[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.
[[Page S4958]]
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.
____________________