[Congressional Record Volume 152, Number 93 (Monday, July 17, 2006)]
[Senate]
[Pages S7629-S7632]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. HATCH (for himself and Mr. Kennedy):
  S. 3668. A bill to amend the Public Health Service Act to provide for 
the expansion and improvement of traumatic brain injury programs, and 
for other purposes; to the Committee on Health, Education, Labor, and 
Pensions.
  Mr. HATCH. Mr. President, as we face the close of the 109th Congress 
in the coming months, I feel it is important that we reauthorize the 
Traumatic Brain Injury Act. It is my pleasure to introduce this 
reauthorization bill along with the ranking minority member of the 
Senate Health, Education, Labor, and Pension Committee, Senator Ted 
Kennedy, with whom I worked on the original legislation over 10 years 
ago. Our colleagues on the House side, Representatives Bill Pascrell, 
Jr., and Todd Russell Platts, have just recently introduced a companion 
bill with the same goal of reauthorizing the TBI Act this year.
  Sustaining a traumatic brain injury--or TBI--can be both catastrophic 
and devastating. The financial and emotional costs to the individual, 
family, and community are enormous. Traumatic brain injuries contribute 
to a substantial number of deaths and cases of permanent disability 
annually.
  Of the 1.4 million who sustain a TBI each year in the United States: 
50,000 die; 235,000 are hospitalized; and 1.1 million are treated and 
released from an emergency department. Brain injuries are the most 
frequent reasons for visits to physicians and emergency rooms.
  These statistics are more revealing when one considers that every 16 
seconds someone in the U.S. sustains a head injury; every 12 minutes, 
one of these people will die and another will become permanently 
disabled. Of those who survive, each year, an estimated 80,000 to 
90,000 people experience the onset of long-term disability associated 
with a TBI. An additional 2,000 will exist in a persistent vegetative 
state.
  Even more startling is the fact that brain injury kills more 
Americans under the age of 34 than all other causes combined and has 
claimed more lives since the Turn of the Century than all United States 
wars combined. Sixty-eight percent of war veterans are returning home 
with sustained brain injuries.
  The distress of TBI is not limited to diagnosis. A survivor of a 
severe brain injury typically faces 5 to 10 years of intensive services 
and estimated lifetime costs can exceed $4 million. Direct medical 
costs and indirect costs such as lost productivity of TBI totaled an 
estimated $60 billion in the United States in 2000.
  The Traumatic Brain Injury Act is the only Federal legislation 
specifically addressing issues faced by 5.3 million American children 
and adults who live with a long-term disability as a result of 
traumatic brain injury. Reauthorization of the Traumatic Brain Injury 
Act will provide for the continuation of research, not only for the 
treatment of TBI but also for prevention and awareness programs which 
will help decrease the occurrence of traumatic brain injury and improve 
the long-term outcome.
  In 2006, Congress has an opportunity to strengthen the TBI Act by 
authorizing the Centers for Disease Control and Prevention, CDC, to 
determine the incidence and prevalence of traumatic brain injury in the 
general population of the United States, including all age groups and 
persons in institutional settings such as nursing homes, correctional 
facilities, psychiatric hospitals, child care facilities, and 
residential institutes for people with developmental disabilities.

  This legislation authorizes the Health Resources and Services 
Administration, HRSA, to make grants for projects of national 
significance that improve individual and family access to service 
systems; assist states in developing service capacity; improve 
monitoring and evaluation of rehabilitation services and supports; and 
address emerging needs of servicemen and women, veterans, and 
individuals and families who have experienced brain injury through 
service delivery demonstration projects.
  This bill also authorizes HRSA to include the American Indian 
Consortium as an eligible recipient of competitive grants awarded to 
States, Territories, and the District of Columbia to develop 
comprehensive system of services and supports nationwide.
  Furthermore, this bill instructs HRSA and the Administration on 
Developmental Disabilities to coordinate data collection regarding 
protection and advocacy services.
  The TBI Act offers balanced and coordinated public policy in brain 
injury prevention, research, education, and community-based services 
and supports for individuals living with traumatic brain injury and 
their families.
  Mr. President, reauthorization of the Traumatic Brain Injury Act will 
further provide mechanisms for the prevention, treatment and the 
improvement of the quality of life for those Americans and their 
families who may sustain such a devastating disability. I ask my 
colleagues' support in promptly reauthorizing the Traumatic Brain 
Injury Act.
  Mr. KENNEDY. Mr. President, today I am proud to join with Senator 
Hatch in sponsoring the reauthorization of the Traumatic Brain Injury 
Act. This

[[Page S7630]]

bill will provide valuable assistance to the millions of children and 
adults in our nation who are facing an array of problems because of 
their injuries.
  First, it is critical for us to acknowledge the important role which 
the programs authorized under this bill can play for the large number 
of soldiers wounded in the war. As of June 2006--almost 19,000 service 
members have been wounded in Iraq and data continue to demonstrate that 
brain injuries are approximately two-thirds of the injuries suffered in 
the war.
  On top of that, there is an extremely high incidence of traumatic 
brain injuries among children between birth and age 14--approximately 
475,000 a year--and some of the highest numbers of injuries are among 
children under the age of five.
  Soldiers and children--I cannot think of groups more deserving of our 
attention.
  Reauthorization of the TBI Act is crucial to continued federal 
funding for a range of traumatic brain injury programs. The bill will 
reauthorize grants that have provided vital assistance to States, 
Territories, the District of Columbia, and American Indian Consortia in 
building or enhancing coordinated systems of community-based services 
and supports for children and adults with traumatic brain injuries.
  In addition, when Congress first authorized the Traumatic Brain 
Injury Act as part of the Children's Health Act of 2000, it had the 
foresight to include funding for the Protection and Advocacy for 
Individuals with Traumatic Brain Injury Program. This program has 
played a crucial role because individuals with traumatic brain injury 
have help in returning to work, finding a place to live, accessing 
needed supports and services such as attendant care and assistive 
technology, and obtaining appropriate mental health, substance abuse, 
and rehabilitation services. Often those with brain injuries--including 
our returning veterans--are forced to remain in extremely expensive 
institutional settings far longer than necessary because the community-
based supports and services they need are not available. Effective 
protection and advocacy services for people with traumatic brain injury 
can lead both to reduced Government expenditures and increased 
productivity, independence and community integration for patients. 
However, those who advocate for the injured must possess specialized 
skills and the work is often time-intensive.
  This legislation also provides funding for critical CDC programs that 
provide extremely important surveillance and injury prevention 
information.
  In a time when both the administration and Congress are searching for 
programs that provide the right kind of ``bang for the Federal buck,'' 
the recent findings in an Institute of Medicine March 2006 report show 
that the TBI programs work. Last year the various programs in the TBI 
bill were funded for a total of only $12 million--yet look at the good 
they do. Not only should these programs be reauthorized, the funding 
also should be increased.
  The IOM calls the TBI programs an ``overall success,'' stating that 
``there is considerable value in providing funding,'' and ``it is 
worrisome that the modestly budgeted HRSA TBI Program continues to be 
vulnerable to budget cuts.'' As the IOM study suggests, this program 
must be continued and allowed to grow in order to ensure that each 
state has the resources necessary to maintain critical services and 
advocacy for the estimated 5.3 million people currently living with 
disabilities resulting from brain injury.
  Again, soldiers and children, I cannot think of two more deserving 
groups of people in our Nation. We owe them the services and advocacy 
that these critical programs offer. And I urge our colleagues to 
support the passage of this important piece of bipartisan disability 
legislation this year.
                                 ______
                                 
      By Mr. GRASSLEY:
  S. 3676. A bill to amend the Congressional Accountability Act of 1995 
to apply whistleblower protections available to certain executive 
branch employees to legislative branch employees, and for other 
purposes; to the Committee on Homeland Security and Governmental 
Affairs.
  Mr. GRASSLEY. Mr. President, I rise today to announce that I am 
introducing a bill that will extend whistleblower protections currently 
available to certain executive branch employees to legislative branch 
employees.
  This bill is long overdue. The Office of Compliance has called for 
these changes on numerous occasions in recent years, and they are very 
supportive of this bill.
  I have fought for whistleblowers for many years. Whistleblowers are 
the key to exposing a dysfunctional bureaucracy. Government agencies 
too often want to cover up their mistakes. Without insiders being brave 
enough to uncover these violations or waste, the American taxpayer 
would continue to pay for them. These people should not be punished for 
bringing the misdeeds to light.
  Whistleblowers in the executive branch have helped me do my job of 
oversight. We have done a good job to make sure that whistleblowers in 
the executive branch are protected. It is simply not fair, nor is it 
good governance for Congress to enact whistleblower protections on the 
other branches of Government without giving its own employees the same 
consideration. This bill merely extends those same protections that 
other Government employees enjoy to Congress's own employees.
  I fully back hard-working Government employees who serve to protect 
our country, and I hope my colleagues will join me. Congress needs to 
make sure that its own employees can speak up without retaliation when 
they blow the whistle on fraud, waste, or abuse.
  Mr. President, I ask unanimous consent that the text of this bill be 
printed in the record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3676

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

     SECTION 1. APPLICATION OF WHISTLEBLOWER PROTECTION RULES TO 
                   LEGISLATIVE BRANCH EMPLOYEES.

       (a) In General.--Part A of title II of the Congressional 
     Accountability Act of 1995 (2 U.S.C. 1311 et seq.) is 
     amended--
       (1) in the heading, by striking ``FAIR LABOR STANDARDS,'' 
     and all that follows and inserting ``AND OTHER PROTECTIONS 
     AND BENEFITS'';
       (2) by redesignating section 207 as section 208; and
       (3) by inserting after section 206 the following:

     ``SEC. 207. RIGHTS AND PROTECTIONS UNDER WHISTLEBLOWER 
                   PROTECTION RULES.

       ``(a) Rights and Protections Described.--
       ``(1) In general.--No employing office may take or fail to 
     take, or threaten to take or fail to take, a personnel action 
     (within the meaning of chapter 23 of title 5, United States 
     Code) with respect to any covered employee or applicant for 
     employment because of--
       ``(A) any disclosure of information by a covered employee 
     or applicant which the employee or applicant reasonably 
     believes evidences--
       ``(i) a violation of any law, rule, or regulation; or
       ``(ii) gross mismanagement, a gross waste of funds, an 
     abuse of authority, or a substantial and specific danger to 
     public health or safety;

     if such disclosure is not specifically prohibited by law and 
     if such information is not specifically required by Executive 
     order or the rules of the Senate or the House of 
     Representatives to be kept secret in the interest of national 
     defense or the conduct of foreign affairs; or
       ``(B) any disclosure to the General Counsel, or to the 
     Inspector General of a legislative or executive agency or 
     another employee designated by the head of the legislative or 
     executive agency to receive such disclosures, of information 
     which the employee or applicant reasonably believes 
     evidences--
       ``(i) a violation of any law, rule, or regulation; or
       ``(ii) gross mismanagement, a gross waste of funds, an 
     abuse of authority, or a substantial and specific danger to 
     public health or safety.
       ``(2) Definitions.--For purposes of this section and for 
     purposes of applying the procedures established under title 
     IV for the consideration of alleged violations of this 
     section--
       ``(A) the term `covered employee' includes an employee of 
     the Government Accountability Office or Library of Congress; 
     and
       ``(B) the term `employing office' includes the Government 
     Accountability Office and the Library of Congress.
       ``(b) Remedy.--The remedy for a violation of subsection (a) 
     shall be such remedy as would be appropriate if awarded under 
     chapter 12 of title 5, United States Code, with respect to a 
     prohibited personnel practice described in section 2302(b)(8) 
     of such title.
       ``(c) Regulations To Implement Section.--
       ``(1) In general.--The Board shall, pursuant to section 
     304, issue regulations to implement this section.

[[Page S7631]]

       ``(2) Agency regulations.--The regulations issued under 
     paragraph (1) shall be the same as the substantive 
     regulations promulgated by the Merit Systems Protection Board 
     to implement chapters 12 and 23 of title 5, United States 
     Code, except to the extent that the Board of Directors of the 
     Office of Compliance may determine, for good cause shown and 
     stated together with the regulation, that a modification of 
     such regulations would be more effective for the 
     implementation of the rights and protections under this 
     section.''.
       (b) Technical and Conforming Amendments.--
       (1) Table of contents.--The table of contents for part A of 
     title II of the Congressional Accountability Act of 1995 is 
     amended--
       (A) in the item relating to part A, by striking ``FAIR 
     LABOR STANDARDS,'' and all that follows and inserting ``AND 
     OTHER PROTECTIONS AND BENEFITS'';
       (B) by redesignating the item relating to section 207 as 
     relating to section 208; and
       (C) by inserting after the item relating to section 206 the 
     following:

``Sec. 207. Rights and protections under whistleblower protection 
              rules.''.

       (2) Application of laws.--Section 102(a) of the 
     Congressional Accountability Act of 1995 (2 U.S.C. 1302(a)) 
     is amended by adding at the end the following:
       ``(12) Section 2302(b)(8) of title 5, United States 
     Code.''.
                                 ______
                                 
      By Mr. BINGAMAN (for himself, Mr. Santorum, Mrs. Murray, Mr. 
        Akaka, Mr. Jeffords, Mr. Kerry, Mr. Harkin, and Mr. Lieberman):
  S. 3677. A bill to amend title XVIII on the Social Security Act to 
eliminate the in the home restriction for Medicare coverage of mobility 
devices for individuals with expected long-term needs; to the Committee 
on Finance.
  Mr. BINGAMAN. Mr. President, I rise today to introduce the Medicare 
Independent Living Act of 2006 with Senators Santorum, Murray, Collins, 
Akaka, Jeffords, Kerry, Harkin, Kennedy, and Lieberman. This 
legislation would eliminate Medicare's ``in the home'' restriction for 
the coverage of mobility devices, including wheelchairs and scooters, 
for those with disabilities and expected long-term needs. This includes 
people with multiple sclerosis, paraglegia, osteoarthritis, and 
cerebrovascular disease that includes acute stroke and conditions like 
aneurysms.
  As currently interpreted by the Centers for Medicare and Medicaid 
Services, CMS, the ``in the home'' restriction prevents beneficiaries 
from obtaining wheelchairs that are necessary for use outside the home. 
This precludes beneficiaries who need a wheelchair to access work, the 
community at-large, his or her place of worship, school, physician's 
offices, or pharmacies.
  On July 13, 2005, 34 senators wrote Secretary Leavitt asking the 
Department of Health and Human Services, or HHS, to modify the ``in the 
home'' requirement so as to ``improve community access for Medicare 
beneficiaries with mobility impairments.''
  Unfortunately, CMS continues to impose the ``in the home'' 
restriction on Medicare beneficiaries in need of mobility devices. The 
result is that people who may not need a wheelchair to get around their 
house but do need one to get around their communities, such as to a 
job, church, or the grocery store, can't get Medicare to pay for one. 
As the Medicare Rights Center in a report entitled ``Forced Isolation: 
Medicare's `In The home' Coverage Standards for Wheelchairs'' in March 
2004 notes, ``This effectively disqualifies you from leaving your home 
without the assistance of others.''
  Furthermore, in a Kansas City Star article dated July 3, 2005, Mike 
Oxford with the National Council on Independent Living noted, ``You 
look at mobility assistance as a way to liberate yourself.'' He added 
that the restriction ``is just backward.''
  In fact, policies such as these are not only backward but directly 
contradict numerous initiatives aimed at increasing community 
integration of people with disabilities, including the Americans with 
Disabilities Act, the Ticket-to-Work Program, the New Freedom 
Initiative, and the Olmstead Supreme Court decision.
  According to the Medicare Rights Center update dated March 23, 2006, 
``This results in arbitrary denials. People with apartments too small 
for a power wheelchair are denied a device that could also get them 
down the street. Those in more spacious quarters get coverage, allowing 
them to scoot from room to room and to the grocery store. People who 
summon all their willpower and strength to hobble around a small 
apartment get no help for talks that are beyond them and their front 
door.''
  In New Mexico, I have heard this complaint about the law repeatedly 
from our State's most vulnerable disabled and senior citizens. People 
argue the provision is being misinterpreted by the administration and 
results in Medicare beneficiaries being trapped in their home.
  The ITEM Coalition adds in a letter to CMS on this issue in November 
25, 2005, ``There continues to be no clinical basis for the `in the 
home' restriction and by asking treating practioners to document 
medical need only within the home setting, CMS is severely restricting 
patients from receiving the most appropriate devices to meet their 
mobility needs.''
  Therefore, our bipartisan legislation would clarify that this 
restriction does not apply to mobility devices, including wheelchairs, 
for people with disabilities in the Medicare Program. The language 
change is fairly simple and simply clarifies that the ``in the home'' 
restriction for durable medical equipment does not apply in the case of 
mobility devices needed by Medicare beneficiaries with expected long-
term needs for use ``in customary settings such as normal domestic, 
vocational, and community activities.''
  This legislation is certainly not intended to discourage CMS from 
dedicating its resources to reducing waste, fraud, and abuse in the 
Medicare system, as those efforts are critical to ensuring that 
Medicare remains financially viable and strong in the future. However, 
it should be noted that neither Medicaid nor the Department of Veterans 
Affairs impose such ``in the home'' restrictions on mobility devices. 
As Senator Brownback said to the Kansas City Star, it is important to 
lift the restriction ``to reflect our goal of ensuring that Americans 
with disabilities are able to live independent, healthy, and productive 
lives.''
  I thank Senators Santorum, Murray, Collins, Akaka, Jeffords, Kerry, 
Harkin, Kennedy, and Lieberman for cosponsoring this important 
legislation, and attached is a fact sheet that I request to be printed 
in the Record. I would also ask unanimous consent to have printed in 
the Record copies of the letter to the administration and the response 
that was received by Capitol Hill.
  There being no objection, the additional material was ordered to be 
printed in the Record, as follows:

                                                  U.S. Senate,

                                    Washington, DC, July 13, 2005.
     Re reconsideration of the Medicare ``In the Home'' 
         requirement on wheelchair coverage.

     Hon. Michael O. Leavitt,
     Secretary, Department of Health and Human Services, 
         Washington, DC.
       Dear Secretary Leavitt: The undersigned members write to 
     request that you modify the ``in the home'' requirement in 
     Medicare's wheeled mobility benefit to improve community 
     access for Medicare beneficiaries with mobility impairments.
       We commend CMS for its dedication to reducing waste, fraud 
     and abuse in the Medicare system, particularly under the 
     mobility device benefit, and fully support your intention to 
     protect precious Medicare funds and resources. Additionally, 
     we commend the agency for recently taking on the task of 
     creating a new and, hopefully, more appropriate Medicare 
     coverage criteria for mobility devices. However, we are 
     concerned that CMS' current interpretation of the ``in the 
     home'' requirement may continue to act as an inappropriate 
     restriction in meeting the real-life mobility needs of 
     Medicare beneficiaries with physical disabilities and 
     mobility impairments.
       Recently CMS announced a final National Coverage 
     Determination (NCD) for mobility assistance equipment (MAE) 
     that fails to adequately address the concerns of 
     beneficiaries and other parties with the ``in the home'' 
     restriction.
       In order to ensure that the ``in the home'' requirement 
     does not act as a barrier to community participation for 
     Medicare beneficiaries with disabilities and mobility 
     impairments; we ask that you modify this requirement through 
     the regulatory process. Additionally, if your agency 
     concludes that the ``in the home'' requirement cannot be 
     addressed through the regulatory process, we request that you 
     respond with such information as quickly as possible, so that 
     Congress may begin examining legislative alternatives.

[[Page S7632]]

       We thank you for your consideration of this matter.
           Sincerely,
         Jeff Bingaman, Rick Santorum, John Kerry, Joseph I. 
           Lieberman, Barbara Mikulski, Maria Cantwell, Edward M. 
           Kennedy, Patty Murray, Evan Bayh, Mark Dayton, Jack 
           Reed, Johnny Isakson, Sam Brownback, Jon S. Corzine, 
           James M. Talent, Pat Roberts, Frank Lautenberg.
         James M. Jeffords, Christopher S. Bond, Mike DeWine, 
           Daniel K. Akaka, Mary L. Landrieu, Debbie Stabenow, 
           Charles E. Schumer, Ron Wyden, Herb Kohl, Patrick J. 
           Leahy, Arlen Specter, Hillary Rodham Clinton, 
           Christopher J. Dodd, John McCain, Carl Levin, Tom 
           Harkin, Olympia J. Snowe.
                                  ____

                                                  The Secretary of


                                    Health and Human Services,

                                 Washington, DC, October 25, 2005.
     Hon. Charles F. Bass,
     House of Representatives,
     Washington, DC.
       Dear Mr. Bass: Thank you for your letter regarding the ``in 
     the home'' requirement for Mobility Assistive Equipment 
     (MAE).
       The Centers for Medicare & Medicaid Services (CMS) is 
     required to follow section 1861(n) of the Social Security Act 
     (the Act) which states ``the term `durable medical equipment' 
     includes iron lungs, oxygen tents, hospital beds, and 
     wheelchairs (which may include a power-operated vehicle that 
     may be appropriately used as a wheelchair, but only where the 
     use of such a vehicle is determined to be necessary on the 
     basis of the individual's medical and physical condition and 
     the vehicle meets such safety requirements as the Secretary 
     may prescribe) used in the patient's home (including an 
     institution used as his home other than an institution that 
     meets the requirements of subsection (e)(1) of this section 
     or section 1819(a)(1)), whether furnished on a rental basis 
     or purchased. . . .'' CMS further defined the durable medical 
     equipment (DME) benefit category at 42 CFR section 414.202 to 
     include equipment that can (a) withstand repeated use, (b) is 
     primarily and customarily used to serve a medical purpose, 
     (c) is not generally useful in the absence of illness or 
     injury, and (d) is appropriate for use in the home.
       There are two practical requirements that must be satisfied 
     for coverage of DME which are a logical resu1t of the 
     definition of DME:
       (1) The equipment must be appropriate for use in the home. 
     This requirement excludes a gasoline-powered vehicle, for 
     example.
       (2) The patient must have a need to use the equipment in 
     the home. This requirement excludes equipment that is only 
     necessary for use outside the patient's home.
       Therefore, we do not cover equipment if it is exclusively 
     needed outside of the home. However, if DME is needed in the 
     home and the beneficiary also uses it outside the home, the 
     equipment would still be covered. For example, a high 
     strength wheelchair may be covered when appropriate for home 
     use even though it may also be useful outside the home. We do 
     not have any restrictions on the use of the equipment outside 
     of the home as long as there is also a need to use it in the 
     home.
       I hope this information has been helpful. Please call me if 
     you have any further thoughts or questions. I will also 
     provide this response to the cosigners of your letter.
           Sincerely,
     Michael O. Leavitt.

                          ____________________