Congressional Record, Volume 151 Issue 152 (Wednesday, November 16, 2005)

[Congressional Record Volume 151, Number 152 (Wednesday, November 16, 2005)]
[Senate]
[Pages S12950-S12959]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. GRASSLEY (for himself and Mr. Sessions):
S. 2016. A bill to amend chapter 3 of title 28, United States Code,
to provide for 11 circuit judges on the United States Court of Appeals
for the District of Columbia Circuit; to the Committee on the
Judiciary.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the text of
this bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 2016

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

SECTION 1. JUDGES ON THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT.

(a) In General.--The table under section 44(a) of title 28,
United States Code, is amended by striking the item relating
to the District of Columbia and inserting the following:
``District of Columbia........................................11''.....

(b) Existing Vacancy Not Filled.--In order to comply with
the amendment made under subsection (a), 1 of the vacancies
of circuit judges on the United States Court of Appeals for
the District of Columbia Circuit which existed on the date
preceding the date of the enactment of this Act, shall not be
filled.
______

By Mr. FEINGOLD (for himself and Ms. Snowe):
S. 2017. A bill to amend the provisions of titles 5 and 28, United
States Code, relating to equal access to justice, award of reasonable
costs and fees, and administrative settlement offers, and for other
purposes; to the Committee on the Judiciary.
Mr. FEINGOLD. Mr. President, today I plan to introduce the Equal
Access to Justice Reform Act of 2005.
This legislation contains adjustments to the Equal Access to Justice

[[Page S12951]]

Act (EAJA) that will streamline and improve the process of awarding
attorneys' fees to private parties who prevail in litigation against
the Federal Government. This is the fifth Congress in which I have
introduced EAJA reform. I believe this reform is an important step
toward reducing the burden of defending government litigation for many
individuals and small businesses.
I am very pleased to be joined in introducing this legislation this
year by my friend from Maine, Senator Olympia Snowe, who chairs the
Small Business Committee. We hope that by working together on a
bipartisan basis, we will increase the chances that this important
project will become law.
The legislation we are proposing today deals directly with a problem
that affects small businesses and individual Americans across this
country who face legal battles with the Federal Government. Even if
they win in court, they may lose financially because they incur the
great expense of paying their attorneys.
It is important to understand what the Equal Access to Justice Act
is, and why it exists. The premise of this statute is very simple. EAJA
seeks to level the playing field for individuals and small businesses
that face the United States government in litigation. It establishes
guidelines for the award of attorneys' fees when the individual or
small business prevails in a case brought by the government. Quite
simply, EAJA acknowledges that the resources available to the Federal
Government in a legal dispute far outweigh those available to most
Americans. This disparity is lessened by requiring the government, in
certain instances, to pay the attorneys' fees of successful individual
and small-business parties. By giving successful parties the right to
seek attorneys' fees from the United States, EAJA seeks to prevent
individuals and small business owners from having to risk their family
savings or their companies' financial well-being to seek justice in
court.
My interest in this issue predates my election to the Senate. It
arises from my experience as both a private attorney and a Member of
the State Senate in my home State of Wisconsin. While in private
practice, I became aware of how the ability to recoup attorneys' fees
is a significant factor, and often one of the first considered, when
parties decide whether to defend a case. Upon entering the Wisconsin
State Senate, I authored legislation modeled on the Federal law, which
had been championed by one of my predecessors in this body from
Wisconsin, Senator Gaylord Nelson. Today, Wisconsin statutes contain
provisions similar to the federal EAJA statute.
It seemed to me then, as it does now, that we should do all that we
can to help ease the financial burdens on people who need to have their
claims reviewed and decided by impartial decision makers. The bill
Senator Snowe and I are introducing today does a number of things to
make EAJA more effective for individuals and small business owners
across this country.
First, this legislation eliminates the restrictive provision in
current law that prevents successful parties from collecting attorneys'
fees unless they can show the government's position was ``not
substantially justified.'' I believe that this high threshold for
obtaining attorneys' fees is unfair. If an individual or small business
battles the Federal Government in an adversarial proceeding and
prevails, the government should pay the fees incurred. Imagine a small
business that spends time and money fighting the government and wins,
only to find out that it must undertake the additional step of
litigating the justification of government's litigation position just
to recover attorneys' fees. For the government, with its vast
resources, this second litigation over fees poses little difficulty,
but for the small business or individual, it may simply not be
financially feasible.
This additional step presents more than a financial burden on the
individual or small business litigant. A 1992 study also reveals that
it is unnecessary and a waste of government resources. University of
Virginia Professor Harold Krent reviewed EAJA cases in 1989 and 1990
and released a study on behalf of the Administrative Conference of the
United States. Professor Krent found that only a small percentage of
EAJA awards were denied because of the substantial justification
defense. While it is impossible to determine the exact cost of
litigating the issue of substantial justification, Professor Krent
found that the money saved by the government was not enough to justify
the cost of the additional litigation. In short, eliminating this
often-burdensome second step is a cost-effective step that will
streamline recovery under EAJA and may very well save the government
money in the long run.
A second improvement this bill makes to EAJA are modifications to the
definition of a small business. Small businesses are currently defined
for purposes of EAJA as businesses with a net worth of less than $7
million. We update that number to $10 million and also provide for an
inflation adjustment every five years based on the Producer Price
Index. This provision will ensure that EAJA continues to serve the
small businesses it is intended to protect.
Another part of this legislation that will streamline and improve
EAJA is a provision designed to encourage settlement and avoid costly
and protracted litigation. Under the bill, the government can make an
offer of settlement after an application for fees and other expenses
has been filed. If the government's offer is rejected and the
prevailing party seeking recovery ultimately wins a smaller award, that
party is not entitled to the attorneys' fees and costs incurred after
the date of the government's offer. Again, this will encourage
settlement and speed the claims process. It will reduce the time and
expense of the litigation.
This bill also requires the government agency that brought the case
against the small business or individual to pay attorneys' fees from
their own budgets. This provision ensures federal agencies will
consider the financial impact of the actions they choose to bring
against individuals and small businesses. OSHA, NLRB, EEOC, and the
Mine Safety and Health Administration are exempt from this provision
because they play a unique role in acting on behalf of workers to
enforce the laws.
Finally, this bill will modify the definition of prevailing party to
ensure that if claims filed against the government are the catalyst for
a change in the position by the government that results in the
individual or small business achieving a significant part of the relief
sought, the individual or small business will be considered the
prevailing party even if the case settles rather than going to a
judgment. This reverses, in cases where fees are available under EAJA,
the 2001 decision of the Supreme Court in Buckhannon Board and Care
Home, Inc. v. West Virginia Department of Health and Human Resources.
We all know that the American small business owner faces many
challenges. Government regulation can be a formidable obstacle to
conducting business, and litigation can be costly. The Equal Access to
Justice Act was conceived and implemented as a check on the formidable
power of the federal government. It has already helped many individual
Americans and small businesses. The legislation we are offering today
will make EAJA more effective and more fair. I want to thank Senator
Snowe for agreeing to work with me on this important bill. I hope our
colleagues can support it.
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. 2017

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 ``Equal Access to Justice
Reform Act of 2005''.

SEC. 2. FINDINGS AND STATEMENT OF PURPOSE.

(a) Findings.--The Congress finds that--
(1) the Equal Access to Justice Act (Public Law 96-481; 94
Stat. 2325 et seq.) (in this section referred to as ``EAJA'')
was intended to make the justice system more accessible to
individuals of modest means, small businesses, and nonprofit
organizations (in this section collectively referred to as
``small parties'') through limited recovery of their
attorneys' fees when they prevail in disputes with the
Federal Government; and
(2) although EAJA has succeeded, at modest cost, in
improving access to the justice system for small parties,
EAJA retains formidable barriers to attorneys' fees recovery

[[Page S12952]]

(even for small parties that completely prevail against the
Government), as well as inefficient and costly mechanisms for
determining the fees recovery.
(b) Purpose.--It is, therefore, the purpose of this Act to
remove existing barriers and inefficiencies in EAJA in order
to--
(1) equalize the level of accountability to Federal law
among governments in the United States;
(2) discourage marginal Federal enforcement actions
directed at small parties;
(3) reduce the practice of paying EAJA liabilities from the
General Treasury, to ensure that Federal agencies properly
consider the financial consequences of their actions and
subsequent impact on the Federal budget;
(4) refine and improve Federal policies through
adjudication;
(5) promote a fair and cost-effective process for prompt
settlement and payment of attorneys' fees claims; and
(6) provide a fairer opportunity for full participation by
small businesses in the free enterprise system, further
increasing the economic vitality of the Nation.
(c) Compliance Policy.--In complying with the statement of
congressional policy expressed in this section, each Federal
agency, to the maximum extent practicable, should--
(1) avoid unjustified enforcement actions directed at small
parties covered by EAJA;
(2) encourage settlement of justified enforcement actions
directed at small parties covered by EAJA; and
(3) minimize impediments to prompt resolution and payment
of reasonable attorneys' fees to prevailing small parties
covered by EAJA.

SEC. 3. REPORTING AND TECHNICAL ASSISTANCE BY OFFICE OF
ADVOCACY.

(a) Functions of Office of Advocacy.--Section 202 of Public
Law 94-305 (15 U.S.C. 634b) is amended--
(1) in paragraph (3), by inserting before the semicolon at
the end the following: ``and for ensuring that the justice
system remains accessible to small businesses for the
resolution of disputes with the Federal Government''; and
(2) by striking paragraph (11) and inserting the following:
``(11) advise, cooperate with, and consult with the
President and Attorney General with respect to section 303(b)
of the Small Business Economic Policy Act of 1980 (15 U.S.C.
631b(b)) and section 504(e) of title 5, United States Code;
and''.
(b) Duties of Office of Advocacy.--Section 203 of Public
Law 94-305 (15 U.S.C. 634c) is amended--
(1) in paragraph (2), by inserting before the semicolon at
the end the following: ``, including the resolution of
disputes with the Federal Government and the role of
procedures established by the Equal Access to Justice Act
(Public Law 96-481; 94 Stat. 2325) in such disputes''; and
(2) in paragraph (3), by inserting after ``the Small
Business Act'' the following: ``, including those related to
the Equal Access to Justice Act,''.
(c) Reports to Congress.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Attorney General, in cooperation
with the Chief Counsel for Advocacy of the Small Business
Administration, shall transmit to the congressional
committees specified in paragraph (2) a report containing--
(A) an analysis of the effectiveness of the Equal Access to
Justice Act (Public Law 96-481; 94 Stat. 2325) (in this
paragraph referred to as ``EAJA'') in achieving its purpose
to ease the burden upon small businesses and other small
parties covered by EAJA of engaging in dispute resolution
with the Federal Government, including--
(i) the relative awareness of EAJA in the small business
community;
(ii) the relative awareness of EAJA's requirements among
Federal agencies;
(iii) the extent and quality of rules and regulations
adopted by each Federal agency for processing, resolving, and
paying attorneys' fees claims under EAJA;
(iv) the extent to which each Federal agency claims any
exemptions in whole or in part from EAJA's coverage;
(v) the frequency or degree of use of EAJA's procedures by
prevailing small businesses; and
(vi) an analysis of the costs and benefits of EAJA
generally;
(B) an analysis of the variations in the frequency and
amounts of fee awards paid by specific Federal agencies and
within specific Federal circuits and districts under section
504 of title 5, United States Code, and section 2412 of title
28, United States Code, including the number and total dollar
amount of all claims filed with, and all claims processed,
settled, litigated, and paid by, each agency under EAJA; and
(C) recommendations for congressional oversight or
legislative changes with respect to EAJA, including any
recommendations for promulgation or amendment of regulations
issued under EAJA by specific Federal agencies.
(2) Specified committees.--The congressional committees
referred to in paragraph (1) are the following:
(A) The Committee on the Judiciary and the Committee on
Small Business of the House of Representatives.
(B) The Committee on the Judiciary and the Committee on
Small Business and Entrepreneurship of the Senate.
(3) Report on small business and competition.--Section 303
of the Small Business Economic Policy Act of 1980 (15 U.S.C.
631b) is amended--
(A) in subsection (a), by striking paragraph (5) and
inserting the following:
``(5) recommend a program for carrying out the policy
declared in section 302 (including a policy to ensure that
the justice system remains accessible to small business
enterprises for the resolution of disputes with the Federal
Government), together with such recommendations for
legislation as the President may deem necessary or
desirable.'';
(B) in subsection (b)--
(i) by striking ``(b)'' and inserting ``(b)(1)''; and
(ii) by adding at the end the following:
``(2) The President, after consultation with the Chief
Counsel for Advocacy of the Small Business Administration and
the Attorney General, shall transmit simultaneously as an
appendix to such annual report, a report that describes, by
agency and department--
``(A) the total number of claims filed, processed, settled,
and litigated by small business concerns under section 504 of
title 5, United States Code, and section 2412 of title 28,
United States Code (originally enacted pursuant to the Equal
Access to Justice Act (Public Law 96-481; 94 Stat. 2325));
``(B) the total dollar amount of all outstanding awards and
settlements to small business concerns under such sections;
``(C) the total dollar amount of all claims paid to small
business concerns under such sections;
``(D) the underlying legal claims involved in each
controversy with small business concerns under such sections;
and
``(E) any other relevant information that the President
determines may aid Congress in evaluating the impact on small
business concerns of such sections.
``(3) Each agency shall provide the President with such
information as is necessary for the President to comply with
the requirements of this subsection.''; and
(C) in subsection (d)--
(i) by striking ``(d)'' and inserting ``(d)(1)''; and
(ii) by adding at the end the following:
``(2) All reports concerning the Equal Access to Justice
Act (Public Law 96-481; 94 Stat. 2325), or the congressional
policy to ensure that the justice system remains accessible
to small business enterprises for the resolution of disputes
with the Federal Government, shall be transmitted to the
following congressional committees:
``(A) The Committee on the Judiciary and the Committee on
Small Business of the House of Representatives.
``(B) The Committee on the Judiciary and the Committee on
Small Business and Entrepreneurship of the Senate.''.

SEC. 4. EQUAL ACCESS FOR SMALL PARTIES IN CIVIL AND
ADMINISTRATIVE PROCEEDINGS.

(a) Elimination of Substantial Justification Standard.--
(1) Administrative proceedings.--Section 504 of title 5,
United States Code, is amended--
(A) in subsection (a)(1), by striking ``, unless the
adjudicative officer'' and all that follows through the
period at the end and inserting a period; and
(B) in subsection (a)(2), by striking ``The party shall
also allege that the position of the agency was not
substantially justified.''.
(2) Judicial proceedings.--Section 2412 of title 28, United
States Code, is amended--
(A) in subsection (d)(1)(A), by striking ``, unless the
court'' and all that follows through the period at the end
and inserting a period;
(B) in subsection (d)(1)(B), by striking ``The party shall
also allege'' and all that follows through the period at the
end and inserting a period; and
(C) in subsection (d)(3), by striking ``, unless the
court'' and all that follows through the period at the end
and inserting a period.
(b) Eligibility of Small Businesses for Fee Award.--
(1) Administrative proceedings.--
(A) In general.--Section 504(b)(1)(B)(ii) of title 5,
United States Code, is amended by striking ``$7,000,000'' and
inserting ``$10,000,000''.
(B) Adjustment in net worth limitation.--Section 504(b) of
title 5, United States Code, is amended by adding at the end
the following:
``(3) Beginning on January 1 of the 5th year following the
date of enactment of this paragraph, and on January 1 every 5
years thereafter, the dollar amount under paragraph
(1)(B)(ii) shall be adjusted by the Producer Price Index as
determined by the Secretary of the Treasury, in collaboration
with the Bureau of Labor Statistics.''.
(2) Judicial proceedings.--
(A) In general.--Section 2412(d)(2)(B)(ii) of title 28,
United States Code, is amended by striking ``$7,000,000'' and
inserting ``$10,000,000''.
(B) Adjustment in net worth limitation.--Section 2412(d) of
title 28, United States Code, is amended by adding at the end
the following:
``(5) Beginning on January 1 of the 5th year following the
date of enactment of this paragraph, and on January 1 every 5
years thereafter, the dollar amount under paragraph
(2)(B)(ii) shall be adjusted by the Producer Price Index as
determined by the Secretary of the Treasury, in collaboration
with the Bureau of Labor Statistics.''.
(c) Elimination of Rate Cap.--

[[Page S12953]]

(1) Administrative proceedings.--Section 504(b)(1)(A) of
title 5, United States Code, is amended--
(A) by striking ``(i)''; and
(B) by striking ``by the agency involved'' and all that
follows through ``a higher fee'' and inserting ``by the
agency involved''.
(2) Judicial proceedings.--Section 2412(d)(2)(A) of title
28, United States Code, is amended--
(A) by striking ``(i)''; and
(B) by striking ``by the United States'' and all that
follows through ``a higher fee'' and inserting ``by the
United States''.
(d) Offers of Settlement.--
(1) Administrative proceedings.--Section 504(a) of title 5,
United States Code, as amended by this section, is further
amended by adding at the end the following:
``(5)(A) At any time after an agency receives an
application submitted under paragraph (2), the agency may
serve upon the applicant a written offer of settlement of the
claims made in the application. If within 10 business days
after such service the applicant serves written notice that
the offer is accepted, either the agency or the applicant may
then file the offer and notice of acceptance together with
proof of service thereof.
``(B) An offer not accepted within the time allowed shall
be deemed withdrawn. The fact that an offer is made but not
accepted shall not preclude a subsequent offer. If any award
of fees and expenses for the merits of the proceeding finally
obtained by the applicant is not more favorable than the
offer, the applicant shall not be entitled to receive an
award for fees or other expenses incurred (in relation to the
application for fees and expenses) after the date of the
offer.''.
(2) Judicial proceedings.--Section 2412(d)(1) of title 28,
United States Code, as amended by this section, is further
amended by adding at the end the following:
``(E)(i) At any time after an agency receives an
application submitted under subparagraph (B), the agency may
serve upon the applicant a written offer of settlement of the
claims made in the application. If within 10 business days
after such service the applicant serves written notice that
the offer is accepted, either the agency or the applicant may
then file the offer and notice of acceptance together with
proof of service thereof.
``(ii) An offer not accepted within the time allowed shall
be deemed withdrawn. The fact that an offer is made but not
accepted shall not preclude a subsequent offer. If any award
of fees and expenses for the merits of the proceeding finally
obtained by the applicant is not more favorable than the
offer, the applicant shall not be entitled to receive an
award for fees or other expenses incurred (in relation to the
application for fees and expenses) after the date of the
offer.''.
(e) Declaration of Intent to Seek Fee Award.--
(1) Administrative proceedings.--Section 504(a)(2) of title
5, United States Code, as amended by this section, is further
amended by inserting before the first sentence the following:
``At any time after the commencement of an adversary
adjudication, the adjudicative officer may (and if requested
by a party shall) require a party to declare whether such
party intends to seek an award of fees and expenses against
the agency should such party prevail.''.
(2) Judicial proceedings.--Section 2412(d)(1)(B) of title
28, United States Code, as amended by this section, is
further amended by inserting before the first sentence the
following: ``At any time after the commencement of an
adversary adjudication, as defined in subsection (b)(1)(C) of
section 504 of title 5, United States Code, the court may
(and if requested by a party shall) require a party to
declare whether such party intends to seek an award of fees
and expenses against the agency should such party prevail.''.
(f) Payment of Attorneys' Fees From Agency
Appropriations.--
(1) Administrative proceedings.--Section 504(d) of title 5,
United States Code, is amended to read as follows:
``(d)(1) Fees and other expenses awarded under this section
shall be paid by any agency over which the party prevails
from any funds made available to the agency by appropriation
or otherwise.
``(2) Fees and expenses awarded under this section may not
be paid from the claims and judgments account of the Treasury
from funds appropriated pursuant to section 1304 of title 31.
``(3) Paragraph (2) shall not apply to the National Labor
Relations Board, the Occupational Safety and Health
Administration, the Mine Safety and Health Administration, or
the Equal Employment Opportunity Commission.''.
(2) Judicial proceedings.--Section 2412(d)(4) of title 28,
United States Code, is amended to read as follows:
``(4)(A) Fees and other expenses awarded under this
subsection shall be paid by any agency over which the party
prevails from any funds made available to the agency by
appropriation or otherwise.
``(B) Fees and expenses awarded under this section may not
be paid from the claims and judgments account of the Treasury
from funds appropriated pursuant to section 1304 of title 31.
``(C) Subparagraph (B) shall not apply to the National
Labor Relations Board, the Occupational Safety and Health
Administration, the Mine Safety and Health Administration, or
the Equal Employment Opportunity Commission.''.
(g) Eligibility of Taxpayers for Fee Award.--
(1) Administrative proceedings.--Section 504 of title 5,
United States Code, as amended by this section, is further
amended by striking subsection (f).
(2) Judicial proceedings.--Section 2412 of title 28, United
States Code, as amended by this section, is further amended
by striking subsection (e) and redesignating subsection (f)
as subsection (e).
(h) Conforming Amendment Relating to Reporting Requirement
Under Small Business Act.--Section 504(e) of title 5, United
States Code, is amended to read as follows:
``(e)(1) The Attorney General, after consultation with the
Chief Counsel for Advocacy of the Small Business
Administration, shall report annually to the Congress on the
amount of fees and other expenses awarded to individuals
during the preceding fiscal year pursuant to this section and
section 2412 of title 28. The report shall describe the
number, nature, and amount of the awards, the claims involved
in the controversy, and any other relevant information which
may aid the Congress in evaluating the scope and impact of
such awards for individuals engaged in disputes with Federal
agencies. Each agency shall provide the Attorney General with
such information as is necessary for the Attorney General to
comply with the requirements of this subsection.
``(2) A requirement that the President report annually on
proceedings affecting small business concerns under this
section and under section 2412 of title 28 is provided in
section 303(b) of the Small Business Economic Policy Act of
1980 (15 U.S.C. 631b(b)).''.
(i) Applicability.--The provisions of this section and the
amendments made by this section shall apply to any proceeding
pending on, or commenced on or after, the effective date of
this Act.

SEC. 5. DEFINITION OF PREVAILING PARTY IN EAJA CASES.

(a) Title 5.--Section 504(b)(1) of title 5, United States
Code, is amended by adding at the end the following:
``(G) `prevailing party' includes, in addition to a party
who prevails through a judicial or administrative judgment or
order, a party whose pursuit of a nonfrivolous claim or
defense was a catalyst for a voluntary or unilateral change
in position by the opposing party that provides any
significant part of the relief sought.''.
(b) Title 28.--Section 2412 of title 28, United States
Code, is amended--
(1) in subsection (d)(2)(H), by inserting after ``means''
the following: ``, subject to subsection (g),''; and
(2) by adding at the end the following:
``(g) For the purposes of this section, the term
`prevailing party' includes, in addition to a party who
prevails through a judicial or administrative judgment or
order, a party whose pursuit of a nonfrivolous claim or
defense was a catalyst for a voluntary or unilateral change
in position by the opposing party that provides any
significant part of the relief sought.''.

SEC. 6. EFFECTIVE DATE.

The provisions of this Act and the amendments made by this
Act shall take effect 30 days after the date of the enactment
of this Act.

Ms. SNOWE. Mr. President, as Chair of the Senate Committee on Small
Business and Entrepreneurship, I have fought to ensure that small
businesses across the country are treated fairly by the Federal
Government. Unfortunately, in far too many cases, Federal agencies take
arbitrary or abusive enforcement actions against small businesses. Few
repercussions deter the Federal Government from taking these
unwarranted and unjust actions, which can irreparably injure the
reputation and financial viability of a small business.
Enacted in 1980 on a bipartisan basis, the Equal Access to Justice
Act (EAJA) intended to allow small businesses to collect legal fees
after prevailing in litigation against the Federal Government. However,
a number of barriers and inefficiencies exist within EAJA that prevent
its effectiveness.
For example, EAJA currently requires a small business that has
prevailed in litigation against the Federal Government to enter into a
costly second proceeding with the government. At the second proceeding,
the government can assert a ``substantial justification'' defense to
prevent the small business from recovering its legal costs, even though
the small business prevailed on the merits of the underlying case in
court. Even in instances when the Federal Government based its actions
entirely on erroneous facts or without any legal basis, if the Federal
Government can show that it was ``substantially justified'' in taking
its actions, then a small business will be barred from EAJA recovery.
In practice, courts typically give a very wide berth to the
government's substantially justified defense--a reality that means that
prevailing small businesses can rarely, if ever, recover their legal
fees under EAJA. And while

[[Page S12954]]

a second proceeding may be in the best interest of the Federal agency--
especially because its case is being funded by the General Treasury--
the second proceeding may ultimately be more costly and more time
consuming to the small business than the original, underlying case.
I believe that this is a flawed system. Small businesses are a
driving force of the United States economy, representing 99.7 percent
of all employer firms and generating approximately 75 percent of net
new jobs annually. It is in our Nation's best interest to protect and
watch over small businesses, as their success and vitality are key to
America's economy and job growth.
It's plain and simple: We should not idly stand by while the Federal
Government mistreats our Nation's small businesses.
That is why today I introduce with my colleague Senator Feingold the
Equal Access to Justice Reform Act of 2005 (EAJRA). This bill would
ensure that small businesses are adequately protected from unreasonable
regulations and actions, as well as update EAJA to better serve today's
small businesses.
Under our legislation, small parties would be more likely to recover
their legal fees when they prevail in litigation against the Federal
Government. First, the EAJRA would eliminate the ``substantial
justification'' defense, which would increase the likelihood that small
businesses will be able to recover their legal costs after their
winning their case.
Second, our legislation would modernize the EAJA by updating
eligibility qualifications for small businesses. It would raise the
threshold for qualifying small businesses from $7 million to $10
million net worth, and index that threshold for inflation. Given modern
economic realities, a net worth of $7 million is no longer sufficient.
Third, the EAJRA would remove the hourly rate cap on attorney's fees.
The current hourly rate cap of $125 was set during EAJA's enactment in
1980, and has yet to be adjusted for inflation. However, the market
rate for competent legal services, especially for complex and high-risk
litigation against the Federal Government, is far greater than the cap
of $125 per hour. This limit prevents small businesses from receiving
fair and just reimbursement of attorney's fees, placing them at a
notable disadvantage.
Finally, the EAJRA would require agencies that lose lawsuits, other
than the National Labor Relations Board, the Occupational Safety and
Health Administration, the Mine Safety and Health Administration, and
the Equal Employment Opportunity Commission, to pay legal fees awarded
under EAJA out of their own budgets and not the General Treasury. This
would eliminate inefficient uses of Federal agency resources and would
discourage marginal or abusive Federal enforcement actions directed at
small parties. In addition, the Federal budget would no longer be
unnecessarily burdened.
The EAJRA creates a fair and even playing field. It would equalize
the level of accountability to Federal law among governments in the
United States. It is a ``good government'' statute that would promote
justice and equality of treatment between small and large entities, and
would greatly increase transparency in the Federal Government.
This legislation is absolutely necessary. I urge my colleagues to
support the Equal Access to Justice Reform Act so that we can ensure
that our nation's small businesses are protected from unfair and
unreasonable governmental actions.
______

By Mr. SMITH (for himself and Mr. Baucus):
S. 2019. A bill to provide for a research program for remediation of
closed methamphetamine production laboratories, and for other purposes;
to the Committee on Environment and Public Works.
Mr. BAUCUS. Mr. President, I am pleased to introduce with Senator
Smith a bill that would provide for the establishment of voluntary,
``health-based'' remediation guidelines for former methamphetamine
laboratories, an issue of great importance to Montana, Oregon, and all
of rural America.
The material and chemical byproducts of methamphetamine production
pose novel risks to the environment and public health. These risks are
compounded by the sheer number of meth labs and the vulnerability of
police, social service workers, and children exposed to meth
production. The DEA estimated that there were as many as 16,000 meth
labs in operation in 2004. Additionally, thousands of meth labs have
been busted over the years but never properly remediated. Producing one
pound of meth leaves behind six pounds of hazardous waste. In addition
to bulk waste, cooking meth infuses toxic chemicals into the walls,
carpeting, and ventilation systems of the homes, apartments, motel
rooms, and parks where meth is produced.
Unremediated methamphetamine labs pose significant public health
risks. The Department of Health and Human Services has reported that
law enforcement officials and social service workers exposed to meth
labs, or even just individuals removed from meth labs, have complained
of severe headaches, eye and respiratory irritations, nausea, and
burns. The need for remediation guidelines is clear.
Currently, eight States, including Montana, have ``feasibility-
based'' remediation standards. ``Feasibility-based'' standards consider
cost as a key factor in determining what level of remediation is
desirable. While such standards are a start, we need greater certainty
that our public servants and children are adequately protected.
Our bill provides a remedy. It directs the Assistant Administrator
for Research and Development of the EPA to establish voluntary
remediation guidelines, based on the best available scientific
knowledge. To further this effort, our bill provides for a program of
research to identify methamphetamine laboratory-related chemicals of
concern, assess the types and levels of exposure to chemicals of
concern--including routine and accidental exposures--that may present a
significant risk of adverse biological effects, and evaluate the
performance of various methamphetamine laboratory cleanup and
remediation techniques. Our bill does not regulate States. The
remediation guidelines are purely voluntary, meant to put States,
remediation consultants, homeowners, and realtors on the same page.
Methamphetamine production poisons not only users but also spouses,
children, public servants, and any future owners of properties exposed
to meth production. To protect the public we need consistent,
scientifically-based remediation guidelines.
______

By Mr. CHAMBLISS:
S. 2021. A bill to amend title 38, United States Code, to establish
in the Department of Veterans Affairs an Office of National Veterans
Sports Programs and Special Events; to the Committee on Veterans'
Affairs.
Mr. CHAMBLISS. Mr. President, I rise today to introduce my bill, the
``Disabled Veterans Sports and Special Events Promotion Act of 2005''.
We discovered during World War II that sports and physical activity
play a vital role in the rehabilitation of recently disabled military
personnel. Young service members who had just returned from WWII and
were undergoing rehabilitation were drawn to sports and other team
activities. The appeal of sports for these veterans served as more than
just a rehabilitation technique. In fact, sports served as a source of
motivation as well as a path to a fuller life for young people in the
aftermath of a disability. As would be expected, many of these veterans
became exceptional athletes and sought opportunities for competition
and excellence in the new world of competitive Paralympic sports.
With the onset of hostilities in Afghanistan and Iraq, a new
generation of U.S. military personnel with disabilities has emerged.
These newly-disabled men and women are young, ambitious, goal-oriented
and in their physical prime. Sport, which played a fundamental role for
returning veterans of World War II, Korea, and Vietnam, has the
capacity to assist military personnel in adjusting to life with a
disability. The United States Olympic Committee (USOC) and its
Paralympic partners recognize the opportunity to play a key role in the
lives of returning military personnel with newly acquired disabilities.
The USOC Paralympic Military Program is a collaborative effort among
the USOC, military installations and

[[Page S12955]]

commands, Veterans' Affairs (VA) offices and programs, and Paralympic
organizations nationwide that are conducting Paralympic sport programs
for active duty military personnel and veterans who have physical
disabilities.
The Program has been established to enable severely injured service
members and veterans to enhance their rehabilitation, readiness and
lifestyle through participation in Paralympic sports. The Program is
designed for recently injured service members, 2001 and after,
Paralympic-eligible disabilities; however, other service members and
veterans with physical disabilities who are able to engage in program
activities are welcome. Paralympic-eligible disabilities are:
amputations, visual impairments, Brain injuries affecting physical
mobility, spinal cord injuries and, other mobility-impairing
disabilities.
This bill would establish within the Department of Veterans Affairs
an Office of National Veterans Sports Programs and Special Events which
would establish and carry out sports programs for disabled veterans. In
addition, the office would arrange for the VA to sponsor sports
programs for disabled veterans conducted by other groups if the
Secretary detennines that the programs are consistent with the VA's
goals and missions. The office would provide for, facilitate, and
encourage disabled veterans to participate in these programs. Finally,
the office will cooperate with the USOC and their Paralympic Military
Program to promote participation of disabled veterans in the
Paralympics.
This bill allows those injured in service to our country the option
to regain a healthy, active lifestyle through sport and competition.
Competing in sports such as cycling, fencing, shooting, sled hockey,
table tennis, and sitting volleyball gives these injured veterans the
opportunity to rehabilitate their bodies and minds while competing at
the highest level. It is my hope that as we proceed with this bill, we
keep the people at the receiving end of our decisions and deliberations
foremost in our minds.
I ask my colleagues to support this bill.
______

By Mr. COLEMAN (for himself and Mr. Bingaman):
S. 2022. A bill to amend title XVIII of the Social Security Act to
provide for coverage of remote patient management services for chronic
health care conditions under the Medicare program; to the Committee on
Finance.
Mr. COLEMAN. Mr. President, constituents across the country in rural
areas face serious health care issues, not only in terms of illness but
also in lack of easily accessible services. One out of every five
Americans lives in rural areas however only one out of every ten
physicians practice in rural areas. Forty percent of our rural
population lives in a medically underserved area. With access to care
an average of thirty miles away, rural areas have much to gain from the
ability to access healthcare information at a distance. We depend on
our farmers and ranchers--they are the lifeblood of America and take
care of the essentials in our lives such as feeding us and clothing us.
We should make sure to take care of them as well.
Today, I am proud to be joined by my friend, Senator Bingaman in
introducing the Remote Monitoring Access Act of 2005 to overcome the
barriers to more rapid diffusion of innovative new technologies that
will improve quality and access to care for Medicare beneficiaries, by
implementing changes in Medicare fee-for-service reimbursements. Our
legislation would create a new benefit category for remote patient
management services in the Medicare physician fee schedule. Under this
category, Medicare would cover physician services involved with the
remote management of specific medical conditions.
New technology that collects, analyzes, and transmits clinical health
information is in development or has recently been introduced to the
market. The promise of this remote management technology is clear:
better information on the patient's condition--collected and stored
electronically, analyzed for clinical value, and transmitted to the
physician or the patient--should improve patient care and access.
Remote monitoring technology is also emerging to extend the provision
of health care services to areas where there is a shortage of
physicians. This technology allows physicians to monitor and treat
patients without a face-to-face office visit, thereby increasing access
to physicians for patients living in rural areas.
In its March 2001 report, ``Crossing the Quality Chasm,'' the
Institute of Medicine stated that the automation of clinical and other
health transactions was an essential factor for improving quality,
preventing errors, enhancing consumer confidence in the health care
system, and improving efficiency, yet ``health care delivery has been
relatively untouched by the revolution in information technology that
has been transforming nearly every other aspect of society.''
Three major areas in which remote management technologies are
emerging in health care are the treatment of congestive heart failure
(CHF), diabetes and cardiac arrhythmia.
Despite these innovations and their ability to improve care, many new
clinical information and remote management technologies have failed to
diffuse rapidly. A significant barrier to wider adoption and evolution
of the technologies is the relative lack of payment mechanisms in fee-
for-service Medicare to reimburse for remote, non-face-to-face
management and disease management services provided by a physician.
Under existing Medicare fee schedules, physicians generally receive a
fixed, predetermined amount for a given service. The cost of devices
used or supplied in the service is usually bundled into the payment,
and payments are primarily provided for face-to-face interactions
between the physician and patient. The payment structure creates at
least two problems for the wider adoption of patient management
approaches using remote management technology.
To overcome the barriers to more rapid diffusion of innovative new
technology for Medicare beneficiaries, changes in Medicare fee-for-
service reimbursements are necessary. This legislation would create a
new benefit category for remote patient management services in the
Medicare physician fee schedule. Under this category, Medicare would
cover physician services involved with the remote management of
specific medical conditions.
The quality of care provided through remote management would allow
physicians to qualify for bonus payments conditioned on specific
quality measures. This legislation directs the Secretary, through the
Agency for Health Care Research and Quality (AHRQ) to develop standards
of care and quality standards for the remote management services
provided for each medical condition covered. AHRQ would develop these
standards working in conjunction with appropriate physician groups. The
Secretary is also given the authority to develop guidelines on the
frequency of billing for remote patient management services.
I urge my fellow colleagues to join me in ensuring rural Americans
have the access to remote monitoring and the opportunity to keep pace
with health technology by supporting the Remote Monitoring Access Act
of 2005.
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. 2022

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 ``Remote Monitoring Access Act
of 2005''.

SEC. 2. COVERAGE OF REMOTE PATIENT MANAGEMENT SERVICES FOR
CHRONIC HEALTH CARE CONDITIONS.

(a) In General.--Section 1861(s)(2) of the Social Security
Act (42 U.S.C. 1395x(s)(2)) is amended--
(1) in subparagraph (Y), by striking ``and'' at the end;
(2) in subparagraph (Z), by inserting ``and'' at the end;
and
(3) by inserting after subparagraph (Z) the following new
subparagraph:
``(AA) remote patient management services (as defined in
subsection (bbb));''.
(b) Services Described.--Section 1861 of the Social
Security Act (42 U.S.C. 1395x) is amended by adding at the
end the following new subsection:

``Remote Patient Management Services

``(bbb)(1) The term `remote patient management services'
means the remote monitoring and management of an individual

[[Page S12956]]

with a covered chronic health condition (as defined in
paragraph (2)) through the utilization of a system of
technology that allows a remote interface to collect and
transmit clinical data between the individual and the
responsible physician or supplier for the purposes of
clinical review or response by the physician or supplier.
``(2) For purposes of paragraph (1), the term `covered
chronic health condition' includes--
``(A) heart failure;
``(B) diabetes;
``(C) cardiac arrhythmia; and
``(D) any other chronic condition determined by the
Secretary to be appropriate for treatment through remote
patient management services.
``(3)(A) The Secretary, in consultation with appropriate
physician groups, may develop guidelines on the frequency of
billing for remote patient management services. Such
guidelines shall be determined based on medical necessity and
shall be sufficient to ensure appropriate and timely
monitoring of individuals being furnished such services.
``(B) The Secretary, acting through the Agency for Health
Care Research and Quality, shall do the following:
``(i) Not later than 1 year after the date of enactment of
the Remote Monitoring Access Act of 2005, develop, in
consultation with appropriate physician groups, a standard of
care and quality standards for remote patient management
services for the covered chronic health conditions specified
in subparagraphs (A), (B), and (C) of paragraph (2).
``(ii) If the Secretary makes a determination under
paragraph (2)(D) with respect to a chronic condition,
develop, in consultation with appropriate physician groups, a
standard of care and quality standards for remote patient
management services for such condition within 1 year of such
determination.
``(iii) Periodically review and update such standards of
care and quality standards under this subparagraph as
necessary.''.
(c) Payment Under the Physician Fee Schedule.--Section 1848
of the Social Security Act (42 U.S.C. 1395w-4) is amended--
(1) in subsection (c)(2)--
(A) in subparagraph (B)--
(i) in clause (ii)(II), by striking ``clause (iv)'' and
inserting ``clauses (iv) and (v)''; and
(ii) by adding at the end the following new clause:
``(v) Budgetary treatment of certain services.--The
additional expenditures attributable to services described in
section 1861(s)(2)(AA) shall not be taken into account in
applying clause (ii)(II) for 2006.''; and
(B) by adding at the end the following new paragraph:
``(7) Treatment of remote patient management services.--In
determining relative value units for remote patient
management services (as defined in section 1861(bbb)), the
Secretary, in consultation with appropriate physician groups,
shall take into consideration--
``(A) costs associated with such services, including
physician time involved, installation and information
transmittal costs, costs of remote patient management
technology (including devices and software), and resource
costs necessary for patient monitoring and follow-up (but not
including costs of any related item or non-physician service
otherwise reimbursed under this title); and
``(B) the level of intensity of services provided, based
on--
``(i) the frequency of evaluation necessary to manage the
individual being furnished the services;
``(ii) the amount of time necessary for, and the complexity
of, the evaluation, including the information that must be
obtained, reviewed, and analyzed; and
``(iii) the number of possible diagnoses and the number of
management options that must be considered.''; and
(2) in subsection (j)(3), by inserting ``(2)(AA),'' after
``(2)(W),''.
(d) Incentive Payments.--Section 1833 of the Social
Security Act (42 U.S.C. 1395l) is amended by adding at the
end the following new subsection:
``(v) Incentive for Meeting Certain Standards of Care and
Quality Standards in the Furnishing of Remote Patient
Management Services.--In the case of remote patient
management services (as defined in section 1861(bbb)) that
are furnished by a physician who the Secretary determines
meets or exceeds the standards of care and quality standards
developed by the Secretary under paragraph (3)(B) of such
section for such services, in addition to the amount of
payment that would otherwise be made for such services under
this part, there shall also be paid to the physician (or to
an employer or facility in cases described in clause (A) of
section 1842(b)(6)) (on a monthly or quarterly basis) from
the Federal Supplementary Medical Insurance Trust Fund an
amount equal to 10 percent of the payment amount for the
service under this part.''.
(e) Effective Date.--The amendments made by this section
shall apply to services furnished on or after January 1,
2006.
______

By Ms. MURKOWSKI:
S. 2024. A bill to raise the minimum State allocation under section
217(b)(2) of the Cranston-Gonzalez National Affordable Housing Act; to
the Committee on Banking, Housing, and Urban Affairs.
Ms. MURKOWSKI. Mr. President, I rise to introduce a bill that will
increase the minimum funding level for low population States for the
U.S. Department of Housing and Urban Development's HOME Investment
Partnerships Program.
This program was created when the Cranston-Gonzalez National
Affordable Housing bill was signed into law in 1990. Funds were first
appropriated for this program in 1992. HOME program funds are disbursed
to State and local governments for the purpose of assisting with the
expansion of housing for low-income families. These governmental
entities have a great deal of flexibility when using these funds to
implement the program's purpose.
When this program was created, a minimum funding level of $3 million
was created for States that would normally receive a small amount of
HOME funds under the allocation formula, which is based on a State's
population, among other parameters. Five States--Alaska, Delaware,
Nevada, Hawaii, and North Dakota--received this level of funding for
this program in fiscal year 2005. Bearing in mind inflation between
1992--when this program was first funded--and 2005, a $3 million
allocation in 1992 dollars decreased in value to $2,215,235 in 2005.
This is unacceptable. My State is one of the most expensive areas in
the country to develop housing, especially when one takes into account
the cost to transport building materials to extremely remote areas of
my State.
This legislation increases the minimum State funding level for the
HOME program to $5 million. Based on fiscal year 2005 allocations for
this program, eight States received less than $5 million. Those States
are: Alaska, Delaware, Nevada, Hawaii, Montana, North Dakota, Utah, and
Wyoming. My proposed increase in funding would be offset by an overall
decrease in allocations to other States. If a $5 million minimum
funding level had been in place in fiscal year 2005, the other 42
States would only have experienced an overall decrease of less than $13
million. Bearing in mind that the amount appropriated in fiscal year
2005 for this program is $1.865 billion, such a decrease in funds seems
reasonable considering no changes have been made to the minimum State
funding level since the HOME program was first funded in 1992.
In addition, the congressionally appointed, bipartisan Millennium
Housing Commission recommended increasing the minimum State funding
level for the HOME program to $5 million in their May 30, 2002, report
to Congress.
It is imperative that we address this important issue so that we can
address the housing needs of a greater amount of low-income families in
low-population States.
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. 2024

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 ``Small State HOME Program
Equity Act of 2005''.

SEC. 2. ALLOCATION OF RESOURCES.

Section 217(b)(2)(A) of the Cranston-Gonzalez National
Affordable Housing Act (42 U.S.C. 12747(b)(2)(A)) is amended
by striking ``$3,000,000'' each place it occurs and inserting
``$5,000,000''.
______

By Mr. BAYH (for himself, Mr. Brownback, Mr. Lieberman, Mr.
Coleman, Mr. Graham, Mr. Salazar, Mr. Sessions, Mr. Nelson of
Florida, Mr. Lugar, and Mr. Obama):
S. 2025. A bill to promote the national security and stability of the
United States economy by reducing the dependence of the United States
on oil through the use of alternative fuels and new technology, and for
other purposes; to the Committee on Finance.
Mr. LIEBERMAN. Mr. President, our dependence on foreign oil is
sapping America's power and independence as a nation. It is urgent we
begin now to diversify the fuels we use to power our vehicles or risk
ceding our national power to the rulers of faraway deserts, distant
tundras, steaming rain forests or off-shore, drilling platforms half a
world away.
I rise today as part of a bipartisan group of 10 Senators who
represent the American Northeast, South, Midwest and West to introduce
the Vehicle and Fuel Choices for America Security Act.

[[Page S12957]]

We chose this title because nothing less than our national security
is at stake.
Besides myself, the rest of the ``Gang of Ten,'' or the ``Energy
Security Ten,'' as some call us are Senators Sam Brownback of Kansas,
Evan Bayh of Indiana, Norm Coleman of Minnesota, Lindsey Graham of
South Carolina, Ken Salazar of Colorado, Jeff Sessions of Alabama, Bill
Nelson of Florida, Richard Lugar of Indiana and Barack Obama of
Illinois. And we expect even more of our colleagues from both sides of
the aisle will be joining us soon.
I hope that in the future we all look back on the day this bill was
introduced as the beginning of a major shift in our national security
strategy. I hope that history will say we saw a challenge to our
national security and prosperity and then met it and mastered it.
A recent report by the International Energy Agency, IEA, sums up the
urgent need for our legislation.
According to the IEA, global demand for oil--now about 85 million
barrels a day--will increase by more than 50 percent to 130 million
barrels a day between now and 2030 if nothing is done.
The industrialized world's dependence on oil heightens global
instability. The authors of the IEA report note that the way things are
going ``we are ending up with 95 percent of the world relying for its
economic well-being on decisions made by five or six countries in the
Middle East.''
Besides the Mideast, I would add that Nigeria is roiled by
instability, Venezuela's current leadership is hostile to us and
Russia's resurgent state power has ominous overtones.
In fact, we are just one well-orchestrated terrorist attack or
political upheaval away from a $100-a-barrel overnight price spike that
would that would send the global economy tumbling and the
industrialized world, including China and India, scrambling to secure
supplies from the remaining and limited number of oil supply sites.
History tells us that wars have started over such competition.
Left unchecked, I fear that we are literally watching the slow but
steady erosion of America's power and independence as a nation--our
economic and military power and our political independence.
We are burning it up in our automobile engines and spewing it from
our tailpipes because of our absolute dependence on oil to fuel our
cars and trucks.
That dependence on oil--and that means foreign oil because our own
reserves are less than 1 percent of the world's oil reserves--puts us
in jeopardy in three key ways--a convergence forming a perfect storm
that is extremely dangerous to America's national security and economy.
First, the structure of the global oil market deeply affects--and
distorts--our foreign policy. Our broader interests and aspirations
must compete with our own need for oil and the growing thirst for it in
the rest of the world--especially by China and India.
As a study in the journal Foreign Affairs makes clear, China is
moving aggressively to compete for the world's limited supplies of oil
not just with its growing economic power, but with its growing military
and diplomatic power as well.
Second, today we must depend for our oil on a global gallery of
nations that are politically unstable, unreliable, or just plain
hostile to us.
All that and much more should make us worry because if we don't
change--it is within their borders and under their earth and waters
that our economic and national security lies.
Doing nothing about our oil dependency will make us a pitiful giant--
like Gulliver in Lilliput--tied down by smaller nations and subject to
their whims. And we will have given them the ropes and helped them tie
the knots.
We can take on this problem now and stand tall as the free and
independent giant we are by moving our nation--and the world--on to
energy independence, by setting America free from its dependence on
oil.
There is only one way to do this. We need to transform our total
transportation infrastructure from the refinery to the tailpipe and
each step in between because transportation is the key to energy
independence.
Barely 2 percent of our electricity comes from oil.
Ninety six percent of the energy used to power our cars comes from
oil--literally millions of barrels of oil per day. This is
unsustainable and dangerous.
The Vehicle and Fuel Choices for America Security Act aims to
strengthen America's security by transforming transportation from the
refinery to the tailpipe and each step in between, thus breaking our
dependence on foreign oil.
We start by making it our national policy to cut consumption by 10
million barrels a day over the next 25 years.
First, we need to rethink and then remake our fuel supplies. Gasoline
is not the only portable source of stored energy. Tons of agricultural
waste and millions of acres of idle grassland can be used to create
billions of barrels of new fuels.
Our farmers could soon be measuring production in barrels of energy
as well as bushels of food.
Then we must remake our automobile engines as well. Vehicles that get
500 miles per gallon--or that use no refined crude oil--are within our
grasp. I know that sounds unbelievable. I am going to tell you how we
can do it.
To help us get there, our bill also requires that by 2012, 10 percent
of all vehicles sold in the U.S. be hybrid, hybrid-electric plug-in or
alternative fuel vehicles. That number will rise by 10 percent a year
until it reaches 50 percent in 2016.
To help spur this market along, our bill amends our current energy
policy to require that one quarter of federal vehicles purchased must
be hybrids or plug-in hybrids.
My bill will detail how we can get there with available technology
and previously unavailable Federal Government leadership. Coupling
these new programs with the explicit oil-savings goals for the Federal
Government is the key to the effectiveness of this proposal.
I can almost hear colleagues murmur, So, Senator Lieberman, what else
is new? We've been hearing this for years and nothing has happened.
I can't blame you if you are skeptical. The struggle for oil
independence has been going on at least since Jimmy Carter was
President.
But things have changed since the days of Jimmy Carter and even since
last summer. There is a new understanding of the depth of the crisis
that our oil dependence is creating.
This summer's doubling of gasoline and crude oil prices hit tens of
millions of Americans with the global reality of oil demand and
pricing. And Hurricane Katrina reminded us how vulnerable our supplies
can become.
This reality is bipartisan. And, along with my colleagues
cosponsoring this bill, I think Americans are ready to set the serious
goals that eluded us in the past and take the bold steps necessary to
reach those goals.
Now let me give you more details.
The bill I will propose puts our Nation's transportation system on a
new road--a road where the tanks are filled with more home-grown fuel--
and I do mean grown--not just American corn, but from American sugar,
prairie grass, and agricultural waste.
We will push harder for more and quicker production and
commercialization of biomass-based fuels.
The Energy bill signed into law last summer created a new set of
incentives for these fuel alternatives, including their commercial
production.
What my bill would do--again, by including a mass-production mandate
for alternative fuel vehicles--is ensure that the investments would be
made in the facilities to produce and market these new fuels by
providing big demand for them.
The bill would also create a program to guarantee that filling
stations had the pumps to provide the fuel to keep pace with the
growing alternative-fuel fleet produced by the mandate.
Is there a model to give us confidence we can achieve this
transformation? Yes.
Brazil is now enjoying substantial immunity from current high world
oil prices, thanks to a long-term strategy, launched during the oil
shocks of the 1970s, to integrate sugar cane ethanol into its fuel
supply. They started initially with a mandate that all fuel sold in the
country contain 25 percent alcohol. They are now up to 40 percent
biofuels.

[[Page S12958]]

In addition to the fuel mandate, Brazil offered low-interest loans
and tax breaks for the building of distilleries and subsidized a fuel
distribution network.
Brazil has the advantage of a substantial sugar cane industry already
in place. But we have our own vast potential to develop our own biofuel
supply, using feedstock like corn, crop waste, switch grass, sugarcane
and fast-growing trees and shrubs such as hybrid poplars and willows.
According to the Department of Energy, if two-thirds of the Nation's
idled cropland were used to grow these kinds of energy crops, the
result could be dramatic. Those 35 million acres could produce between
15 and 35 billion gallons of ethanol each year to fuel cars, trucks,
and buses.
That is about 2.2 million barrels of fuel a day from right here in
the U.S.A.
What Brazil offers us, more importantly, is a case study of
government leadership to combine technology mandates and subsidies to
wean its transportation sector from foreign oil to a domestic
alternative.
From this January through this July--before this summer's fuel
spike--we have sent almost $100 billion out of the country to purchase
oil, while the Brazilians are now relying on home-grown fuel.
The key to their success is that they responded 30 years ago to the
first storm warnings. We did not, and now the storm is at our shores,
slapping against the levees of our economic strength and national
security. We have to mobilize and lead a similar response as Brazil
did.
If we do this right, our farmers could soon be measuring production
in barrels of energy as well as bushels of food. Our energy would be
guaranteed ``Made in America'' and the profits would be guaranteed
``Kept in America.''
For all these new fuels to be effective, we need the flexible fuel
vehicles that can take advantage of them.
As I said earlier, our bill also requires that 50 percent of all
vehicles sold in the U.S. be hybrid, hybrid-electric plug-in, or
alternative fuel vehicles by 2016.
Sound ambitious? It is not. It has already happened in Brazil.
Several automakers selling cars in Brazil, including our own General
Motors and Ford, already manufacture a fleet that is more than 50-
percent flexible fuel cars that can run on any combination of gasoline
and biofuels.
The technology exists now and adds a negligible cost--about $150--to
the price of each vehicle. For this we get the flexibility to power a
car with fuel made from corn, prairie grass, or agricultural waste from
our own heartland that will cost a lot less than gasoline does today.
Maximizing fuel efficiency and promoting energy independence even
further would be a new generation of flexible-fuel hybrid cars known as
plug-ins because you can plug them in at night to recharge the battery.
Hybrids that use a use both a gasoline engine and electric motor for
power are already getting 50 miles per gallon. Making them flexible
fuel cars, as I've already said, can save us more than 2 million
barrels of gasoline a day.
But we can do even better--dramatically better--with the plug-in
hybrid that is just now on the threshold of commercialization. Like the
present hybrids, it would use both a gasoline and electric motor. But
the plug-in hybrid would be able to use the battery exclusively for the
first 30 miles of a trip.
Think of that for a minute. Although Americans drive about 2.2
trillion miles a year, according the Census, the vast majority of those
trips are less than 15 miles.
That means a plug-in hybrid would use zero--zero--gallons of gas or
any combustible fuel for the vast majority of its trips. And experts
tell me it could effectively get the 500 miles per gallon on longer
trips.
Plugging in your car during off peak hours--when power is in surplus
and cheaper--would soon just become part of the modem daily routine,
like plugging in your cell phone or PDA before you go to bed.
And off-peak electricity can be the equivalent of 50 cent a gallon
gasoline, I repeat--the equivalent of 50 cent a gallon fuel is
feasible.
Of course, electricity does not come magically through the wires to
our homes. That power would come from coal, natural gas, nuclear,
solar, wind or other sources--sources that we have in abundance here at
home--and a little--very little--would come from oil.
This isn't pie in the sky. These vehicles could be in your garage
within a couple of years. Some of the incentives for achieving this
were included in the Energy bill signed into law in August. But they
did not go nearly far enough.
We need to couple these incentives with real performance standards
and sales requirements to ensure that as soon as possible new cars are
running not just on gasoline but on biofuels and electricity.
As always, there is a do-nothing crowd that says the ever-rising
price of gasoline and crude oil are the cure--that with higher prices
people will reduce consumption and the market will respond with greater
investments in the supply of oil to bring prices down.
But all that would do is perpetuate the problem. Market-driven oil-
dependency is still dependency on foreign oil, driving us further down
the current path toward national insecurity and economic and
environmental troubles.
Some say that we can ease the crisis through greater domestic
drilling--in places like the Arctic Refuge and other public lands or
off our shores.
But that won't make a dent in the problem. In the world of oil,
geology is destiny and the U.S. today has only 1 percent of the world's
oil reserves. And that small new supply wouldn't matter much in the
global market, since the price of oil produced within the United States
rises and falls with the global market, regardless of where it is
produced.
We just don't have enough oil in the U.S. anymore. And no matter how
much more we drill, we will still be paying the world price of oil--not
an American price.
Our present energy and transportation systems were born at the end of
the 19th and the beginning of the 20th centuries with the twin
discoveries of oil extraction and the internal combustion engine. Those
systems have served us well bringing growth to our Nation and the
world.
But it is now the 21st century, and it is time to move on. The era of
big oil is over. It is time to revolutionize our entire energy
infrastructure, from the refinery to the tailpipe, and begin a new era
of energy independence.
It is time to set America free by cutting our dependence on foreign
oil and by doing so strengthen our security, preserve our independence
and energize our economy.
______

By Mr. LAUTENBERG (for himself, Mr. Kerry, Mr. Dorgan, and Mr.
Dayton):
S. 2026. A bill to amend title XVIII of the Social Security Act to
require that a prescription drug plan or an MA-PD plan that has an
initial coverage limit obtain a signed certification prior to enrolling
beneficiaries under the plan under part D of such title; to the
Committee on Finance.
Mr. LAUTENBERG. Mr. President, I rise to introduce the Medicare
Prescription Drug Gap Disclosure Act with my colleagues, Senators
Kerry, Dorgan and Dayton. This important legislation will require
Medicare beneficiaries enrolling in a Medicare Prescription Drug Plan,
PDP, or Medicare Advantage Drug Plan, MA-PD, with a potential coverage
gap to sign a short, easy to read, statement indicating that they are
aware of the potential loss of coverage.
Yesterday, 42 million Medicare beneficiaries became eligible to sign
up for the new Medicare prescription drug benefit, scheduled to start
on January 1, 2006. However, too many seniors are understandably
confused about this complicated change to Medicare, and I fear that
many may sign up for drug plans without understanding the major
pitfalls of the program. The biggest pitfall in the drug plan is the
notorious ``coverage gap'' also known as the ``donut hole.''
In the coverage gap, beneficiaries pay 100 percent of prescription
costs after they exceed a certain level of out-of-pocket spending and
before protection kicks in against catastrophic drug expenses. They
also continue to pay 100 percent of their monthly premiums.
We need to make sure that seniors are aware of the threat that the
coverage gap poses, and it should not be

[[Page S12959]]

hidden in a mountain of paperwork. My legislation would require plan
providers to have beneficiaries sign the following certification before
enrollment:

I understand that the Medicare Prescription Drug Plan or
MA-PD Plan that I am signing up for may result in a gap in
coverage during a given year. I understand that if subject to
this gap in coverage, I will be responsible for paying 100
percent of the costs of my prescription drugs and will
continue to be responsible for paying the plan's monthly
premium while subject to this gap in coverage. For specific
information on the potential coverage gap under this plan, I
understand that I should contact [prescription drug plan] at
[toll free phone number].

The bottom line is that, after months of trying to explain this new
drug benefit to Medicare beneficiaries, many do not understand the
ramifications of the coverage gap. Unfortunately, millions of Medicare
beneficiaries may learn about the coverage gap the hard way--when the
pharmacist at the cash register tells them sometime next year that they
are suddenly required to pay the full cost of their prescriptions.
Mr. President, a study by the Commonwealth Fund found that 38 percent
of Medicare enrollees are likely to experience this costly interruption
in care. Moreover, the benefits must be renewed each year, meaning that
the coverage gap repeats itself if beneficiaries reach the coverage gap
again.
A recent survey by the Kaiser Foundation and the Harvard School of
Public Health, found that only 35 percent of people 65 and older said
they understood the new drug benefit. In addition, the numerous media
stories in recent days contain anecdotal evidence that illustrates the
confusion around the new drug benefit.
I therefore urge my colleagues to support this bill. Only with such a
clear, separate disclaimer will seniors have a fair opportunity to be
warned of the risks posed by this gap in drug coverage.
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. 2026

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 Prescription Drug
Gap Disclosure Act''.

SEC. 2. REQUIREMENT OF SIGNED CERTIFICATION PRIOR TO PLAN
ENROLLMENT UNDER PART D.

(a) In General.--Section 1860D-1(b)(1) of the Social
Security Act (42 U.S.C. 1395w-101) is amended by adding at
the end the following new subparagraph:
``(D) Special rule for plans with an initial coverage
limit.--
``(i) In general.--The process for enrollment established
under subparagraph (A) shall include, in the case of a
prescription drug plan or an MA-PD plan that has an initial
coverage limit (as described in section 1860D-2(b)(3)), a
requirement that, prior to enrolling a part D eligible
individual in the plan, the plan must obtain a certification
signed by the enrollee or the legal guardian of the enrollee
that meets the requirements described in clause (ii) and
includes the following text: `I understand that the Medicare
Prescription Drug Plan or MA-PD Plan that I am signing up for
may result in a gap in coverage during a given year. I
understand that if subject to this gap in coverage, I will be
responsible for paying 100 percent of the cost of my
prescription drugs and will continue to be responsible for
paying the plan's monthly premium while subject to this gap
in coverage. For specific information on the potential
coverage gap under this plan, I understand that I should
contact (insert name of the sponsor of the prescription drug
plan or the sponsor of the MA-PD plan) at (insert toll free
phone number for such sponsor of such plan).'.
``(ii) Certification requirements described.--The
certification required under clause (i) shall meet the
following requirements:

``(I) The certification shall be printed in a typeface of
not less than 18 points.
``(II) The certification shall be printed on a single piece
of paper separate from any matter not related to the
certification.
``(III) The certification shall have a heading printed at
the top of the page in all capital letters and bold face type
that states the following: `WARNING: POTENTIAL MEDICARE
PRESCRIPTION DRUG COVERAGE GAP'.''.

(b) Effective Date.--The amendment made by this section
shall take effect on the date of enactment of this Act.

____________________