 1111 proposed to phase out the relocation program by 
September 2001. A hearing was held on that bill and comments were 
received from the affected parties. At that time, many of the witnesses 
stated that with limited exception, the program could come to a 
resolution under the time line proposed in S. 1111. Opposition to 
passing the legislation was based in part on the incomplete process of 
approval of the accommodation lease agreements between the Hopi Tribe 
and individual Navajos who were still living on the Hopi partitioned 
lands. That action has since occurred and the Commission has had eight 
additional years to conclude its responsibilities. Therefore, it is now 
time for the Congress to act to bring the long and difficult process of 
relocation to an orderly conclusion.
  I ask unanimous consent that the full text of the bill be printed in 
the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1003

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Navajo-
     Hopi Land Settlement Amendments of 2005''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.

   TITLE I--AMENDMENTS TO THE NAVAJO-HOPI LAND SETTLEMENT ACT OF 1974

Sec. 101. Repeal of sections.
Sec. 102. Definitions; division of land.
Sec. 103. Joint ownership of minerals.
Sec. 104. Actions.
Sec. 105. Paiute Indian allotments.
Sec. 106. Partitioned and other designated land.
Sec. 107. Resettlement land for Navajo Tribe.
Sec. 108. Office of Navajo and Hopi Indian Relocation.
Sec. 109. Report.
Sec. 110. Relocation of households and members.
Sec. 111. Relocation housing.
Sec. 112. Payment for use of land.
Sec. 113. Effect of Act.

[[Page S4951]]

Sec. 114. Actions for accounting, fair value of grazing, and claims for 
              damages to land.
Sec. 115. Joint use.
Sec. 116. Religious ceremonies; piping of water.
Sec. 117. Access to religious shrines.
Sec. 118. Exclusion of payments from certain Federal determinations of 
              income.
Sec. 119. Authorization of exchange.
Sec. 120. Severability.
Sec. 121. Authorization of appropriations.
Sec. 122. Funding and construction of high school and medical center.
Sec. 123. Environmental impact; wilderness study; cancellation of 
              leases and permits.
Sec. 124. Attorney fees and court costs.
Sec. 125. Lobbying.
Sec. 126. Navajo Rehabilitation Trust Fund.
Sec. 127. Availability of funds for relocation assistance.

 TITLE II--PERSONNEL OF THE OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION

Sec. 201. Retention preference.
Sec. 202. Separation pay.
Sec. 203. Federal retirement.

        TITLE III--TRANSFER OF FUNCTIONS AND SAVINGS PROVISIONS

Sec. 301. Definitions.
Sec. 302. Transfer of functions.
Sec. 303. Transfer and allocations of appropriations.
Sec. 304. Effect of title.

          TITLE I--AMENDMENTS TO THE ACT OF DECEMBER 22, 1974

     SEC. 101. REPEAL OF SECTIONS.

       (a) In General.--The Act of December 22, 1974 (25 U.S.C. 
     640d et seq.) is amended in the first undesignated section by 
     striking ``That, (a) within'' and all that follows through 
     the end of the section.
       (b) Additional Repeals.--Sections 2 through 5 and sections 
     26 and 30 of the Act of December 22, 1974 (25 U.S.C. 640d-1 
     through 640d-4; 88 Stat. 1723; 25 U.S.C. 640d-28) are 
     repealed.

     SEC. 102. DEFINITIONS; DIVISION OF LAND.

       Section 6 of the Act of December 22, 1974 (25 U.S.C. 640d-
     5) is amended--
       (1) by striking ``Sec.  6. The Mediator'' and all that 
     follows through subsection (f) and inserting the following:

     ``SECTION 1. DEFINITIONS.

       ``In this Act:
       ``(1) District court.--The term `District Court' means the 
     United States District Court for the District of Arizona.
       ``(2) Secretary.--The term `Secretary' means the Secretary 
     of the Interior.
       ``(3) Tribe.--The term `Tribe' means--
       ``(A) the Navajo Indian Tribe; and
       ``(B) the Hopi Indian Tribe.

     ``SEC. 2. DIVISION OF LAND.

       ``(a) Division.--
       ``(1) In general.--The land located within the boundaries 
     of the reservation established by Executive order on December 
     16, 1982, shall be divided into parcels of equal acreage and 
     quality--
       ``(A) to the maximum extent practicable; and
       ``(B) in accordance with the final order issued by the 
     District Court on August 30, 1978 (providing for the 
     partition of the surface rights and interest of the Tribes).
       ``(2) Valuation of parcels.--For the purpose of calculating 
     the value of a parcel produced by a division under paragraph 
     (1), the Secretary shall--
       ``(A) take into account any improvement on the land; and
       ``(B) consider the grazing capacity of the land to be fully 
     restored.
       ``(3) Compensation by tribes.--If the partition under 
     paragraph (1) results in parcels of unequal value, as 
     determined by the Secretary, the Tribe that receives the more 
     valuable parcel shall pay to the other Tribe compensation in 
     an amount equal to the difference in the values of the 
     parcels, as determined by the Secretary.
       ``(4) Compensation by federal government.--If the District 
     Court determines that the failure of the Federal Government 
     to fulfill an obligation of the Government decreased the 
     value of a parcel under paragraph (1), the Government shall 
     pay to the recipient of the parcel compensation in an amount 
     equal to the difference between--
       ``(A) the decreased value of the parcel; and
       ``(B) the value of the fully restored parcel.'';
       (2) by striking ``(g) Any'' and inserting the following:
       ``(b) License Fees and Rents.--Any''; and
       (3) by striking ``(h) Any'' and inserting the following:
       ``(c) Grazing and Agricultural Use.--Any''.

     SEC. 103. JOINT OWNERSHIP OF MINERALS.

       Section 7 of the Act of December 22, 1974 (25 U.S.C. 640d-
     6) is amended--
       (1) by striking ``Sec.  7. Partition'' and inserting the 
     following:

     ``SEC. 3. JOINT OWNERSHIP OF MINERALS.

       ``(a) In General.--Partition''; and
       (2) in the second sentence, by striking ``All'' and 
     inserting the following:
       ``(b) Joint Management.--All''.

     SEC. 104. ACTIONS.

       Section 8 of the Act of December 22, 1974 (25 U.S.C. 640d-
     7) is amended--
       (1) by striking ``Sec.  8. (a) Either Tribe'' and inserting 
     the following:

     ``SEC. 4. ACTIONS.

       ``(a) Actions in District Court.--Either Tribe'';
       (2) in subsection (b)--
       (A) in the first sentence, by striking ``(b) Lands, if 
     any,'' and inserting the following:
       ``(b) Allocation of Land.--
       ``(1) Navajo reservation.--Any land'';
       (B) in the second sentence, by striking ``Lands, if any,'' 
     and inserting the following:
       ``(2) Hopi reservation.--Any land''; and
       (C) in the third sentence, by striking ``Any lands'' and 
     inserting the following:
       ``(3) Joint and undivided interests.--Any land'';
       (3) in subsection (c)--
       (A) by striking ``(c)(1) Either'' and inserting the 
     following:
       ``(c) Exchange of Land.--
       ``(1) In general.--Either'';
       (B) in paragraph (2), by striking ``(2) In the event'' and 
     inserting the following:
       ``(2) Interests of tribes.--If'';
       (C) in paragraph (3), by striking ``(3) Neither'' and 
     inserting the following:
       ``(3) Defense.--Neither''; and
       (D) by striking ``section 18'' each place it appears and 
     inserting ``section 14'';
       (4) in subsection (d), by striking ``(d) Nothing'' and 
     inserting the following:
       ``(d) Effect of Section.--Nothing'';
       (5) in subsection (e), by striking ``(e) The'' and 
     inserting the following:
       ``(e) Payment of Legal Fees, Court Costs, and Other 
     Expenses.--The''; and
       (6) by striking subsection (f).

     SEC. 105. PAIUTE INDIAN ALLOTMENTS.

       Section 9 of the Act of December 22, 1974 (25 U.S.C. 640d-
     8) is amended by striking ``Sec.  9. Notwithstanding'' and 
     inserting the following:

     ``SEC. 5. PAIUTE INDIAN ALLOTMENTS.

       ``Notwithstanding''.

     SEC. 106. PARTITIONED AND OTHER DESIGNATED LAND.

       Section 10 of the Act of December 22, 1974 (25 U.S.C. 640d-
     9) is amended--
       (1) by striking ``Sec.  10. (a) Subject'' and inserting the 
     following:

     ``SEC. 6. PARTITIONED AND OTHER DESIGNATED LAND.

       ``(a) Navajo Trust Land.--Subject'';
       (2) in subsection (a), by striking ``section 9 and 
     subsection (a) of section 17'' and inserting ``sections 5 and 
     13(a)'';
       (3) in subsection (b)--
       (A) by striking ``(b) Subject'' and inserting the 
     following:
       ``(b) Hopi Trust Land.--Subject'';
       (B) by striking ``section 9 and subsection (a) of section 
     17'' and inserting ``sections 5 and 13(a)'';
       (C) by striking ``section 3 or 4'' and inserting ``section 
     1''; and
       (D) by striking ``section 8'' and inserting ``section 4'';
       (4) in subsection (c)--
       (A) by striking ``(c) The'' and inserting the following:
       ``(c) Protection of Rights and Property.--The''; and
       (B) by striking ``pursuant thereto'' and all that follows 
     through the end of the subsection and inserting ``pursuant to 
     this Act'';
       (5) in subsection (d), by striking ``(d) With'' and 
     inserting the following:
       ``(d) Protection of Benefits and Services.--With''; and
       (6) in subsection (e)--
       (A) by striking ``(e)(1) Lands'' and inserting the 
     following:
       ``(e) Tribal Jurisdiction Over Partitioned Land.--
       ``(1) In general.--Land'';
       (B) by adjusting the margins of subparagraphs (A) and (B) 
     of paragraph (1) appropriately; and
       (C) in the matter following subparagraph (B)--
       (i) by striking ``The provisions'' and inserting the 
     following:
       ``(2) Responsibility of secretary.--The provisions''; and
       (ii) by striking ``life tenants and''.

     SEC. 107. RESETTLEMENT LAND FOR NAVAJO TRIBE.

       (a) In General.--Section 11(a) of the Act of December 22, 
     1974 (25 U.S.C. 640d-10(a)) is amended--
       (1) by striking ``Sec.  11. (a) The Secretary'' and 
     inserting the following:

     ``SEC. 7. RESETTLEMENT LAND FOR NAVAJO TRIBE.

       ``(a) Transfer of Land.--
       ``(1) In general.--The Secretary'';
       (2) by striking ``(1) transfer not to exceed two hundred 
     and fifty thousand acres of lands'' and inserting the 
     following:
       ``(A) transfer not more than 250,000 acres of land'';
       (3) by striking ``Tribe: Provided, That'' and all that 
     follows through ``as possible.'' and inserting ``Tribe; 
     and'';
       (4) in the first paragraph designated as paragraph (2)--
       (A) by striking ``(2) on behalf'' and inserting the 
     following:
       ``(B) on behalf''; and
       (B) by striking the second sentence;
       (5) in the matter following paragraph (1)(B) (as 
     redesignated by paragraph (4))--
       (A) in the first sentence--
       (i) by striking ``Subject to'' and all that follows through 
     ``all rights'' and inserting the following:
       ``(4) Requirements of transfer.--
       ``(A) In general.--Subject to this paragraph, all rights''; 
     and
       (ii) by striking ``paragraph (1)'' and inserting 
     ``paragraph (1)(A)'';
       (B) in the second sentence, by striking ``So long as'' and 
     inserting the following:
       ``(B) Coal lease applications.--
       ``(i) In general.--If'';

[[Page S4952]]

       (C) in the third sentence, by striking ``If such 
     adjudication'' and inserting the following:
       ``(ii) Issuance of leases.--If an adjudication under clause 
     (i)'';
       (D) in the fourth sentence, by striking ``The leaseholders 
     rights and interests'' and inserting the following:
       ``(iii) Rights and interests of leaseholders.--The rights 
     and interests of a holder of a lease described in clause 
     (i)''; and
       (E) in the fifth sentence, by striking ``If any'' and 
     inserting the following:
       ``(C) Claims under mining law.--If any'';
       (6) by inserting after paragraph (1)(B) (as redesignated by 
     paragraph (4)) the following:
       ``(2) Exchange of land.--
       ``(A) In general.--In order to facilitate a transfer of 
     land under paragraph (1)(A), the Secretary may exchange land 
     described in paragraph (1)(A) for State or private land of 
     equal value.
       ``(B) Unequal value.--If the State or private land 
     described in subparagraph (A) is of unequal value to the land 
     described in paragraph (1)(A), the recipient of the land that 
     is of greater value shall pay to the other party to the 
     exchange under subparagraph (A) compensation in an amount not 
     to exceed the lesser of--
       ``(i) the difference between the values of the land 
     exchanged; or
       ``(ii) the amount that is 25 percent of the total value of 
     the land transferred from the Secretary to the Navajo Tribe.
       ``(C) Responsibility of secretary.--The Secretary shall 
     ensure that the amount of a payment under subparagraph (B) is 
     as minimal as practicable.
       ``(3) Title to land accepted.--The Secretary shall accept 
     title to land under paragraph (1)(B) on behalf of the United 
     States in trust for the benefit of the Navajo Tribe as a part 
     of the Navajo reservation.''; and
       (7) in the second paragraph designated as paragraph (2)--
       (A) in the first sentence--
       (i) by striking ``(2) Those'' and inserting the following:
       ``(5) State rights.--
       ``(A) In general.--The''; and
       (ii) by striking ``subsection 2 of this section'' and 
     inserting ``paragraph (1)(B)''; and
       (B) in the second sentence, by striking ``The'' and 
     inserting the following:
       ``(B) State interests.--The''.
       (b) Proximity of Land; Exchanges of Land.--Section 11(b) of 
     the Act of December 22, 1974 (25 U.S.C. 640d-10(b)) is 
     amended by striking ``(b) A border'' and inserting the 
     following:
       ``(b) Proximity of Land To Be Transferred or Acquired.--A 
     border''.
       (c) Selection of Land.--Section 11(c) of the Act of 
     December 22, 1974 (25 U.S.C. 640d-10(c)) is amended--
       (1) by striking ``(c) Lands'' and inserting the following:
       ``(c) Selection of Land To Be Transferred or Acquired.--
     Land''; and
       (2) by striking the period at the end and inserting the 
     following: ``: Provided further, That the authority of the 
     Commissioner to select lands under this subsection shall 
     terminate on September 30, 2008.''.
       (d) Reports.--Section 11(d) of the Act of December 22, 1974 
     (25 U.S.C. 640d-10(d)) is amended by striking ``(d) The'' and 
     inserting the following:
       ``(d) Reports.--The''.
       (e) Payments.--Section 11(e) of the Act of December 22, 
     1974 (25 U.S.C. 640d-10(e)) is amended by striking ``(e) 
     Payments'' and inserting the following:
       ``(e) Payments.--Payments''.
       (f) Acquisition of Title to Surface and Subsurface 
     Interests.--Section 11(f) of the Act of December 22, 1974 (25 
     U.S.C. 640d-10(f)) is amended--
       (1) by striking ``(f)(1) For'' and inserting the following:
       ``(f) Acquisition of Title to Surface and Subsurface 
     Interests.--
       ``(1) In general.--For'';
       (2) in paragraph (2), by striking ``(2) If'' and inserting 
     the following:
       ``(2) Public notice; report.--If''; and
       (3) in paragraph (3), by striking ``(3) In any case where'' 
     and inserting the following:
       ``(3) Rights of subsurface owners.--If''.
       (g) Land Not Available for Transfer.--Section 11(g) of the 
     Act of December 22, 1974 (25 U.S.C. 640d-10(g)) is amended by 
     striking ``(g) No'' and inserting the following:
       ``(g) Land Not Available for Transfer.--No''.
       (h) Administration of Land Transferred or Acquired.--
     Section 11(h) of the Act of December 22, 1974 (25 U.S.C. 
     640d-10(h)) is amended--
       (1) by striking ``(h) The lands'' and inserting the 
     following:
       ``(h) Administration of Land Transferred or Acquired.--
       ``(1) In general.--The land''; and
       (2) by adding at the end the following:
       ``(2) Relocation.--
       ``(A) In general.--In order to facilitate relocation of a 
     member of a Tribe, the Commissioner may grant a homesite 
     lease on land acquired under this section to a member of the 
     extended family of a Navajo Indian who is certified as 
     eligible to receive benefits under this Act.
       ``(B) Exception.--The Commissioner may not use any funds 
     available to the Commissioner to carry out this Act to 
     provide housing to an extended family member described in 
     subparagraph (A).''.
       (i) Negotiations Regarding Land Exchanges and Leases.--
     Section 11(i) of the Act of December 22, 1974 (25 U.S.C. 
     640d-10(i)) is amended--
       (1) by striking ``(i) The'' and inserting the following:
       ``(i) Negotiations Regarding Land Exchanges and Leases.--
     The''; and
       (2) by striking ``section 23'' and inserting ``section 
     19''.

     SEC. 108. OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION.

       Section 12 of the Act of December 22, 1974 (25 U.S.C. 640d-
     11) is amended--
       (1) by striking ``Sec. 12. (a) There is hereby'' and 
     inserting the following:

     ``SEC. 8. OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION.

       ``(a) Establishment.--There is'';
       (2) in subsection (b), by striking ``(b) The'' and 
     inserting the following:
       ``(b) Appointment.--The'';
       (3) in subsection (c)--
       (A) by striking ``(c)(1)(A) Except'' and inserting the 
     following:
       ``(c) Continuation of Powers.--
       ``(1) Powers and duties of commissioner; existing funds.--
       ``(A) Powers and duties of commissioner.--Except'';
       (B) in paragraph (1)(B), by striking ``(B) All'' and 
     inserting the following:
       ``(B) Existing funds.--All''; and
       (C) in paragraph (2), by striking ``(2) There are hereby'' 
     and inserting the following:
       ``(2) Transfer of powers.--There are'';
       (4) in subsection (d)--
       (A) by striking ``(d)(1) Subject'' and inserting the 
     following:
       ``(d) Powers of Commissioner.--
       ``(1) In general.--Subject'';
       (B) by adjusting the margins of subparagraphs (A) and (B) 
     of paragraph (1) appropriately;
       (C) in paragraph (2), by striking ``(2) The'' and inserting 
     the following:
       ``(2) Contracts.--The''; and
       (D) in paragraph (3), by striking ``(3) There'' and 
     inserting the following:
       ``(3) Authorization of appropriations.--There'';
       (5) in subsection (e)--
       (A) by striking ``(e)(1)'' and inserting the following:
       ``(e) Administration.--
       ``(1) Administrative, fiscal, and housekeeping services.--
       (B) in paragraph (1)--
       (i) in the first sentence, by striking ``The'' and 
     inserting the following:
       ``(A) In general.--The''; and
       (ii) in the second sentence, by striking ``In any'' and 
     inserting the following:
       ``(B) Assistance from departments and agencies.--In any''; 
     and
       (C) in paragraph (2), by striking ``(2) On'' and inserting 
     the following:
       ``(2) Failure to provide assistance.--On'';
       (6) by striking subsection (f) and inserting the following:
       ``(f) Termination.--
       ``(1) In general.--The Office of Navajo and Hopi Indian 
     Relocation shall terminate on September 30, 2008.
       ``(2) Transfer of office duties.--On the date of 
     termination of the Office, any duty of the Office that has 
     not been carried out, as determined in accordance with this 
     Act, shall be transferred to the Secretary in accordance with 
     title III of the Navajo-Hopi Land Settlement Amendments of 
     2005.''; and
       (7) by adding at the end the following:
       ``(g) Office of Relocation.--
       ``(1) Establishment.--Effective on October 1, 2006, there 
     is established in the Department of the Interior an Office of 
     Relocation.
       ``(2) Duties.--The Secretary, acting through the Office of 
     Relocation, shall carry out the duties of the Office of 
     Navajo and Hopi Indian Relocation that are transferred to the 
     Secretary in accordance with title III of the Navajo-Hopi 
     Land Settlement Amendments of 2005.
       ``(3) Termination.--The Office of Relocation shall 
     terminate on the date on which the Secretary determines that 
     the duties of the Office have been carried out.''.

     SEC. 109. REPORT.

       Section 13 of the Act of December 22, 1974 (25 U.S.C. 640d-
     12) is amended--
       (1) by striking ``Sec.  13. (a) By no'' and inserting the 
     following:

     ``SEC. 9. REPORT.

       ``(a) In General.--Not''; and
       (2) in subsection (b)--
       (A) by striking ``(b) The'' and inserting the following:
       ``(b) Inclusions.--The''; and
       (B) by striking ``contain, among other matters, the 
     following:'' and inserting ``include--''.

     SEC. 110. RELOCATION OF HOUSEHOLDS AND MEMBERS.

       Section 14 of the Act of December 22, 1974 (25 U.S.C. 640d-
     13) is amended--
       (1) by striking ``Sec.  14. (a)'' and inserting the 
     following:

     ``SEC. 10. RELOCATION OF HOUSEHOLDS AND MEMBERS.

       ``(a) Authorization.--'';
       (2) in subsection (a)--
       (A) in the first sentence--
       (i) by striking ``Consistent'' and inserting the following:
       ``(1) In general.--Consistent'';
       (ii) by striking ``section 8'' each place it appears and 
     inserting ``section 4''; and
       (iii) by striking ``section 3 or 4'' and inserting 
     ``section 1'';
       (B) by striking the second sentence;
       (C) in the third sentence, by striking ``No further'' and 
     inserting the following:
       ``(2) Settlements of navajo.--No further'';

[[Page S4953]]

       (D) in the fourth sentence, by striking ``No further'' and 
     inserting the following:
       ``(3) Settlements of hopi.--No further''; and
       (E) in the fifth sentence, by striking ``No individual'' 
     and inserting the following:
       ``(4) Grazing.--No individual'';
       (3) in subsection (b)--
       (A) by striking ``(b) In addition'' and inserting the 
     following:
       ``(b) Additional Payments to Heads of Households--In 
     addition'';
       (B) by striking ``section 15'' and inserting ``section 
     11''; and
       (C) by striking ``section 13'' and inserting ``section 9'';
       (4) in subsection (c), by striking ``(c) No'' and inserting 
     the following:
       ``(c) Payments for Persons Moving After a Certain Date.--
     No''; and
       (5) by adding at the end the following:
       ``(d) Prohibition.--No payment for benefits under this Act 
     may be made to any head of a household if, as of September 
     30, 2005, that head of household has not been certified as 
     eligible to receive the payment.''.

     SEC. 111. RELOCATION HOUSING.

       Section 15 of the Act of December 22, 1974 (25 U.S.C. 640d-
     14) is amended--
       (1) by striking ``Sec.  15. (a)'' and inserting the 
     following:

     ``SEC. 11. RELOCATION HOUSING.

       ``(a) Purchase of Habitation and Improvements.--'';
       (2) in subsection (a)--
       (A) in the first sentence, by striking ``The Commission'' 
     and inserting the following:
       ``(1) In general.--The Commission''; and
       (B) in the second sentence--
       (i) by striking ``The purchase'' and inserting the 
     following:
       ``(2) Purchase price.--The purchase''; and
       (ii) by striking ``as determined under clause (2) of 
     subsection (b) of section 13'';
       (3) in subsection (b)--
       (A) by striking ``(b) In addition'' and inserting the 
     following:
       ``(b) Reimbursement for Moving Expenses and Payment for 
     Replacement Dwelling.--In addition'';
       (B) by striking ``shall:'' and inserting ``shall--''; and
       (C) in paragraph (1), by inserting ``and'' after the 
     semicolon at the end;
       (4) in subsection (c)--
       (A) by striking ``(c) In implementing'' and inserting the 
     following:
       ``(c) Standards; Certain Payments.--
       ``(1) Standards.--In carrying out''; and
       (B) in the second sentence--
       (i) by striking ``No payment'' and inserting the following:
       ``(2) Certain payments.--No payment'';
       (ii) by striking ``section 8'' and inserting ``section 4''; 
     and
       (iii) by striking ``section 3 or 4'' and inserting 
     ``section 1'';
       (5) in subsection (d)--
       (A) by striking ``(d) The'' and inserting the following:
       ``(d) Methods of Payment.--The'';
       (B) by striking ``(1) Should'' and inserting the following:
       ``(1) Home ownership opportunity projects.--Should'';
       (C) by striking ``(2) Should'' and inserting the following:
       ``(2) Purchased and constructed dwellings.--Should''; and
       (D) by striking ``(3) Should'' and inserting the following:
       ``(3) Failure to arrange relocation.--Should'';
       (6) in subsection (e)--
       (A) by striking ``(e) The'' and inserting the following:
       ``(e) Disposal of Acquired Dwellings and Improvements.--
     The'';
       (B) by striking ``section 8'' and inserting ``section 4''; 
     and
       (C) by striking ``section 3 or 4'' and inserting ``section 
     1'';
       (7) in subsection (f), by striking ``(f) Notwithstanding'' 
     and inserting the following:
       ``(f) Preferential Treatment.--Notwithstanding''; and
       (8) by striking subsection (g) and inserting the following:
       ``(g) Benefits Held in Trust.--
       ``(1) In general.--Not later than September 30, 2008, the 
     Commissioner shall notify the Secretary of the identity of 
     any head of household that, as of that date--
       ``(A) is certified as eligible to receive benefits under 
     this Act;
       ``(B) does not reside on land that has been partitioned to 
     the Tribe of which the head of household is a member; and
       ``(C) has not received a replacement home.
       ``(2) Transfer of funds.--Not later than September 30, 
     2008, the Commissioner shall transfer to the Secretary any 
     funds not used by the Commissioner to make payments under 
     this Act to eligible heads of households.
       ``(3) Disposition of transferred funds.--
       ``(A) In general.--The Secretary shall hold any funds 
     transferred under paragraph (2) in trust for the heads of 
     households described in paragraph (1)(A).
       ``(B) Payment amounts.--Of the funds held in trust under 
     subparagraph (A), the Secretary shall make payments to heads 
     of households described in paragraph (1)(A) in amounts that 
     would have been made to the heads of households under this 
     Act before September 30, 2008--
       ``(i) on receipt of a request of a head of household, to be 
     used for a replacement home; or
       ``(ii) on the date of death of the head of household, if 
     the head of household does not make a request under clause 
     (i), in accordance with subparagraph (C).
       ``(C) Distribution of funds on death of head of 
     household.--If the Secretary holds funds in trust under this 
     paragraph for a head of household described in paragraph 
     (1)(A) on the death of the head of household, the Secretary 
     shall--
       ``(i) identify and notify any heir of the head of 
     household; and
       ``(ii) distribute the funds held by the Secretary for the 
     head of household to any heir--

       ``(I) immediately, if the heir is at least 18 years old; or
       ``(II) if the heir is younger than 18 years old on the date 
     on which the Secretary identified the heir, on the date on 
     which the heir attains the age of 18.

       ``(h) Notification.--
       ``(1) In general.--Not later than 180 days after the date 
     of enactment of the Navajo-Hopi Land Settlement Amendments of 
     2005, the Commissioner shall notify each eligible head of 
     household who has not entered into a lease with the Hopi 
     Tribe to reside on land partitioned to the Hopi Tribe, in 
     accordance with section 700.138 of title 25, Code of Federal 
     Regulations (or a successor regulation).
       ``(2) List.--On the date on which a notice period referred 
     to in section 700.139 of title 25, Code of Federal 
     Regulations (or a successor regulation), expires, the 
     Commissioner shall submit to the Secretary and the United 
     States Attorney for the District of Arizona a list containing 
     the name and address of each eligible head of household who--
       ``(A) continues to reside on land that has not been 
     partitioned to the Tribe of the head of household; and
       ``(B) has not entered into a lease to reside on that land.
       ``(3) Construction of replacement homes.--Before July 1, 
     2008, but not later than 90 days after receiving a notice of 
     the imminent removal of a relocatee from land provided to the 
     Hopi Tribe under this Act from the Secretary or the United 
     States Attorney for the District of Arizona, the Commissioner 
     may begin construction of a replacement home on any land 
     acquired under section 6.
       ``(i) Appeals.--
       ``(1) In general.--The Commissioner shall establish an 
     expedited hearing procedure for any appeal relating to the 
     denial of eligibility for benefits under this Act (including 
     regulations promulgated pursuant to this Act) that is pending 
     on, or filed after, the date of enactment of Navajo-Hopi Land 
     Settlement Amendments of 2005.
       ``(2) Final determinations.--The hearing procedure 
     established under paragraph (1) shall--
       ``(A) provide for a hearing before an impartial third 
     party, as the Commissioner determines necessary: and
       ``(B) ensure that a final determination is made by the 
     Office of Navajo and Hopi Indian Relocation for each appeal 
     described in paragraph (1) by not later than January 1, 2008.
       ``(3) Notice.--
       ``(A) In general.--Not later than 30 days after the date of 
     enactment of the Navajo-Hopi Land Settlement Amendments of 
     2005, the Commissioner shall provide written notice to any 
     individual that the Commissioner determines may have the 
     right to a determination of eligibility for benefits under 
     this Act.
       ``(B) Requirements for notice.--The notice provided under 
     subparagraph (A) shall--
       ``(i) specify that a request for a determination of 
     eligibility for benefits under this Act shall be presented to 
     the Commission not later than 180 days after the date on 
     which the notice is issued; and
       ``(ii) be provided--

       ``(I) by mail (including means other than certified mail) 
     to the last known address of the recipient; and
       ``(II) in a newspaper of general circulation in the 
     geographic area in which an address referred to in subclause 
     (I) is located.

       ``(j) Procurement of Services.--
       ``(1) In general.--Notwithstanding any other provision of 
     this Act, to ensure the full and fair evaluation of the 
     requests referred to in subsection (i)(3)(A) (including an 
     appeal hearing before an impartial third party referred to in 
     subsection (i)(2)(A)), the Commissioner may enter into such 
     contracts or agreements to procure such services, and employ 
     such personnel (including attorneys), as the Commissioner 
     determines to be necessary.
       ``(2) Detail of administrative law judges or hearing 
     officers.--The Commissioner may request the Secretary to act 
     through the Director of the Office of Hearings and Appeals to 
     make available to the Office of Navajo and Hopi Indian 
     Relocation an administrative law judge or other hearing 
     officer with appropriate qualifications to review the 
     requests referred to in subsection (i)(3)(A), as determined 
     by the Commissioner.
       ``(k) Appeal to United States Circuit Court of Appeals.--
       ``(1) In general.--Subject to paragraph (3), any individual 
     who, under the procedures established by the Commissioner 
     pursuant to this section, is determined not to be eligible to 
     receive benefits under this Act may appeal that determination 
     to the United States Circuit Court of Appeals for the Ninth 
     Circuit (referred to in this subsection as the `Circuit 
     Court').
       ``(2) Review.--

[[Page S4954]]

       ``(A) In general.--The Circuit Court shall, with respect to 
     each appeal described in paragraph (1)--
       ``(i) review the entire record (as certified to the Circuit 
     Court under paragraph (3)) on which a determination of the 
     ineligibility of the appellant to receive benefits under this 
     Act was based; and
       ``(ii) on the basis of that review, affirm or reverse that 
     determination.
       ``(B) Standard of review.--The Circuit Court shall affirm 
     any determination that the Circuit Court determines to be 
     supported by substantial evidence.
       ``(3) Notice of appeal.--
       ``(A) In general.--Not later than 30 days after a 
     determination of ineligibility under paragraph (1), an 
     affected individual shall file a notice of appeal with--
       ``(i) the Circuit Court; and
       ``(ii) the Commissioner.
       ``(B) Certification of record.--On receipt of a notice 
     under subparagraph (A)(ii), the Commissioner shall submit to 
     the Circuit Court the certified record on which the 
     determination that is the subject of the appeal was made.
       ``(C) Review period.-- Not later than 60 days after 
     receiving a certified record under subparagraph (B), the 
     Circuit Court shall conduct a review and file a decision 
     regarding an appeal in accordance with paragraph (2).
       ``(D) Binding decision.--A decision made by the Circuit 
     Court under this subsection shall be final and binding on all 
     parties.''.

     SEC. 112. PAYMENT FOR USE OF LAND.

       Section 16 of the Act of December 22, 1974 (25 U.S.C. 640d-
     15) is amended--
       (1) by striking ``Sec. 16. (a) The Navajo'' and inserting 
     the following:

     ``SEC. 12. PAYMENT FOR USE OF LAND.

       ``(a) In General.--The Navajo'';
       (2) in subsection (a), by striking ``sections 8 and 3 or 
     4'' and inserting ``sections 1 and 4''; and
       (3) in subsection (b)--
       (A) by striking ``(b) The'' and inserting the following:
       ``(b) Payment.--The''; and
       (B) by striking ``sections 8 and 3 or 4'' and inserting 
     ``sections 1 and 4''.

     SEC. 113. EFFECT OF ACT.

       Section 17 of the Act of December 22, 1974 (25 U.S.C. 640d-
     16) is amended--
       (1) by striking ``Sec. 17. (a)'' and inserting the 
     following:

     ``SEC. 13. EFFECT OF ACT.

       ``(a) Title, Possession, and Enjoyment.--'';
       (2) in subsection (a)--
       (A) in the first sentence, by striking ``Nothing'' and 
     inserting the following:
       ``(1) In general.--Nothing''; and
       (B) in the second sentence, by striking ``Such'' and 
     inserting the following:
       ``(2) Residence on other reservations.--Any''; and
       (3) in subsection (b), by striking ``(b) Nothing'' and 
     inserting the following:
       ``(b) Federal Employees.--Nothing''.

     SEC. 114. ACTIONS FOR ACCOUNTING, FAIR VALUE OF GRAZING, AND 
                   CLAIMS FOR DAMAGES TO LAND.

       Section 18 of the Act of December 22, 1974 (25 U.S.C. 640d-
     17) is amended--
       (1) by striking ``Sec. 18. (a) Either'' and inserting the 
     following:

     ``SEC. 14. ACTIONS FOR ACCOUNTING, FAIR VALUE OF GRAZING, AND 
                   CLAIMS FOR DAMAGES TO LAND.

       ``(a) Actions by Tribes.--Either'';
       (2) in subsection (a), by striking ``section 3 or 4'' and 
     inserting ``section 1'';
       (3) in subsection (b)--
       (A) by striking ``(b) Neither'' and inserting the 
     following:
       ``(b) Defenses.--Neither''; and
       (B) by striking ``section 3 or 4'' and inserting ``section 
     1'';
       (4) in subsection (c)--
       (A) by striking ``(c) Either'' and inserting the following:
       ``(c) Further Original, Ancillary, or Supplementary Acts To 
     Ensure Quiet Enjoyment.--
       ``(1) In general.--Either''; and
       (B) in the second sentence, by striking ``Such actions'' 
     and inserting the following:
       ``(2) Action through chairman.--An action under paragraph 
     (1)'';
       (5) in subsection (d)--
       (A) by striking ``(d) Except'' and inserting the following:
       ``(d) United States as Party; Judgments Against the United 
     States--
       ``(1) In general.--Except''; and
       (B) in the second sentence, by striking ``Any judgment or 
     judgments'' and inserting the following:
       ``(2) Effect of judgments.--Any judgment''; and
       (6) in subsection (e), by striking ``(e) All'' and 
     inserting the following:
       ``(e) Remedies.--All''.

     SEC. 115. JOINT USE.

       Section 19 of the Act of December 22, 1974 (25 U.S.C. 640d-
     18) is amended--
       (1) by striking ``Sec. 19. (a) Notwithstanding'' and 
     inserting the following:

     ``SEC. 15. JOINT USE.

       ``(a) Reduction of Livestock.--
       ``(1) In general.--Notwithstanding'';
       (2) in subsection (a)(1) (as designated by paragraph (1))--
       (A) by striking ``section 3 or 4'' and inserting ``section 
     1''; and
       (B) in the second sentence, by striking ``The Secretary is 
     directed to'' and inserting the following:
       ``(2) Conservation practices and methods.--The Secretary 
     shall'';
       (3) in subsection (b)--
       (A) by striking ``(b) The'' and inserting the following:
       ``(b) Survey Location of Monuments and Fencing of 
     Boundaries.--The''; and
       (B) by striking ``sections 8 and 3 or 4'' each place it 
     appears and inserting ``sections 1 and 4''; and
       (4) in subsection (c)--
       (A) by striking ``(c)(1) Surveying'' and inserting the 
     following:
       ``(c) Surveying, Monumenting, and Fencing; Livestock 
     Reduction Program.--
       ``(1) Surveying, monumenting, and fencing.--Surveying'';
       (B) in paragraph (1)--
       (i) by striking ``section 4'' and inserting ``section 1''; 
     and
       (ii) by striking ``section 8'' and inserting ``section 4''; 
     and
       (C) in paragraph (2), by striking ``(2) The'' and inserting 
     the following:
       ``(2) Livestock reduction program.--The''.

     SEC. 116. RELIGIOUS CEREMONIES; PIPING OF WATER.

       Section 20 of the Act of December 22, 1974 (25 U.S.C. 640d-
     19) is amended by striking ``Sec. 20. The members'' and 
     inserting the following:

     ``SEC. 16. RELIGIOUS CEREMONIAL USES; PIPING OF WATER.

       The members''.

     SEC. 117. ACCESS TO RELIGIOUS SHRINES.

       Section 21 of the Act of December 22, 1974 (25 U.S.C. 640d-
     20) is amended by striking ``Sec. 21. Notwithstanding'' and 
     inserting the following:

     ``SEC. 17. ACCESS TO RELIGIOUS SHRINES.

       Notwithstanding''.

     SEC. 118. EXCLUSION OF PAYMENTS FROM CERTAIN FEDERAL 
                   DETERMINATIONS OF INCOME.

       Section 22 of the Act of December 22, 1974 (25 U.S.C. 640d-
     21) is amended--
       (1) by striking ``Sec. 22. The availability'' and inserting 
     the following:

     ``SEC. 18. EXCLUSION OF PAYMENTS FROM CERTAIN FEDERAL 
                   DETERMINATIONS OF INCOME.

       ``(a) In General.--The availability''; and
       (2) by striking ``None of the funds'' and inserting the 
     following:
       ``(b) Federal and State Income Taxes.--None of the funds''.

     SEC. 119. AUTHORIZATION OF EXCHANGE.

       Section 23 of the Act of December 22, 1974 (25 U.S.C. 649d-
     22) is amended--
       (1) by striking ``Sec. 23. The Navajo'' and inserting the 
     following:

     ``SEC. 19. AUTHORIZATION OF EXCHANGE.

       ``(a) In General.--The Navajo''; and
       (2) in the second sentence--
       (A) by striking ``In the event that the Tribes should'' and 
     inserting the following:
       ``(b) Negotiated Exchanges.--If the Tribes''; and
       (B) by striking ``sections 14 and 15'' and inserting 
     ``sections 10 and 11''.

     SEC. 120. SEVERABILITY.

       Section 24 of the Act of December 22, 1974 (25 U.S.C. 640d-
     23) is amended by striking ``Sec. 24. If'' and inserting the 
     following:

     ``SEC. 20. SEVERABILITY.

       ``If''.

     SEC. 121. AUTHORIZATION OF APPROPRIATIONS.

       Section 25 of the Act of December 22, 1974 (25 U.S.C. 640d-
     24) is--
       (1) moved so as to appear at the end of the Act; and
       (2) amended to read as follows:

     ``SEC. 27. AUTHORIZATION OF APPROPRIATIONS.

       ``(a) Relocation of households and members.--There is 
     authorized to be appropriated to carry out section 10(b) 
     $13,000,000.
       ``(b) Relocation of households and members.--There are 
     authorized to be appropriated to carry out section 11 such 
     sums as are necessary for each of fiscal years 2006 through 
     2008.
       ``(c) Return to carrying capacity and institution of 
     conservation practices.--There is authorized to be 
     appropriated to carry out section 15(a) $10,000,000.
       ``(d) Survey location of monuments and fencing of 
     boundaries.--There is authorized to be appropriated to carry 
     out section 15(b) $500,000.''.

     SEC. 122. FUNDING AND CONSTRUCTION OF HIGH SCHOOL AND MEDICAL 
                   CENTER.

       Section 27 of the Act of December 22, 1974 (25 U.S.C. 640d-
     25) is amended by striking ``Sec. 27.'' and all that follows 
     through ``(c) The Secretary'' and inserting the following:

     ``SEC. 21. FUNDING AND CONSTRUCTION OF HIGH SCHOOL AND 
                   MEDICAL CENTER.

       ``The Secretary''.

     SEC. 123. ENVIRONMENTAL IMPACT; WILDERNESS STUDY; 
                   CANCELLATION OF LEASES AND PERMITS.

       Section 28 of the Act of December 22, 1974 (25 U.S.C. 640d-
     26) is amended--
       (1) by striking ``Sec. 28. (a) No action'' and inserting 
     the following:

     ``SEC. 22. ENVIRONMENTAL IMPACT; WILDERNESS STUDY; 
                   CANCELLATION OF LEASES AND PERMITS.

       ``(a) In General.--No action'';
       (2) in subsection (b), by striking ``(b) Any'' and 
     inserting the following:
       ``(b) Effect of Wilderness Study.--Any''; and
       (3) by adding at the end the following:
       ``(c) Construction Requirements.--
       ``(1) In general.--Any construction activity under this Act 
     shall be carried out in accordance with sections 3 through 7 
     of the Act

[[Page S4955]]

     of June 27, 1960 (16 U.S.C. 469a-1 through 469c).
       ``(2) Compliance with other requirements.--If a 
     construction activity meets the requirements under paragraph 
     (1), the activity shall be considered to be in accordance 
     with any applicable requirement of--
       ``(A) Public Law 89-665 (80 Stat. 915); and
       ``(B) the Act of June 8, 1906 (34 Stat. 225, chapter 
     3060).''.

     SEC. 124. ATTORNEY FEES AND COURT COSTS.

       Section 29 of the Act of December 22, 1974 (25 U.S.C. 640d-
     27) is amended--
       (1) by striking ``Sec. 29. (a)'' and inserting the 
     following:

     ``SEC. 23. ATTORNEY FEES AND COURT COSTS.

       ``(a) In General.--'';
       (2) in subsection (a)--
       (A) by striking ``In any'' and inserting the following:
       ``(1) In general.--In any''; and
       (B) by striking ``For each'' and inserting the following:
       ``(2) Authorization of appropriations.--For each'';
       (3) in subsection (b)--
       (A) by striking ``(b) Upon'' and inserting the following:
       ``(b) Award by Court.--
       ``(1) In general.--On''; and
       (B) in the second sentence, by striking ``Any party'' and 
     inserting the following:
       ``(2) Reimbursement of united states.--Any party'';
       (4) in subsection (c), by striking ``(c) To'' and inserting 
     the following:
       ``(c) Excess Difference.--To''; and
       (5) in subsection (d)--
       (A) by striking ``(d) This'' and inserting the following:
       ``(d) Application of Section.--This''; and
       (B) by striking ``section 8 or 18(a) of this Act'' and 
     inserting ``section 4 or section 14(a)''.

     SEC. 125. LOBBYING.

       Section 31 of the Act of December 22, 1974 (25 U.S.C. 640d-
     29) is amended--
       (1) by striking ``Sec. 31. (a) Except'' and inserting the 
     following:

     ``SEC. 24. LOBBYING.

       ``(a) In General.--Except''; and
       (2) in subsection (b), by striking ``(b) Subsection'' and 
     inserting the following:
       ``(b) Applicability.--Subsection''.

     SEC. 126. NAVAJO REHABILITATION TRUST FUND.

       The first section designated as section 32 of the Act of 
     December 22, 1974 (25 U.S.C. 640d-30) is amended--
       (1) by striking ``Sec. 32. (a) There'' and inserting the 
     following:

     ``SEC. 25. NAVAJO REHABILITATION TRUST FUND.

       ``(a) Establishment.--There'';
       (2) in subsection (b), by striking ``(b) All'' and 
     inserting the following:
       ``(b) Deposit of Income Into Fund.--All'';
       (3) in subsection (c), by striking ``(c) The'' and 
     inserting the following:
       ``(c) Investment of Funds.--The'';
       (4) in subsection (d)--
       (A) by striking ``(d) Funds'' and inserting the following:
       ``(d) Availability of Funds.--Funds'';
       (B) in paragraph (1), by striking ``proceedings,'' and 
     inserting ``proceedings;''; and
       (C) in paragraph (2), by striking ``Act, or'' and inserting 
     ``Act; or'';
       (5) in subsection (e)--
       (A) by striking ``(e) By December 1'' and inserting the 
     following:
       ``(e) Expenditure of Funds.--
       ``(1) In general.--Not later than December 1''; and
       (B) in the second sentence, by striking ``Such framework is 
     to be'' and inserting the following:
       ``(2) Requirement.--The framework under paragraph (1) shall 
     be'';
       (6) in subsection (f)--
       (A) by striking ``(f) The'' and inserting the following:
       ``(f) Termination.--
       ``(1) In general.--The''; and
       (B) in the second sentence, by striking ``All funds'' and 
     inserting the following:
       ``(2) Transfer of remaining funds.--All funds''; and
       (7) in subsection (g)--
       (A) by striking ``(g) There is hereby'' and inserting the 
     following:
       ``(g) Authorization of Appropriations.--
       ``(1) In general.--There is'';
       (B) in the first sentence, by striking ``1990, 1991, 1992, 
     1993, 1994, and 1995'' and inserting ``2006 through 2008''; 
     and
       (C) in the second sentence, by striking ``The income'' and 
     inserting the following:
       ``(2) Income from land.--The income''.

     SEC. 127. AVAILABILITY OF FUNDS FOR RELOCATION ASSISTANCE.

       The second section designated as section 32 of the Act of 
     December 22, 1974 (25 U.S.C. 640-31) is amended by striking 
     ``Sec. 32. Nothing'' and inserting the following:

     ``SEC. 26. AVAILABILITY OF FUNDS FOR RELOCATION 
                   ASSISTANCE.''.

       ``Nothing''.

 TITLE II--PERSONNEL OF THE OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION

     SEC. 201. RETENTION PREFERENCE.

       The second sentence of section 3501(b) of title 5, United 
     States Code, is amended--
       (1) by striking ``or'' after ``Senate'' and inserting a 
     comma;
       (2) by striking ``or'' after ``Service'' and inserting a 
     comma; and
       (3) by inserting ``, or to an employee of the Office of 
     Navajo and Hopi Indian Relocation'' before the period.

     SEC. 202. SEPARATION PAY.

       (a) In General.--Chapter 55 of title 5, United States Code, 
     is amended by adding at the end the following:

     ``Sec. 5598 Separation pay for certain employees of the 
       Office of Navajo and Hopi Indian Relocation

       ``(a) In General.--Except as provided in subsections (b) 
     and (c), the Commissioner of the Office of Navajo and Hopi 
     Indian Relocation shall establish a program to offer 
     separation pay to employees of the Office of Navajo and Hopi 
     Indian Relocation (referred to in this section as the 
     `Office') in the same manner as the Secretary of Defense 
     offers separation pay to employees of a defense agency under 
     section 5597.
       ``(b) Separation Pay.--
       ``(1) In general.--Under the program established under 
     subsection (a), the Commissioner of the Office may offer 
     separation pay only to employees within an occupational group 
     or at a pay level that minimizes the disruption of ongoing 
     Office programs at the time that the separation pay is 
     offered.
       ``(2) Requirement.--Any separation pay offered under this 
     subsection--
       ``(A) shall be paid in a lump sum;
       ``(B) shall be in an amount equal to $25,000, if paid on or 
     before December 31, 2007;
       ``(C) shall be in an amount equal to $20,000, if paid after 
     December 31, 2007, and before January 1, 2009;
       ``(D) shall be in an amount equal to $15,000, if paid after 
     December 31, 2008, and before January 1, 2010;
       ``(E) shall not--
       ``(i) be a basis for payment;
       ``(ii) be considered to be income for the purposes of 
     computing any other type of benefit provided by the Federal 
     Government; and
       ``(F) if an individual is otherwise entitled to receive any 
     severance pay under section 5595 on the basis of any other 
     separation, shall not be payable in addition to the amount of 
     the severance pay to which that individual is entitled under 
     section 5595.
       ``(c) Prohibition.--No amount shall be payable under this 
     section to any employee of the Office for any separation 
     occurring after December 31, 2009.''.
       (b) Conforming Amendment.--The chapter analysis for chapter 
     55 of title 5 is amended by adding at the end the following:

``5598. Separation pay for certain employees of the Office of Navajo 
              and Hopi Indian Relocation.''.

     SEC. 203. FEDERAL RETIREMENT.

       (a) Civil Service Retirement System.--
       (1) Immediate retirement.--Section 8336(j)(1)(B) of title 
     5, United States Code, is amended by inserting ``or was 
     employed by the Office of Navajo and Hopi Indian Relocation 
     during the period beginning on January 1, 1985, and ending on 
     the date of separation of that employee'' before the final 
     comma.
       (2) Computation of annuity.--Section 8339(d) of title 5, 
     United States Code, is amended by adding at the end the 
     following:
       ``(8) The annuity of an employee of the Office of Navajo 
     and Hopi Indian Relocation described in section 8336(j)(1)(B) 
     shall be determined under subsection (a), except that with 
     respect to service of that employee on or after January 1, 
     1985, the annuity of that employee shall be in an amount 
     equal to the sum of--
       ``(A) the product obtained by multiplying--
       ``(i) 2\1/2\ percent of the average pay of the employee; 
     and
       ``(ii) the quantity of service of the employee on or after 
     January 1, 1985, that does not exceed 10 years; and
       ``(B) the product obtained by multiplying--
       ``(i) 2 percent of the average pay of the employee; and
       ``(ii) the quantity of the service of the employee on or 
     after January 1, 1985, that exceeds 10 years.''.
       (b) Federal Employees Retirement System.--
       (1) Immediate retirement.--Section 8412 of title 5, United 
     States Code, is amended by adding at the end the following:
       ``(i) An employee of the Office of Navajo and Hopi Indian 
     Relocation is entitled to an annuity if that employee--
       ``(1) has been continuously employed in the Office of 
     Navajo and Hopi Indian Relocation during the period beginning 
     on January 1, 1985, and ending on the date of separation of 
     that individual; and
       ``(2)(A) has completed 25 years of service at any age; or
       ``(B) has attained the age of 50 years and has completed 20 
     years of service.''.
       (2) Computation of basic annuity.--Section 8415 of title 5, 
     United States Code, is amended--
       (1) by redesignating subsection (l) as subsection (m);
       (2) by redesignating the second subsection designated as 
     subsection (k) as subsection (l); and
       (3) by adding at the end the following:
       ``(n) The annuity of an employee retiring under section 
     8412(i) shall be determined in accordance with subsection 
     (d), except that with respect to service during the period 
     beginning on January 1, 1985, the annuity of the employee 
     shall be an amount equal to the sum of--
       ``(1) the product obtained by multiplying--
       ``(A) 2 percent of the average pay of the employee; and
       ``(B) the quantity of the total service of the employee 
     that does not exceed 10 years; and
       ``(2) the product obtained by multiplying--
       ``(A) 1\1/2\ percent of the average pay of the employee; 
     and

[[Page S4956]]

       ``(B) the quantity of the total service of the employee 
     that exceeds 10 years.''.

        TITLE III--TRANSFER OF FUNCTIONS AND SAVINGS PROVISIONS

     SEC. 301. DEFINITIONS.

       In this title:
       (1) Federal agency.--The term ``Federal agency'' has the 
     meaning given the term ``agency'' in section 551(1) of title 
     5, United States Code.
       (2) Function.--The term ``function'' means any duty, 
     obligation, power, authority, responsibility, right, 
     privilege, activity, or program.
       (3) Office.--The term ``Office'' means the Office of Navajo 
     and Hopi Relocation (including any component of that office).

     SEC. 302. TRANSFER OF FUNCTIONS.

       Effective on the date of enactment of this Act, there is 
     transferred to the Secretary of the Interior any function of 
     the Office that has not been carried out by the Office on the 
     date of enactment of this Act, as determined by the Secretary 
     of the Interior in accordance with the Act of December 22, 
     1974 (25 U.S.C. 640 et seq.) (as amended by title I).

     SEC. 303. TRANSFER AND ALLOCATIONS OF APPROPRIATIONS.

       (a) In General.--Except as otherwise provided in this Act 
     and the amendments made by this Act, any asset, liability, 
     contract, property, record, or unexpended balance of 
     appropriations, authorizations, allocations, and other funds 
     made available to carry out the functions transferred by this 
     title shall be transferred to the Secretary of the Interior, 
     subject to section 1531 of title 31, United States Code.
       (b) Use of Funds.--Any unexpended funds transferred under 
     subsection (a) shall be used only for the purposes for which 
     the funds were originally authorized and appropriated.

     SEC. 304. EFFECT OF TITLE.

       (a) Continuing Effect of Legal Documents.--Any legal 
     document relating to a function transferred by this title 
     that is in effect on the date of enactment of this Act shall 
     continue in effect in accordance with the terms of the 
     document until the document is modified or terminated by--
       (1) the President;
       (2) the Secretary of the Interior;
       (3) a court of competent jurisdiction; or
       (4) operation of Federal or State law.
       (b) Proceedings Not Affected.--This title shall not affect 
     any proceeding (including a notice of proposed rulemaking, an 
     administrative proceeding, and an application for a license, 
     permit, certificate, or financial assistance) relating to a 
     function transferred under this title that is pending before 
     the Office of Navajo and Hopi Relocation on the date of 
     enactment of this Act.
                                 ______
                                 
      By Mr. BINGAMAN (for himself, Ms. Snowe, Mr. Rockefeller, Mrs. 
        Hutchison, Mr. Reid, and Mr. Jeffords):
  S. 1007. A bill to prevent a severe reduction in the Federal medical 
assistance percentage determined for a State for fiscal year 2006; to 
the Committee on Finance.
  Mr. BINGAMAN. Mr. President, today I am introducing legislation with 
Senators Snowe, Rockefeller, Hutchison, Reid, and Jeffords that would 
increase Medicaid Federal matching payments to 28 States by addressing 
a problem with the Medicaid funding formula that is expected to result 
in a majority of States in the country having their Federal matching 
rate drop this coming fiscal year.
  Our legislation, the ``Medicaid Formula Fairness Act of 2005,'' would 
protect these 28 States from decreases in the amount of Federal funding 
they can expect to receive in fiscal year 2006. For the vulnerable low-
income children, pregnant women, disabled, and senior citizens that the 
Medicaid programs in those 28 States serve. This legislation may be the 
only thing preventing them from losing their health benefits and 
joining the ranks of our Nation's uninsured, which is already at 45 
million people.
  In New Mexico, more than one-in-five or over 400,000 New Mexicans are 
uninsured and the State is facing a $78 million reduction in the 
federal Medicaid matching rate for fiscal year 2006. This is not the 
result of a dramatic upswing in the economy in New Mexico. The most 
recent poverty data from the U.S. Census Bureau actually indicates an 
upswing in the percentage of New Mexicans in poverty at 18 percent--the 
second highest poverty rate in the country.
  Thus, at the very time when there are more people in need of medical 
care through the Medicaid program, the Federal Government is apparently 
reducing its assistance through Medicaid. So how is this possible?
  The first problem is with the Medicaid matching formula itself. It is 
based on per capita income, which was established as a proxy for both 
need and State capacity many years ago. We now have much better data on 
what should be the factors in the Medicaid formula, including poverty 
and total taxable resource measures, but the old proxy of per capita 
income remains.
  Despite numerous reports from the General Accounting Office, the HHS 
inspector general, and outside organizations calling for such an update 
to the Federal Medicaid formula, nothing has happened over the years. 
Rather than fighting that battle again, our legislation acknowledges 
that we are stuck with per capita income as the formula factor. 
Instead, we take issue with how that factor is dropping Federal 
matching rates across the Nation while the national poverty rate 
continues to rise. Again, how is this possible?
  In the fall of 2004, the Centers for Medicare and Medicaid Services, 
CMS, published the Federal Medical Assistance Percentage, or FMAP, for 
fiscal year 2006 based on per capital income, PCI, data from 2001, 
2002, and 2003. According to the Federal Funds Information for States, 
FFIS, Issue Brief in September 2004, changes in the FMAP will 
cause States to lose a net $527 million in Federal matching funds in 
the Medicaid Program with decreases of $867 million to 29 States 
partially offset by increases for 9 States.

  CMS acknowledges that 29 States will lose Federal funding, nine 
States will gain, and the balance of the States will not be impacted by 
the Medicaid changes because the latter group of 12 States are already 
at the statutory minimum FMAP of 50 percent.
  Federal law dictates that the FMAP is determined based on the ``three 
most recent calendar years for which satisfactory data are available 
from the Department of Commerce.'' Thus, for fiscal year 2006, the PCI 
data used is from the years 2001, 2002, and 2003. The Federal intent of 
a 3-year rolling average is to limit the fluctuations that States might 
experience since only one-third of the formula is changed on a yearly 
basis. In other words, Congress felt it important enough to limit the 
fluctuations in the matching rate through the 3-year rolling average of 
PCI data that the result is the use of data from 2001 for the 
calculation of the fiscal year 2006 FMAP.
  However, as analysis by the Oklahoma Health Care Authority indicates, 
in the case of the calculation, of the fiscal year 2006 FMAP, the U.S. 
Department of Commerce's Bureau of Economic Analysis, BEA, performed a 
comprehensive revision of its calculation of PCI in 2003, as it does 
every 4 to 5 years, and provided revised data for previous years as 
well. As a result, CMS changed the 2001 and 2002 PCI data for States in 
the calculation, Consequently, all 3 years of the PCI data were being 
changed rather than just one-third.
  The result is rather dramatic fluctuations--mostly negative--to State 
FMAP calculations, As the FFIS Issue Brief indicated, ``Fifteen States 
are projected to have changes of greater than one percentage point in 
fiscal year 2006, compared to only three for FY 2005.'' Not since 1998 
have the fluctuations been this dramatic.
  According to the Congressional Research Service (CRS), the average 
change in the FMAP between fiscal year 2001 and fiscal year 2002 was 
-0.26 percentage points, for fiscal year 2003 it was +0.32, for fiscal 
year 2004 it was +0.12, and for fiscal year 2005 it was -0.09. Thus, 
over this 4-year period, the average change in the national FMAP was 
less than 0.2 percentage points. However, due in part to the 
rebenchmarking of data by BEA, the fiscal year 2006 change in the FMAP 
will be -0.55 percentage points. Compared to average change over the 
preceeding 4 years, the fiscal year 2006 FMAP change will be almost 
three times as dramatic.
  As a result, 29 States will absorb a decline in the FMAP for fiscal 
year 2006. The Oklahoma Health Care Authority estimates that this will 
cost those States $860 million. The largest projected percentage point 
decreases are for Alaska, -7.42, Wyoming, -3.67, New Mexico, -3.15, 
Oklahoma, -2.27, Maine, -1.99, West Virginia, -1.66, North Dakota, 
-1.64, Vermont, -1.62, Utah, -1.38, Montana, -1.36, Alabama, -1.32, 
Louisiana, -1.25, Nevada, -1.14, and Mississippi, -1.08.
  The largest dollar declines would be experienced by the states of New 
Mexico, -$79 million, Louisiana, -$72 million, Alaska, -$69 million, 
Tennessee, -$68 million, Oklahoma, -$66 million,

[[Page S4957]]

Alabama, -$55 million, and Maine, -$47 million.
  FFIS adds, ``While the changes in FY 2006 are significant, for many 
states they only add to previous reductions. Thirteen states (Alaska, 
Kentucky, Louisiana, Maine, Montana, New Mexico, North Dakota, 
Oklahoma, Rhode Island, Vermont, West Virginia, Wisconsin, and Wyoming) 
will experience three consecutive reductions--from the fiscal relief 
FMAP to the base FMAP in FY 2004 to a second reduction in FY 2005 and a 
third in FY 2006. The cumulative 5-year reduction for a number of 
States is large, and for many unprecedented--Wyoming (-10.37), Alaska 
(-9.97), North Dakota (-4.14), Vermont (-3.91), Oklahoma (-3.33), Maine 
(-3.22), and South Dakota (-3.24).''
  The loss in funds to these 29 States is already resulting in planned 
cuts in benefits and services to Medicaid eligible recipients, such as 
low-income children, pregnant women, the elderly and disabled, and 
decreased reimbursement to Medicaid providers, including physicians, 
hospitals, nursing homes, community health centers, etc.
  In an effort to minimize the dramatic fluctuations in the Fiscal Year 
2006 FMAP, this legislation would limit the loss of States in the FMAP 
to 0.5 percentage points, which restores $442 million of the lost 
Medicaid dollars to 18 States. The bill would also give 10 additional 
States a higher FMAP if changes to PCI for 2001 and 2002 were not 
retroactively applied by CMS. This translates to approximately $229 
million for a total of $671 million. This is still far less than the 
$860 million lost to the 29 States by FMAP reductions.
  Therefore, this legislation I am introducing with Senator Snowe and 
others does not hold States entirely harmless. However, it does limit 
the losses in Federal Medicaid matching funds that States are expected 
to absorb due to problems with the use of per capita income as a factor 
in the Medicaid formula but also in how it is used. Our legislation 
mitigates those problems, and does so with the expressed intent of 
preventing millions of additional Americans from joining the ranks of 
the uninsured as many of our States will be forced to undertake cuts to 
the Medicaid program to make up for lost Federal funding.
  Specifically, the bill allows States to get the better of: 1. the 
FMAP as calculated by CMS; 2. a recalculated FMAP without retroactively 
changing the 2001 and 2002 per capita income data; or, 3. a hold 
harmless limiting the reduction in the FMAP to 0.5 percentage points.
  In New Mexico, for example, the ``Medicaid Formula Fairness Act of 
2005'' would restore $66 million of the $78 million that New Mexico is 
scheduled to lose due to the drop in the Federal Medicaid matching 
rate. The other 27 States that would benefit from the legislation and 
the estimated amount they would receive are as follows: Texas--$113 
million, New Mexico--$66 million, Alaska--$64 million, Oklahoma--$52 
million, Louisiana--$43 million, Maine--$35 million, Alabama--$34 
million, West Virginia--$27 million, Tennessee--$27 million, Florida--
$25 million, Mississippi--$22 million, Arizona--$22 million, Nevada--
$17 million, Arkansas--$14 million, Utah--$14 million, North Carolina--
$14 million, Wyoming--$13 million, Vermont--$10 million, Wisconsin--$9 
million, Rhode Island--$8 million, Georgia--$8 million, Oregon--$6 
million, North Dakota--$6 million, Montana--$6 million, South 
Carolina--$6 million, Idaho--$5 million, South Dakota--$3 million, and 
Kansas--$2 million.
  I would like to thank the Oklahoma Health Care Authority, including 
Mike Fogarty and Stephen Weiss, for their outstanding work in analyzing 
the problem with the Fiscal Year 2006 FMAP and for their technical 
assistance and counsel toward the introduction of this legislation. I 
would also like to thank Senators Snowe, Rockefeller, Hutchison, Reid, 
and Jeffords for providing bipartisan support as original cosponsors of 
this important legislation.
  I ask unanimous consent that the text of the bill and a letter be 
printed in the Record.
  There be no objection, the material was ordered to be printed in the 
Record.

                                S. 1007

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Medicaid Formula Fairness 
     Act of 2005''.

     SEC. 2. LIMITATION ON SEVERE REDUCTION IN THE MEDICAID FMAP 
                   FOR FISCAL YEAR 2006.

       (a) Limitation on Reduction.--In no case shall the FMAP for 
     a State for fiscal year 2006 be less than the greater of the 
     following:
       (1) Half percentage point decrease.--The FMAP determined 
     for the State for fiscal year 2005, decreased by 0.5 
     percentage points.
       (2) Computation without retroactive application of 
     rebenchmarked per capita income.--The FMAP that would have 
     been determined for the State for fiscal year 2006 if the per 
     capita incomes for 2001 and 2002 that was used to determine 
     the FMAP for the State for fiscal year 2005 were used.
       (b) Scope of Application.--The FMAP applicable to a State 
     for fiscal year 2006 after the application of subsection (a) 
     shall apply only for purposes of titles XIX and XXI of the 
     Social Security Act (including for purposes of making 
     disproportionate share hospital payments described in section 
     1923 of such Act (42 U.S.C. 1396r-4) and payments under such 
     titles that are based on the enhanced FMAP described in 
     section 2105(b) of such Act (42 U.S.C. 1397ee(b))) and shall 
     not apply with respect to payments under title IV of such Act 
     (42 U.S.C. 601 et seq.).
       (c) Definitions.--In this section:
       (1) FMAP.--The term ``FMAP'' means the Federal medical 
     assistance percentage, as defined in section 1905(b) of the 
     Social Security Act (42 U.S.C. 1396d(b)).
       (2) State.--The term ``State'' has the meaning given such 
     term for purposes of title XIX of the Social Security Act (42 
     U.S.C. 1396 et seq.).

     SEC. 3. REPEAL.

       Effective as of October 1, 2006, section 2 is repealed and 
     shall not apply to any fiscal year after fiscal year 2006.


                                American Hospital Association,

                                   Washington, DC, March 28, 2005.
     Hon. Jeff Bingaman,
     U.S. Senate,
     Washington, DC.
       Dear Senator Bingaman: On behalf of our 4,700 hospital, 
     health care system, and other health care provider members, 
     and our 31,000 individual members, the American Hospital 
     Association (AHA) is writing to express our support for your 
     legislation to limit FY 2006 Medicaid federal medical 
     assistance percentage (FMAP) reductions.
       Recently the Bureau of Economic Affairs in the Department 
     of Commerce re-benchmarked per capita income for states, and 
     the Centers for Medicare & Medicaid Services (CMS) 
     retroactively applied the changes. The Medicaid FMAP uses a 
     three-year rolling average to smooth out dramatic changes in 
     the states' matching rates from year-to-year. By 
     retroactively applying the new benchmark, however, CMS 
     undermined the rationale of the three-year rolling average; 
     therefore 22 states will see their FMAP drop by more than 0.5 
     percentage points in FY 2006--a reduction of an estimated 
     $752 million in FY 2006. About $550 million of this is due to 
     the retroactive recalculation.
       The prospect of more Medicaid hospital payment reductions 
     due to decreased federal Medicaid funding is a serious threat 
     to the viability of hospitals and the patients they serve. We 
     realize that it is critical that states provide their share 
     of the state-federal Medicaid funding match in order for 
     vulnerable citizens to obtain and retain health care coverage 
     and health services. Your legislation would help states by 
     limiting the FMAP drop to 0.5 percent, restoring $468 million 
     of the funds that are lost due to the recalculation of per 
     capita income.
       We applaud your leadership on this issue and support 
     enactment of this legislation.
           Sincerely,
                                                     Rick Pollack,
                                         Executive Vice President.

  Ms. SNOWE. Mr. President, I am pleased to join Senator Bingaman 
today, along with Senators Rockefeller, Hutchison, Reid, and Jeffords, 
in introducing the Medicaid Formula Fairness Act of 2005. This 
legislation will provide a temporary increase in Medicaid Federal 
matching payments to 28 States and thereby avoid a significant loss 
funds which would otherwise occur due to a precipitous and unpredicted 
drop in the Federal matching rate for these States next year.
  Medicaid provides essential medical care to low-income children, 
pregnant women, parents of dependent children, senior citizens, and 
people with disabilities and functions as a critical safety net for our 
most vulnerable populations. Enrollment in the Medicaid program has 
grown by nearly one-third since the beginning of 2001, as the numbers 
of those in poverty and individuals without private health insurance 
continues to increase. In Maine, where we have an older and less 
wealthy population, more than 300,000 people were enrolled in Medicaid 
last year. One in five individuals in the State now receives health 
care services through MaineCare, the State's Medicaid program.

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  States have experienced severe fiscal stress during the last few 
years, with sharp declines in revenues and budget shortfalls. This 
economic downturn, from which many States are only now emerging, has 
continued to leave many families jobless and without health insurance, 
forcing to turn to Medicaid. This has put an enormous strain on the 
States such as Maine which are already strapped with budget shortfalls. 
Many States reduced Medicaid benefits last year and even more 
restricted Medicaid eligibility in an effort to satisfy their budgetary 
obligations.
  The formula for calculating the Federal matching rate, known as the 
Federal Medical Assistance Percentage, FMAP, which determines the 
Federal Government's share of Medicaid expenditures, has contributed to 
the Medicaid problems that States are facing. The FMAP formula is 
designed so that the Federal Government pays a larger portion of 
Medicaid costs in States with a per capita income lower than the 
national average. Since Maine is a relatively poor State with a 
disproportionately large low-income elderly population, it has had a 
favorable Federal-State match in recent years, 66 percent in 2004. This 
translated to $1.4 billion in Federal dollars last year--two-thirds of 
MaineCare's $2 billion in Medicaid spending.
  The size of Maine's Medicaid population means that any change in the 
FMAP has a disproportionately significant impact on Maine's budget. 
This year, Maine's Federal matching rate decreased from 66.01 percent 
to 64.89 percent, a drop of more than one percent. The change in FMAP 
for FY2006 is even greater and will cause 28 States, including Maine, 
to lose a significant amount of Federal matching funds next year. 
Maine's Federal matching rate will drop nearly two points, from 64.89 
percent to 62.9 percent next year, which will result in Maine losing 
$46.7 million in Federal matching funds.
  Under existing Federal law, the FMAP is determined based on the three 
most recent calendar years for which data is available from the 
Department of Commerce. This 3 year ``look back'' captures a period of 
time that is not necessarily reflective of a State's current financial 
situation. The FMAP for FY 2003, for example, was calculated in 2001 
for the fiscal year beginning October 2002. The FY 2003 FMAP was 
determined on the basis, of State per capita income over the 3 year 
period of 1998 through 2000, when State economies were growing 
significantly. Yet in 2003, when this matching rate was in effect, a 
serious economic downturn was affecting many State budgets, and that 
downturn has contributed greatly to the growth of Medicaid for several 
years now.
  We recognized this situation in the last Congress and provided for 
State fiscal relief by providing a temporary increase in the Federal 
Medicaid matching rate, which provided $10 billion in fiscal relief to 
States during fiscal 2003 and 2004, when we passed the Jobs and Growth 
Tax Relief Reconciliation Act of 2003 but that temporary Federal fiscal 
relief has now ended.
  This Congress has reached a budget agreement which, among its terms, 
calls for reductions of $10 billion in Medicaid spending over the next 
5 years. At this time, therefore, it is especially crucial that we 
continue to provide sufficient Federal matching funds for Medicaid, 
which has worked so well over the last 40 years. Our legislation is 
intended to be just a short term fix, for fiscal year 2006. It is my 
hope that we will see the creation of a Medicaid Commission to 
undertake a comprehensive review of the Medicaid program and make 
recommendations on how to make Federal matching payments more equitable 
with respect to the States and the populations they serve, as well as 
how to make them more responsive to changes in States' economic 
conditions.
  However, today, states such as Maine are facing dramatic and 
unpredictable fluctuations to their State FMAP formulas. This 
legislation would limit the percentage decrease to a half percentage 
point for fiscal year 2006 and help mitigate the drastic effects that a 
severe loss Federal funding would have on our Medicaid population next 
year.
  I therefore urge my colleagues to join us supporting this legislation 
to help sustain funding for Medicaid in fiscal year 2006 to help ensure 
that this critical health care safety net remains intact next year for 
those who need it most.

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