[Congressional Record Volume 154, Number 43 (Thursday, March 13, 2008)]
[Senate]
[Pages S2138-S2163]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mrs. MURRAY:
S. 2755. A bill to provide funding for summer youth jobs; to the
Committee on Health, Education, Labor, and Pensions.
Mrs. MURRAY. Mr. President, I ask unanimous consent that the text of
the 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. 2755
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 ``Summer Jobs Stimulus Act of
2008''.
SEC. 2. SUMMER YOUTH JOBS.
(a) Findings.--Congress finds that--
(1) a temporary $1,000,000,000 investment in summer
employment for youth, through the summer youth jobs program
supported under this section, will create up to 1,000,000
jobs for economically disadvantaged youth and stimulate local
economies;
(2) research from Northwestern University has shown that
every $1 a youth earns has an accelerator effect of $3 on the
local economy;
(3) there is a serious and growing need for employment
opportunities for economically disadvantaged youth, as
demonstrated by statistics from the Bureau of Labor
Statistics stating that, in December 2007--
(A) the unemployment rate increased to 5 percent, as
compared to 4.4 percent in December 2006;
(B) the unemployment rate for 16- to 19-year-olds rose to
17 percent, as compared to 13 percent in December 2006; and
(C) the unemployment rate for African-American 16- to 19-
year-olds increased 5 percent in 1 month, jumping to 34.7
percent, as compared to 20 percent in December 2006;
(4) summer youth jobs help supplement the income of
families living in poverty;
(5) summer youth jobs provide valuable work experience to
economically disadvantaged youth;
(6) often, the summer jobs provided through the program are
an economically disadvantaged youth's introduction to the
world of work;
(7) according to the Center for Labor Market Studies at
Northeastern University, early work experience is a very
powerful predictor of success and earnings in the labor
market, and early work experiences raises earnings over a
lifetime by 10 to 20 percent;
(8) participation in a summer youth jobs program can
contribute to a reduction in criminal and high-risk behavior
for youth; and
(9)(A) summer youth job programs benefit both youth and
communities when designed around principles that promote
mutually beneficial programs;
(B) youth benefit from summer youth jobs that provide them
with work readiness skills and that help them make the
connection between responsibility on the job and success in
adulthood; and
[[Page S2139]]
(C) communities benefit when youth are engaged productively
during the summer, providing much-needed services that meet
real community needs.
(b) Appropriations.--Out of any money in the Treasury not
otherwise appropriated, and in addition to any funds
appropriated under any provision of Federal law other than
this section, there is appropriated to the Secretary of Labor
for youth activities under the Workforce Investment Act of
1998 (29 U.S.C. 2801 et seq.), $1,000,000,000, which shall be
available for the period of April 1, 2008 through December
31, 2008, under the conditions described in subsection (c).
(c) Conditions.--
(1) Use of funds.--The funds appropriated under subsection
(b) shall be used for summer employment opportunities
referred to in section 129(c)(2)(C) of such Act (29 U.S.C.
2854(c)(2)(C)).
(2) Limitation.--Such funds shall be distributed in
accordance with sections 127 and 128 of such Act (29 U.S.C.
2852, 2853), except that no portion of such funds shall be
reserved to carry out 128(a) or 169 of such Act (29 U.S.C.
2853(a), 2914).
(3) Measure of effectiveness.--The effectiveness of the
activities carried out with such funds shall be measured,
under section 136 of such Act (29 U.S.C. 2871), only with
performance measures based on the core indicators of
performance described in section 136(b)(2)(A)(ii)(I) of such
Act (29 U.S.C. 2871(b)(2)(A)(ii)(I)).
______
By Mr. BIDEN (for himself, Mr. Hatch, and Mr. Specter):
S. 2756. A bill to amend the National Child Protection Act of 1993 to
establish a permanent background check system; to the Committee on
Health, Education, Labor, and Pensions.
Mr. BIDEN. Mr. President, I rise today with my colleagues Senator
Hatch and Senator Specter to introduce the Child Protection
Improvements Act of 2008. This bill will expand and make permanent the
national child safety pilot program that we passed as part of the
PROTECT Act back in 2003. This bill is, in my view, an absolutely
essential step towards developing a comprehensive approach to protect
our Nation's children.
Human service organizations rely on volunteers and employees to
provide services and care to children. These individuals coach soccer
games, mentor young people, run youth camps, and much more.
Approximately 61 million adults currently volunteer--with 27 percent
dedicating their volunteer service to education and youth programs. By
volunteering, they necessarily gain very close, often unsupervised
access to our children. Of course, the vast majority of these people
have the best interest of our children at heart--and we need as many
volunteers as we can get. But, at the same time, we have to understand
that bad people will take any step they can to gain access to children
and many attempt to do this by volunteering.
Congress has previously attempted to ensure that States make FBI
criminal history record checks available to organizations seeking to
screen employees and volunteers who work with children, through the
National Child Protection Act of 1993 and the Volunteers for Children
Act. However, according to a report from the Attorney General, these
laws ``did not have the intended impact of broadening the availability
of checks.'' A 2007 survey conducted by MENTOR/National Mentoring
Partnership found that only 18 States allowed youth mentoring
organizations to access nationwide Federal Bureau of Investigation
background searches. And, even when states do provide access to
background checks, it can be expensive and time consuming.
With the PROTECT Act pilot we decided to give some groups a direct
line towards obtaining a national background check from the FBI and
obtaining a fitness determination by the National Center for Missing
and Exploited Children to see whether the applicant could present a
potential threat to children. Thanks to the hard work and commitment of
NCMEC, the FBI, MENTOR/National Mentoring Partnership, and others this
pilot program has proven incredibly effective. During the course of the
pilot, we conducted roughly 37,000 background checks. Of these checks,
6.1 percent of prospective volunteers were found to have a criminal
record of concern--including very serious offenses like sexual abuse of
minors, assaults, murder, and serious drug offenses. In all, this
represents over 2,200 dangerous people we prevented from working as
volunteers with children. In addition, over 40 percent of the
individuals with criminal records had committed an offense in a state
other than where they were applying to volunteer, meaning that a state-
only search would not have found relevant criminal records. In my view,
this speaks to the urgent need of expanding this pilot to more groups
and towards making the program permanent.
Despite these successes, the pilot was limited in several respects.
The pilot was limited in scope with only a few youth-serving entities
able to participate, and irregularities with respect to the annual
appropriations process made it extremely difficult to operate the
program to its fullest extent. With the legislation, we are introducing
today, we build upon the lessons learned by taking the following steps:
make the program permanent, which will help ensure that long-term
investments are made to make the program effective and inexpensive;
establish an Applicant Processing Center, APC, to assist youth serving
organizations with the administrative tasks related to accessing the
system, such as obtaining a fingerprint and handling billing with the
FBI; and permanently establish and upgrade the fitness determination
process at the National Center for Missing and Exploited Children.
In addition, we authorize the collection of a small surcharge to pay
the FBI fee and offset the expenses incurred by National Center for
Missing and Exploited Children and the Applicant Processing Center.
With literally millions of volunteers working with our Nation's youth
every year, it is imperative to provide a mechanism to allow more
youth-serving organizations access and ensure a steady stream of
resources to allow the program to grow toward the goal of protecting
more children. This bill will do that.
Before closing, I want to touch on fee for service component which is
added to this bill. Of course, the goal has always been that the checks
have to be fast, inexpensive, and accurate for these checks to be
suitable for non-profit organizations. By adding a small surcharge to
the fee the FBI charges, we maintain that goal while expanding access.
The bottom line is this--youth-serving organizations have told us that
the ability to consistently obtain background checks and fitness
determinations is critical and they will pay a little more to have
access. Because Federal resources are simply not sufficient to provide
wide access, and because the ebb and flow of the appropriations process
creates instability with respect to how many checks can be completed,
we felt that a small surcharge was the right approach.
Even with the surcharge, we still keep the cost very low. The bill
calls for a fee no greater than $25 or the actual costs of preparing
the application, running the background check by the FBI, and making
the fitness determination by NCMEC for nonprofits. The applicant
processing center created in this bill will collect this fee and make
sure that all the costs are offset. And the goal is that this fee will
offset all of the costs so that we can grow a system that is available
to a wide range of entities that work with children. As of today, the
American Camp Association, the Afterschool Alliance, the America's
Promise Alliance, Big Brothers Big Sisters of America, Boys and Girls
Clubs of America, Communities In Schools, Inc., First Focus, MENTOR/
National Mentoring Partnership, and YMCA of the USA all agree with this
approach.
In addition, the bill authorizes $5 million in 2009 for startup costs
and to develop new processes and technologies to automate and
streamline the functions to keep costs down. And, while it's not a part
of this legislation, I hope that we can get some of our great
technology companies to help us with this effort by possibly donating
some of their time, expertise, and ingenuity towards helping us
automate the process--especially with the fitness determination process
at the National Center for Missing and Exploited Children which is a
time consuming, labor-intensive process involving the manual review of
criminal rap sheets. We formed a similar public-private partnership
when we established the National Domestic Violence Hotline, and I hope
we will be able to replicate that success here. Once we get this bill
passed, I will be reaching out to some of our best technology companies
to see if they can help us ensure that these checks remain inexpensive
and
[[Page S2140]]
available for as many youth-serving groups as possible.
I would once again like to thank my colleagues Senator Hatch's and
Senator Specter's work on crafting this bill. We proved that we can
help protect children at a low cost with the pilot program, and I
believe that this bill will help expand access to a greater number of
groups so that we can grow that number of protected children
exponentially. To me, this is exactly the kind of service that the
government owes to its people, and I look forward to its prompt passage
before the expiration of the pilot program on July 30th, later this
summer.
Mr. President, I ask unanimous consent that the text of the 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. 2756
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 ``Child Protection
Improvements Act of 2008''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) In 2006, 61,200,000 adults (a total of 26.7 percent of
the population) contributed a total of 8,100,000,000 hours of
volunteer service. Of those who volunteer, 27 percent
dedicate their service to education or youth programs, or a
total of 16,500,000 adults.
(2) Assuming recent incarceration rates remain unchanged,
an estimated 6.6 percent of individuals in the United States
will serve time in prison for a crime during their lifetime.
The Integrated Automated Fingerprint Identification System of
the Federal Bureau of Investigation maintains fingerprints
and criminal histories on more than 47,000,000 individuals,
many of whom have been arrested or convicted multiple times.
(3) A study released in 2002, found that, of individuals
released from prison in 15 States in 1994, an estimated 67.5
percent were rearrested for a felony or serious misdemeanor
within 3 years. Three-quarters of those new arrests resulted
in convictions or a new prison sentence.
(4) Given the large number of individuals with criminal
records and the vulnerability of the population they work
with, human service organizations that work with children
need an effective and reliable means of obtaining a complete
criminal history in order to determine the suitability of a
potential volunteer or employee.
(5) The large majority of Americans (88 percent) favor
granting youth-serving organizations access to conviction
records for screening volunteers and 59 percent favored
allowing youth-serving organizations to consider arrest
records when screening volunteers. This was the only use for
which a majority of those surveyed favored granting access to
arrest records.
(6) Congress has previously attempted to ensure that States
make Federal Bureau of Investigation criminal history record
checks available to organizations seeking to screen employees
and volunteers who work with children, the elderly, and
individuals with disabilities, through the National Child
Protection Act of 1993 (42 U.S.C. 5119 et seq.) and the
Volunteers for Children Act (Public Law 105-251; 112 Stat.
1885). However, according to a June 2006 report from the
Attorney General, these laws ``did not have the intended
impact of broadening the availability of NCPA checks.''. A
2007 survey conducted by MENTOR/National Mentoring
Partnership found that only 18 States allowed youth mentoring
organizations to access nationwide Federal Bureau of
Investigation background searches.
(7) Even when accessible, the cost of a criminal background
check can be prohibitively expensive, ranging from $5 to $75
for a State fingerprint check, plus the Federal Bureau of
Investigation fee, which ranges between $16 to $24, for a
total of between $21 and $99 for each volunteer or employee.
(8) Delays in processing such checks can also limit their
utility. While the Federal Bureau of Investigation processes
all civil fingerprint requests in less than 24 hours, State
response times vary widely, and can take as long as 42 days.
(9) The Child Safety Pilot Program under section 108 of the
PROTECT Act (42 U.S.C. 5119a note) revealed the importance of
performing fingerprint-based Federal Bureau of Investigation
criminal history record checks. Of 29,000 background checks
performed through the pilot as of March 2007, 6.4 percent of
volunteers were found to have a criminal record of concern,
including very serious offenses such as sexual abuse of
minors, assault, child cruelty, murder, and serious drug
offenses.
(10) In an analysis performed on the volunteers screened in
the first 18 months of the Child Safety Pilot Program, it was
found that over 25 percent of the individuals with criminal
records had committed an offense in a State other than the
State in which they were applying to volunteer, meaning that
a State-only search would not have found relevant criminal
results. In addition, even though volunteers knew a
background check was being performed, over 50 percent of the
individuals found to have a criminal record falsely indicated
on their application form that they did not have a criminal
record.
(11) The Child Safety Pilot Program also demonstrates that
timely and affordable background checks are possible, as
background checks under that program are completed within 3
to 5 business days at a cost of $18.
SEC. 3. BACKGROUND CHECKS.
The National Child Protection Act of 1993 (42 U.S.C. 5119
et seq.) is amended--
(1) by redesignating section 5 as section 6; and
(2) by inserting after section 4 the following:
``SEC. 5. PROGRAM FOR NATIONAL CRIMINAL HISTORY BACKGROUND
CHECKS FOR CHILD-SERVING ORGANIZATIONS.
``(a) Definitions.--In this section--
``(1) the term `applicant processing center' means the
applicant processing center established by the Attorney
General under subsection (b)(1);
``(2) the term `child' means an individual who is less than
18 years of age;
``(3) the term `covered entity' means a business or
organization, whether public, private, for-profit, nonprofit,
or voluntary that provides care, care placement, supervision,
treatment, education, training, instruction, or recreation to
children, including a business or organization that licenses,
certifies, or coordinates individuals or organizations to
provide care, care placement, supervision, treatment,
education, training, instruction or recreation to children;
``(4) the term `covered individual' means an individual--
``(A) who has, seeks to have, or may have unsupervised
access to a child served by a covered entity; and
``(B) who--
``(i) is employed by or volunteers with, or seeks to be
employed by or volunteer with, a covered entity; or
``(ii) owns or operates, or seeks to own or operate, a
covered entity;
``(5) the term `fitness determination program' means the
fitness determination program established under subsection
(b)(2);
``(6) the term `identification document' has the meaning
given that term in section 1028 of title 18, United States
Code;
``(7) the term `participating entity' means a covered
entity that is approved under subsection (f) to receive
nationwide background checks from the applicant processing
center and to participate in the fitness determination
program;
``(8) the term `State' means a State of the United States,
the District of Columbia, the Commonwealth of Puerto Rico,
American Samoa, the Virgin Islands, Guam, the Commonwealth of
the Northern Mariana Islands, the Federated States of
Micronesia, the Republic of the Marshall Islands, and the
Republic of Palau; and
``(9) the term `State authorized agency' means a division
or office of a State designated by that State to report,
receive, or disseminate criminal history information.
``(b) Establishment of Program.--Not later than 90 days
after the date of enactment of the Child Protection
Improvements Act of 2008, the Attorney General shall--
``(1) establish within the Federal Government or through an
agreement with a nonprofit entity an applicant processing
center; and
``(2) enter into an agreement with the National Center for
Missing and Exploited Children, under which the National
Center for Missing and Exploited Children shall establish a
fitness determination program.
``(c) Applicant Processing Center.--
``(1) Purpose.--The purpose of the applicant processing
center is to streamline the process of obtaining nationwide
background checks, provide effective customer service, and
facilitate widespread access to nationwide background checks
by participating entities.
``(2) Duties.--The applicant processing center shall--
``(A) provide information to covered entities on the
requirements to become a participating entity;
``(B) provide participating entities with access to
nationwide background checks on covered individuals;
``(C) receive paper and electronic requests for nationwide
background checks on covered individuals from participating
entities;
``(D) serve as a national resource center to provide
guidance and assistance to participating entities on how to
submit requests for nationwide background checks, how to
interpret criminal history records, how to obtain State
criminal background checks, and other related information;
``(E) to the extent practicable, negotiate an agreement
with each State authorized agency under which--
``(i) that State authorized agency shall conduct a State
criminal background check within the time periods specified
in subsection (e) in response to a request from the applicant
processing center and provide criminal history records to the
National Center for Missing and Exploited Children; and
``(ii) a participating entity may elect to obtain a State
background check, in addition to a nationwide background
check, through 1 unified request to the applicant processing
center;
``(F) convert all paper fingerprint cards into an
electronic form and securely transmit all fingerprints
electronically to the national criminal history background
check
[[Page S2141]]
system and, if appropriate, the State authorized agencies;
``(G) collect a fee to conduct the nationwide background
check, and, if appropriate, a State criminal background
check, and remit fees to the National Center for Missing and
Exploited Children, the Federal Bureau of Investigation, and
the State authorized agencies, as appropriate;
``(H) convey the results of the fitness determination to
the participating entity that submitted the request for a
nationwide background check; and
``(I) coordinate with the Federal Bureau of Investigation,
participating State authorized agencies, and the National
Center for Missing and Exploited Children to ensure that
background check requests are being completed within the time
periods specified in subsection (e).
``(3) Requests.--A request for a nationwide background
check by a participating entity shall include--
``(A) the fingerprints of the covered individual, in paper
or electronic form;
``(B) a photocopy of a valid identification document; and
``(C) a statement completed and signed by the covered
individual that--
``(i) sets out the covered individual's name, address, and
date of birth, as those items of information appear on a
valid identification document;
``(ii) states whether the covered individual has a criminal
record, and, if so, provides the particulars of such criminal
record;
``(iii) notifies the covered individual that the Attorney
General and, if appropriate, a State authorized agency may
perform a criminal history background check and that the
signature of the covered individual on the statement
constitutes an acknowledgment that such a check may be
conducted;
``(iv) notifies the covered individual that prior to and
after the completion of the background check, the
participating entity may choose to deny the covered
individual access to children; and
``(v) notifies the covered individual of the right of the
covered individual to correct an erroneous record of the
Attorney General and, if appropriate, the State authorized
agency.
``(4) Fees.--
``(A) In general.--The applicant processing center may
collect a fee to defray the costs of carrying out its duties
and the duties of National Center for Missing and Exploited
Children under this section--
``(i) for a nationwide background check and fitness
determination, in an amount not to exceed the lesser of--
``(I) the actual cost to the applicant processing center
and the National Center for Missing and Exploited Children of
conducting a nationwide background check and fitness
determination under this section; or
``(II)(aa) $25 for a participating entity that is a
nonprofit entity; or
``(bb) $40 for any other participating entity; and
``(ii) for a State criminal background check described in
paragraph (2)(E), in the amount specified in the agreement
with the applicable State authorized agency, not to exceed
$18.
``(B) Reduced fees.--In determining the amount of the fees
to be collected under subparagraph (A), the applicant
processing center--
``(i) shall, to the extent possible, discount such fees for
participating entities that are nonprofit entities; and
``(ii) may use fees paid by participating entities that are
not nonprofit entities to reduce the fees to be paid by
participating entities that are nonprofit entities.
``(C) Prohibition on fees.--
``(i) In general.--A participating entity may not charge
another entity or individual a surcharge to access a
background check conducted under this section.
``(ii) Violation.--The Attorney General shall bar any
participating entity that the Attorney General determines
violated clause (i) from submitting background checks under
this section.
``(d) Fitness Determination Program.--
``(1) Purpose.--The purpose of the fitness determination
program is to provide participating entities with reliable
and accurate information regarding whether a covered
individual has been convicted of, or is under pending arrest
or indictment for, a crime that bears upon the fitness of the
covered individual to have responsibility for the safety and
well-being of the children in their care.
``(2) Requirements of fitness determination program.--As
part of operating the fitness determination program, the
National Center for Missing and Exploited Children shall--
``(A) establish procedures to securely receive criminal
background records from the Federal Bureau of Investigation
and, if appropriate, State authorized agencies;
``(B) make determinations regarding whether the criminal
history record information received in response to a criminal
history background check conducted under this section
indicate that the covered individual has a criminal history
record that may render the covered individual unfit to
provide care to children, based on the criteria described in
paragraph (3);
``(C) convey a fitness determination to the applicant
processing center;
``(D) specify the source of the criminal history
information upon which a fitness determination is based; and
``(E) work with the applicant processing center and the
Federal Bureau of Investigation to develop procedures and
processes to ensure that criminal history background check
requests are being completed within the time periods
specified in subsection (e).
``(3) Criteria.--
``(A) In general.--Subject to subparagraph (B), the fitness
determination program shall use the criteria relating to when
criminal history record information indicates that an
individual has a criminal history record that may render the
individual unfit to provide care to children that were
established for the Child Safety Pilot Program under section
108(a)(3) of the PROTECT Act (42 U.S.C. 5119a note).
``(B) Review.--The Attorney General and the National Center
for Missing and Exploited Children, in coordination with
national organizations representing a range of covered
entities, shall review the criteria described in subparagraph
(A) and make any changes needed to use such criteria in the
fitness determination program.
``(e) Timing.--
``(1) In general.--Criminal background checks shall be
completed not later than 10 business days after the date that
a request for a national background check is received by the
applicant processing center. The applicant processing center
shall work with the National Center for Missing and Exploited
Children and the Federal Bureau of Investigation to ensure
that the time limits under this subsection are being
achieved.
``(2) Application processing.--The applicant processing
center shall electronically submit a national background
check request to the national criminal history background
check system and, if appropriate, the participating State
authorized agency not later than 3 business days after the
date that a request for a national background check is
received by the applicant processing center.
``(3) Conduct of background checks.--The Federal Bureau of
Investigation and, if appropriate, a State authorized agency
shall provide criminal history records information to the
National Center for Missing and Exploited Children not later
than 3 business days after the date that the Federal Bureau
of Investigation or State authorized agency, as the case may
be, receives a request for a nationwide background check from
the applicant processing center.
``(4) Fitness determinations.--The National Center for
Missing and Exploited Children shall convey a fitness
determination to a participating entity and the applicant
processing center not later than 4 business days after the
date that the National Center for Missing and Exploited
Children has received criminal history records from the
Federal Bureau of Investigation and, if appropriate, each
applicable State authorized agency.
``(f) Participation in Program.--
``(1) In general.--The applicant processing center shall
determine whether an entity is a covered entity and whether
that covered entity should be approved as a participating
entity, based on the consultation conducted under paragraph
(2).
``(2) Consultation.--In determining how many covered
entities to approve as participating entities, the applicant
processing center shall consult quarterly with the Federal
Bureau of Investigation and the National Center for Missing
and Exploited Children to determine the volume of requests
for fitness determinations that can be completed, based on
the capacity of the applicant processing center and the
fitness determination program, the availability of resources,
and the demonstrated need for such determinations in order to
protect children.
``(3) Preference for nonprofit organizations.--In
determining whether a covered entity should be approved as a
participating entity under paragraph (1), the applicant
processing center shall give preference to any organization
participating in the Child Safety Pilot Program under section
108(a)(3) of the PROTECT Act (42 U.S.C. 5119a note) on the
date of enactment of the Child Protection Improvements Act of
2008 and to any other nonprofit organizations.
``(g) Rights of Covered Individuals.--
``(1) In general.--A covered individual who is the subject
of a nationwide background check under this section may
contact the Federal Bureau of Investigation and, if
appropriate, a State authorized agency to--
``(A) request that the full criminal history report of that
covered individual be provided to that covered individual or
the applicable participating entity not later than 10
business days after the date of that request; and
``(B) challenge the accuracy and completeness of the
criminal history record information in the criminal history
report.
``(2) Resolution of challenges.--The Federal Bureau of
Investigation and, if appropriate, a State authorized agency
shall promptly make a determination regarding the accuracy
and completeness of any criminal history record information
challenged under paragraph (1)(B).
``(h) Authorization of Appropriations.--
``(1) In general.--There are authorized to be appropriated
to the Attorney General $5,000,000 for fiscal year 2008, to--
``(A) establish and carry out the duties of the applicant
processing center established under this section;
``(B) establish and carry out the fitness determination
program; and
``(C) purse technologies and procedures to streamline and
automate processes to enhance cost efficiency.
[[Page S2142]]
``(2) Fitness determinations.--There are authorized to be
appropriated to the Attorney General to carry out the
agreement under this section with the National Center for
Missing and Exploited Children $1,000,000 for each of fiscal
years 2009 through 2013 to support the fitness determination
program and so that fees for nonprofit organizations under
that program are as low as possible.
``(3) Sense of the senate.--It is the sense of the Senate
that in fiscal year 2009, and each fiscal year thereafter,
the fees collected by the applicant processing center should
be sufficient to carry out the duties of the applicant
processing center under this section and to help support the
fitness determination program.
``(i) Report to Congress.--The Attorney General shall, on
an annual basis, submit to Congress a report on the
participating entities, the number of covered individuals
submitting applications under this section, and the data on
the number and types of fitness determinations issued under
this section.
``(j) Limitation on Liability.--
``(1) In general.--A participating entity shall not be
liable in an action for damages solely for failure to conduct
a criminal background check on a covered individual, nor
shall a State or political subdivision thereof nor any
agency, officer, or employee thereof, be liable in an action
for damages for the failure of a participating entity (other
than itself) to take action adverse to a covered individual
who was the subject of a background check.
``(2) Reliance.--The applicant processing center or a
participating entity that reasonably relies on a fitness
determination or criminal history record information received
in response to a background check under this section shall
not be liable in an action for damages based on the
inaccuracy or incompleteness of that information.
``(3) National center for missing and exploited children.--
``(A) In general.--Except as provided in subparagraphs (B)
and (C), the National Center for Missing and Exploited
Children, including a director, officer, employee, or agent
of the National Center for Missing and Exploited Children,
shall not be liable in an action for damages relating to the
performance of the responsibilities and functions of the
National Center for Missing and Exploited Children under this
section.
``(B) Intentional, reckless, or other misconduct.--
Subparagraph (A) shall not apply in an action if the National
Center for Missing and Exploited Children, or a director,
officer, employee, or agent of the National Center for
Missing and Exploited Children, engaged in intentional
misconduct or acted, or failed to act, with actual malice,
with reckless disregard to a substantial risk of causing
injury without legal justification, or for a purpose
unrelated to the performance of responsibilities or functions
under this section.
``(C) Ordinary business activities.--Subparagraph (A) shall
not apply to an act or omission relating to an ordinary
business activity, such as an activity involving general
administration or operations, the use of motor vehicles, or
personnel management.''.
SEC. 4. EXTENSION OF CHILD SAFETY PILOT.
Section 108(a)(3)(A) of the PROTECT Act (42 U.S.C. 5119a
note) is amended--
(1) by striking ``60-month''; and
(2) by adding at the end the following: ``The Child Safety
Pilot Program under this paragraph shall terminate on the
date that the program for national criminal history
background checks for child-serving organizations established
under the Child Protection Improvements Act of 2008 is
operating and able to enroll any organization using the Child
Safety Pilot Program.''.
______
By Mr. DODD (for himself, Mr. Lieberman, Mr. Durbin, and Mr.
Kerry):
S. 2759. A bill to provide for Kindergarten Plus programs; to the
Committee on Health, Education, Labor, and Pensions.
Mr. DODD. Mr. President, I rise today to introduce legislation to
enhance opportunities for low-income children entering school. Today, I
am introducing the Sandy Feldman Kindergarten Plus Act of 2008.
The Kindergarten Plus Act will provide children below 185 percent of
the poverty line with additional time in school during the summer
before, and the summer after, their traditional kindergarten school
year to ensure that they enter school ready to succeed.
Too many low-income children enter school unprepared because they
have not had access to educational resources such as books and other
tools for learning. Arriving at school already behind, many of these
children find it difficult, if not impossible, to catch up academically
to their more affluent peers.
When we consider the achievement gap between low-income children and
their wealthier peers, it immediately becomes clear that we must do a
better job of preparing these children for school. To prepare them for
success, we need to expose them to classroom practices earlier,
introduce them to critical educational concepts, and familiarize them
with school activities such as story or circle time. Ultimately, we
need to provide these students with a solid foundation that allows them
to enter school with the skills necessary to become strong students.
Only 39 percent of low-income children, compared to about 85 percent
of high-income children, can recognize letters of the alphabet upon
arrival in kindergarten. Moreover, low-income children often have a
more limited vocabulary. By the time they are in first grade, children
in low-income families have, on average, 5,000 words in their
vocabulary. In contrast, children from more affluent families enter
school with vocabularies of about 20,000 words. These startling
discrepancies should tell us that more needs to be done to help all
children enter school with an equal opportunity for success.
Kindergarten Plus strives to provide these opportunities and to lessen
the achievement gap by providing low-income children more support and
additional exposure to high-quality schooling.
This legislation was named after Sandy Feldman. As many of you know,
Sandy was a tireless advocate for children and public education. Her
commitment to social justice and her focus on early childhood education
led her to develop the concept for this legislation, and it was Sandy
who spent countless hours developing the details to ensure this would
be a high-quality initiative. I was honored to have worked with Sandy
in developing the initial legislation and am proud that this bill bears
her name.
I am joined today in introducing this legislation by my colleagues
Senators Lieberman and Durbin. This bill is supported by the American
Federation of Teachers, National Education Association, Council of
Great City Schools, the Children's Defense Fund, Service Employees
International Union, American Federation of State, County and Municipal
Employees, National Association of Child Care Resource and Referral
Agencies, and Easter Seals. I urge my colleagues to join my effort and
cosponsor this legislation. I encourage them to help launch low-income
children on the path to school success.
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. 2759
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 ``Kindergarten Plus Act of
2008''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Kindergarten has proven to be a beneficial experience
for children, putting children on a path that positively
influences their learning and development in later school
years.
(2) Kindergarten and the years leading up to kindergarten
are critical in preparing children to succeed in elementary
school, especially if the children are from low-income
families or have other risks of difficulty in school.
(3) Disadvantaged children, on average, lag behind other
children in literacy, numeracy, and social skills, even
before formal schooling begins.
(4) For many children entering kindergarten, the
achievement gap between children from low-income households
compared to children from high-income households is already
evident.
(5) Eighty-five percent of beginning kindergartners in the
highest socioeconomic group, compared to 39 percent in the
lowest socioeconomic group, can recognize letters of the
alphabet. Similarly, 98 percent of beginning kindergartners
in the highest socioeconomic group, compared to 84 percent of
their peers in the lowest socioeconomic group, can recognize
numbers and shapes.
(6) Once disadvantaged children are in school, they learn
at the same rate as other children. Therefore, providing
disadvantaged children with additional time in kindergarten,
in the summer before such children ordinarily enter
kindergarten and in the summer before first grade, will help
schools close achievement gaps and accelerate the academic
progress of their disadvantaged students.
(7) High quality, extended-year kindergarten that provides
children with enriched learning experiences is an important
factor in helping to close achievement gaps, rather than
having the gaps continue to widen.
SEC. 3. DEFINITIONS.
In this Act:
(1) Eligible student.--The term ``eligible student'' means
a child who--
(A) is a 5-year old, or will be eligible to attend
kindergarten at the beginning of the next school year;
(B) comes from a family with an income at or below 185
percent of the poverty line; and
[[Page S2143]]
(C) is not already served by a high-quality program in the
summer before or the summer after the child enters
kindergarten.
(2) Kindergarten plus.--The term ``Kindergarten Plus''
means a voluntary full day of kindergarten, during the summer
before and during the summer after, the traditional
kindergarten school year (as determined by the State).
(3) Local educational agency.--The term ``local educational
agency'' has the meaning given the term in section 9101 of
the Elementary and Secondary Education Act of 1965 (20 U.S.C.
7801).
(4) Parent.--The term ``parent'' includes a legal guardian
or other person standing in loco parentis (such as a
grandparent or stepparent with whom the child lives, or a
person who is legally responsible for the child's welfare).
(5) Parental involvement.--The term ``parental
involvement'' means the participation of parents in regular,
2-way, and meaningful communication with school personnel
involving student academic learning and other school
activities, including ensuring that parents--
(A) play an integral role in assisting their child's
learning;
(B) are encouraged to be actively involved in their child's
education at school; and
(C) are full partners in their child's education and are
included, as appropriate, in decisionmaking and on advisory
committees to assist in the education of their child.
(6) Poverty line.--The term ``poverty line'' means the
poverty line (as defined by the Office of Management and
Budget, and revised annually in accordance with section
673(2) of the Community Services Block Grant Act (42 U.S.C.
9902(2))) applicable to a family of the size involved.
(7) Eligible provider.--The term ``eligible provider''
means a local educational agency or a private not-for-profit
agency or organization, with a demonstrated record in the
delivery of early childhood education services to preschool-
age children, that provides high-quality early learning and
development experiences that--
(A) are aligned with the expectations for what children
should know and be able to do when the children enter
kindergarten and grade 1, as established by the State
educational agency; or
(B) in the case of an entity that is not a local
educational agency and that serves children who have not
entered kindergarten, meet the performance standards and
performance measures described in subparagraphs (A) and (B)
of subsection (a)(1), and subsection (b), of section 641A of
the Head Start Act (42 U.S.C. 9836a) or the prekindergarten
standards of the State where the entity is located.
(8) School readiness.--The term ``school readiness'' means
the cognitive, social, emotional, approaches to learning, and
physical development of a child, including early literacy and
early mathematics skills, that prepares the child to learn
and succeed in elementary school.
(9) Secretary.--The term ``Secretary'' means the Secretary
of Education.
(10) State educational agency.--The term ``State
educational agency'' has the meaning given the term in
section 9101 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7801).
SEC. 4. GRANTS TO STATE EDUCATIONAL AGENCIES AUTHORIZED.
(a) In General.--The Secretary is authorized to award
grants, on a competitive basis, to State educational agencies
to enable the State educational agencies to provide
Kindergarten Plus within the State.
(b) Sufficient Size.--To the extent possible, the Secretary
shall ensure that each grant awarded under this section is of
sufficient size to enable the State educational agency
receiving the grant to provide Kindergarten Plus to all
eligible students served by the local educational agencies
within the State with the highest concentrations of eligible
students.
(c) Minimum Amount.--The Secretary shall not award a grant
to a State educational agency under this section in an amount
that is less than $500,000.
(d) State Use of Funds.--A State educational agency shall
use--
(1) not more than 3 percent of the grant funds received
under this Act for administration of the Kindergarten Plus
programs supported under this Act;
(2) not more than 5 percent of the grant funds received
under this Act to develop professional development activities
and curricula for teachers and staff of Kindergarten Plus
programs in order to develop a continuum of developmentally
appropriate curricula and practices for preschool,
kindergarten, and grade 1 that ensures--
(A) an effective transition to kindergarten and to grade 1
for students; and
(B) appropriate expectations for the students' learning and
development as the students make the transition to
kindergarten and to grade 1; and
(3) the remainder of the grant funds to award subgrants to
local educational agencies.
(e) Priority.--In awarding grants under this Act the
Secretary shall give priority to State educational agencies
that--
(1) on their own or in combination with other government
agencies, provide full-day kindergarten to all kindergarten-
age children who are from families with incomes below 185
percent of the poverty line within the State; or
(2) demonstrate progress toward providing full-day
kindergarten to all kindergarten-age children who are from
families with incomes below 185 percent of the poverty line
within the State by submitting a plan that shows how the
State educational agency will, at a minimum, double the
number of such children that were served by a full-day
kindergarten program in the school year preceding the school
year for which assistance is first sought.
SEC. 5. SUBGRANTS TO LOCAL EDUCATIONAL AGENCIES.
(a) In General.--Each State educational agency that
receives a grant under this Act--
(1) shall reserve an amount sufficient to continue to fund
multiyear subgrants awarded under this section; and
(2) shall award subgrants to local educational agencies
within the State to enable the local educational agencies to
pay the Federal share of the costs of carrying out
Kindergarten Plus programs for eligible students.
(b) Priority.--In awarding subgrants under this section the
State educational agency shall give priority to local
educational agencies--
(1) serving the greatest number or percentage of
kindergarten-age children who are from families with incomes
below 185 percent of the poverty line, based on data from the
most recent school year; and
(2) that propose to significantly reduce the class size and
student-to-teacher ratio of the classes in their Kindergarten
Plus programs below the average class size and student-to-
teacher ratios of kindergarten classes served by the local
educational agencies.
(c) Federal Share.--The Federal share of the costs of
carrying out a Kindergarten Plus program shall be--
(1) 100 percent for the first, second, and third years of
the program;
(2) 85 percent for the fourth year of the program; and
(3) 75 percent for the fifth year of the program.
(d) In-Kind Contributions.--The non-Federal share of the
costs of carrying out a Kindergarten Plus program may be in
the form of in-kind contributions.
SEC. 6. STATE APPLICATION.
(a) In General.--In order to receive a grant under this
Act, a State educational agency shall submit an application
to the Secretary at such time and containing such information
as the Secretary determines appropriate.
(b) Consultation.--The application shall be developed by
the State educational agency in consultation with
representatives of early childhood education programs, early
childhood education teachers, principals, pupil services
personnel, administrators, paraprofessionals, other school
staff, early childhood education providers (including Head
Start agencies, State prekindergarten program staff, and
child care providers), teacher organizations, parents, and
parent organizations.
(c) Contents.--At a minimum, the application shall
include--
(1) a description of developmentally appropriate teaching
practices and curricula for children that will be put in
place to be used by local educational agencies and eligible
providers offering Kindergarten Plus programs to carry out
this Act;
(2) a general description of the nature of the Kindergarten
Plus programs to be conducted with funds received under this
Act, including--
(A) the number of hours each day and the number of days
each week that children in each Kindergarten Plus program
will attend the program; and
(B) if a Kindergarten Plus program meets for less than 9
hours a day, how the needs of full-time working families will
be addressed;
(3) goals and objectives to ensure that high-quality
Kindergarten Plus programs are provided;
(4) an assurance that students enrolled in Kindergarten
Plus programs funded under this Act will receive additional
comprehensive services (such as nutritional services, health
care, and mental health care), as needed; and
(5) a description of how--
(A) the State educational agency will coordinate and
integrate services provided under this Act with other
educational programs, such as Even Start, Head Start, Reading
First, Early Reading First, State-funded preschool programs,
preschool programs funded under section 619 or other
provisions of part B of the Individuals with Disabilities
Education Act (20 U.S.C. 1419, 1411 et seq.), and
kindergarten programs;
(B) the State will provide professional development for
teachers and staff of local educational agencies and eligible
providers that receive subgrants under this Act regarding how
to address the school readiness needs of children (including
early literacy, early mathematics, and positive behavior)
before the children enter kindergarten, throughout the school
year, and into the summer after kindergarten;
(C) the State will assist Kindergarten Plus programs to
provide exemplary parent education and parental involvement
activities such as training and materials to assist parents
in being their children's first teachers at home or home
visiting;
(D) the State will conduct outreach to parents with
eligible students, including parents whose native language is
not English, parents of children with disabilities, and
parents of migratory children; and
[[Page S2144]]
(E) the State educational agency will ensure that each
Kindergarten Plus program uses developmentally appropriate
practices, including practices and materials that are
culturally and linguistically appropriate for the population
of children being served in the program.
SEC. 7. LOCAL APPLICATION.
(a) In General.--In order to receive a subgrant under this
Act, a local educational agency shall submit an application
to the State educational agency at such time and containing
such information as the State educational agency determines
appropriate.
(b) Consultation.--The application shall be developed by
the local educational agency in consultation with early
childhood education teachers, principals, pupil services
personnel, administrators, paraprofessionals, other school
staff, early childhood education providers (including Head
Start agencies, State prekindergarten program staff, and
child care providers), teacher organizations, parents, and
parent organizations.
(c) Contents.--At a minimum, the application shall include
a description of--
(1) the standards, research-based and developmentally
appropriate curricula, teaching practices, and ongoing
assessments for the purposes of improving instruction and
services, to be used by the local educational agency that--
(A) are aligned with the State expectations for what
children should know and be able to do when the children
enter kindergarten and grade 1, as set by the State
educational agency; and
(B) include--
(i) language skills, including an expanded use of
vocabulary;
(ii) interest in and appreciation of books, reading,
writing alone or with others, and phonological and phonemic
awareness;
(iii) premathematics knowledge and skills, including
aspects of classification, seriation, number sense, spatial
relations, and time;
(iv) other cognitive abilities related to academic
achievement;
(v) social and emotional development, including self-
regulation skills;
(vi) physical development, including gross and fine motor
development skills;
(vii) in the case of limited English proficiency, progress
toward the acquisition of the English language; and
(viii) approaches to learning;
(2) how the local educational agency will ensure that the
Kindergarten Plus program uses curricula and practices that--
(A) are developmentally, culturally, and linguistically
appropriate for the population of children served in the
program; and
(B) are aligned with the State learning standards and
expectations for children in kindergarten and grade 1;
(3) how the Kindergarten Plus program will improve the
school readiness of children served by the local educational
agency under this Act, especially in mathematics and reading;
(4) how the Kindergarten Plus program will provide
continuity of services and learning for children who were
previously served by a different program;
(5) how the local educational agency will ensure that the
Kindergarten Plus program has appropriate services and
accommodations in place to serve children with disabilities
and children who are limited English proficient;
(6) how the local educational agency will perform a needs
assessment to avoid duplication with other programs within
the geographic area served by the local educational agency;
(7) how the local educational agency will--
(A) transition Kindergarten Plus participants into local
elementary school programs and services;
(B) ensure the development and use of systematic,
coordinated records on the educational development of each
child participating in the Kindergarten Plus program through
periodic meetings and communications among--
(i) Kindergarten Plus program teachers;
(ii) elementary school staff; and
(iii) local early childhood education program providers,
including Head Start agencies, State prekindergarten program
staff, and center-based and family child care providers;
(C) provide parent and child orientation sessions conducted
by teachers and staff; and
(D) provide a qualified staff person to be in charge of
coordinating the transition services;
(8) how the local educational agency will provide
instructional and environmental accommodations in the
Kindergarten Plus program for children who are limited
English proficient, children with disabilities, migratory
children, neglected or delinquent youth, Indian children
served under part A of title VII of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7401 et seq.),
homeless children, and immigrant children;
(9) how the local educational agency will conduct outreach
to parents of eligible students, including parents whose
native language is not English, parents of children with
disabilities, and parents of migratory children, which may
include--
(A) activities to provide parents early exposure to the
school environment, including meetings with teachers and
staff;
(B) activities to better engage and inform parents on the
benefits of Kindergarten Plus and other programs; and
(C) other efforts to ensure that parents have a level of
comfort with the Kindergarten Plus program and the school
environment;
(10) how the local educational agency will assist the
Kindergarten Plus program to provide exemplary parent
education and parental involvement activities such as
training and materials to assist parents in being their
children's first teachers at home or home visiting; and
(11) how the local educational agency will work with local
center-based and family child care providers and Head Start
agencies to ensure--
(A) the nonduplication of programs and services; and
(B) that the needs of working families are met through
child care provided before and after the Kindergarten Plus
program.
SEC. 8. LOCAL REQUIREMENTS AND PROVISIONS.
(a) Local Uses of Funds.--A local educational agency that
receives a subgrant under this Act shall use the subgrant
funds for the following:
(1) The operational and program costs associated with the
Kindergarten Plus program as described in the application to
the State educational agency.
(2) Personnel services, including teachers,
paraprofessionals, and other staff as needed.
(3) Additional services, as needed, including snacks and
meals, mental health care, health care, linguistic
assistance, special education and related services, and
transportation services associated with the needs of the
children in the program.
(4) Transition services to ensure children make a smooth
transition into first grade and proper communication is made
with the elementary school on the educational development of
each child.
(5) Outreach and recruitment activities, including
community forums and public service announcements in local
media in various languages if necessary to ensure that all
individuals in the community are aware of the availability of
such program.
(6) Parental involvement programs, including materials and
resources to help parents become more involved in their
child's learning at home.
(7) Extended day services for the eligible students of
working families, including working with existing programs in
the community to coordinate services if possible.
(8) Child care services, provided through coordination with
local center-based child care and family child care
providers, and Head Start agencies, before and after the
Kindergarten Plus program for the children participating in
the program, to accommodate the schedules of working
families.
(9) Enrichment activities, such as--
(A) art, music, and other creative arts;
(B) outings and field trips; and
(C) other experiences that support children's curiosity,
motivation to learn, knowledge, and skills.
(b) Eligible Provider Grants and Applications.--The local
educational agency may use subgrant funds received under this
Act to award a grant to an eligible provider to enable the
eligible provider to carry out a Kindergarten Plus program
for the local educational agency. Each eligible provider
desiring a grant under this subsection shall submit an
application to the local educational agency that contains the
descriptions set forth in section 7 as applied to the
eligible provider.
(c) Continuity.--In carrying out a Kindergarten Plus
program under this Act, a local educational agency is
encouraged to explore ways to develop continuity in the
education of children, for instance by keeping, if possible,
the same teachers and personnel from the summer before
kindergarten, through the kindergarten year, and during the
summer after kindergarten.
(d) Coordination.--In carrying out a Kindergarten Plus
program under this Act, a local educational agency shall
coordinate with existing programs in the community to provide
extended care and comprehensive services for children and
their families in need of such care or services.
SEC. 9. TEACHER AND PERSONNEL QUALITY STANDARDS.
To be eligible for a subgrant under this Act, each local
educational agency shall ensure that--
(1) each Kindergarten Plus classroom has--
(A) a highly qualified teacher, as defined in section 9101
of the Elementary and Secondary Education Act of 1965 (20
U.S.C. 7801); or
(B) if an eligible provider who is not a local educational
agency is providing the Kindergarten Plus program in
accordance with section 8(b), a teacher that, at a minimum,
has a bachelor's degree in early childhood education or a
related field and experience in teaching children of this
age;
(2) a qualified paraprofessional that meets the
requirements for paraprofessionals under section 1119 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
6319), is in each Kindergarten Plus classroom;
(3) Kindergarten Plus teachers and paraprofessionals are
compensated on a salary scale comparable to kindergarten
through grade 3 teachers and paraprofessionals in public
schools served by the local educational agency; and
(4) Kindergarten Plus class sizes do not exceed the class
size and ratio parameters set at the State or local level for
the traditional kindergarten program.
SEC. 10. DIRECT GRANTS TO LOCAL EDUCATIONAL AGENCIES.
(a) Grants Authorized.--If a State educational agency does
not apply for a grant
[[Page S2145]]
under this Act or does not have an application approved under
section 6, then the Secretary is authorized to award a grant
to a local educational agency within the State to enable the
local educational agency to pay the Federal share of the
costs of carrying out a Kindergarten Plus program.
(b) Eligibility.--A local educational agency shall be
eligible to receive a grant under this section if the local
educational agency operates a full-day kindergarten program
that, at a minimum, is targeted to kindergarten-age children
who are from families with incomes below 185 percent of the
poverty line within the State.
(c) Application.--In order to receive a grant under
subsection (a), a local educational agency shall submit to
the Secretary an application that--
(1) contains the descriptions set forth in section 7; and
(2) includes an assurance that the Kindergarten Plus
program funded under such grant will serve eligible students.
(d) Applicability.--Sections 8 and 9 shall apply to a local
educational agency receiving a grant under this section in
the same manner as the sections apply to a local educational
agency receiving a subgrant under section 5(a).
SEC. 11. EVALUATION, COLLECTION, AND DISSEMINATION OF
INFORMATION.
(a) In General.--Each State educational agency that
receives a grant under this Act, in cooperation with the
local educational agencies in the State that receive a
subgrant under this Act, shall create an evaluation mechanism
to determine the effectiveness of the Kindergarten Plus
programs in the State, taking into account--
(1) information from the local needs assessment, conducted
in accordance with section 7(c)(6), including--
(A) the number of eligible students in the geographic area;
(B) the number of children served by Kindergarten Plus
programs, disaggregated by family income, race, ethnicity,
native language, and prior enrollment in an early childhood
education program; and
(C) the number of children with disabilities served by
Kindergarten Plus programs;
(2) the recruitment of teachers and staff for Kindergarten
Plus programs, and the retention of such personnel in the
programs for more than 1 year;
(3) the provision of services for children and families
served by Kindergarten Plus programs, including parent
education, home visits, and comprehensive services for
families who need such services;
(4) the opportunities for professional development for
teachers and staff; and
(5) the curricula used in Kindergarten Plus programs.
(b) Comparison.--The evaluation process may include
comparison groups of similar children who do not participate
in a Kindergarten Plus program.
(c) Information Collection and Reporting.--The information
necessary for the evaluation shall be collected yearly by the
State and reported every 2 years by the State to the
Secretary.
(d) Analysis of Effectiveness.--The Secretary shall conduct
an analysis of the overall effectiveness of the programs
assisted under this Act and make the analysis available to
Congress, and the public, biannually.
SEC. 12. SUPPLEMENT NOT SUPPLANT.
Funds made available under this Act shall be used to
supplement, not supplant, other Federal, State, or local
funds available to carry out activities under this Act.
SEC. 13. AUTHORIZATION OF APPROPRIATIONS.
For the purpose of carrying out this Act, there are
authorized to be appropriated $1,500,000,000 for fiscal year
2009 and such sums as may be necessary for each of the fiscal
years 2010 through 2014.
______
By Mr. LEAHY (for himself and Mr. Bond):
S. 2760. A bill to amend title 10, United States Code, to enhance the
national defense through empowerment of the National Guard, enhancement
of the functions of the National Guard Bureau, and improvement of
Federal-State military coordination in domestic emergency response, and
for other purposes; to the Committee on Armed Services.
Mr. LEAHY. Mr. President, today I am pleased again to join my friend
and colleague Senator Kit Bond of Missouri in bringing to the Senate
another matter of importance to the missions of the National Guard and
to the dedicated men and women of the Guard who perform these missions.
Today we are introducing the National Guard Empowerment and State-
National Defense Integration Act of 2008. We introduce this legislation
on behalf of the 91-member U.S. Senate National Guard Caucus, which we
co-chair. The military is still not structured properly to respond to
the domestic emergencies that we know will come again. This legislation
would take us tangible steps forward in correcting that. Our bill would
sharpen the Defense Department's focus on helping the National Guard
respond to domestic emergencies.
This legislation is a new phase in our bipartisan and bicameral drive
to empower the Guard for successfully meeting the challenges that our
States and the Nation are asking the Guard to meet. It would clear away
bureaucratic cobwebs in the Defense Department's organizational
structure to improve decision making on homeland defense issues that
involve the Guard. This bill builds on some of the strong provisions
enacted from the previous version of the Guard Empowerment Bill in the
recently enacted fiscal year 2008 Defense Authorization Bill. By
empowering the National Guard through more responsibilities,
authorities, and new lines of control, this bill focuses the Defense
Department's attention on this critical realm of domestic defense. The
bill structures potential military operations within the U.S. in a way
outlined by the Constitution, ensuring local and State control--not
Federal control--in these emergencies.
We know that the military--the active duty force, the National Guard,
and the Reserves--has an important role in responding to emergencies at
home, events like natural disasters. The events of Hurricane Katrina
and so many other situations have amply underscored that reality. Our
civilian authorities will continue to want to tap into the resources,
personnel, and expertise, and there is no question that we need a
system that permits that. The debate taking place, mostly behind the
scenes and within the walls of the Pentagon, has been about how we
structure that response. The goal must be an effective response in line
with the Constitution. Our national charter protects our basic
liberties and places sovereignty in the hands of the people through
government with adequate checks and balances, splitting administration
among Federal, State, and local levels.
This Empowerment Bill would be effective because it drives to enhance
the National Guard, our first military responders. This force has
stepped up during dire situations time and time again. The National
Guard takes its responsibility to carry out relief missions at home as
seriously as it takes its missions abroad as the nation's primary
military reserve. The National Guard is a locally based force, spread
out in armories and readiness centers across the country. The Guard can
flow forces among States through the Emergency Management Assistance
Compacts process, which helped make the force one of the few shining
lights in the darkness of the response to Hurricane Katrina. The
National Guard has units that specialize in civil support, including
highly trained, full-time teams located in every one of our States. The
bottom line is that the Guard has shown that it can do this mission and
do it superbly.
The approach of the Empowerment Bill is constitutional because it
properly involves every layer of Government. It is our mayors, our
public safety chiefs, and our Governors who are responsible for the
security of their communities. Under our governmental system, they are
the ones that should be in control of emergency situations and any
Federal assets that come in should be strictly in support of them--
certainly not the other way around. The Guard is a State force that
works closely with these civilian authorities all the time. The Guard,
which serves under the command of the Governors, is part and parcel of
the community. The Guard knows that it is civilians, including their
elected leaders and the populace, who are the ultimate decision-makers
in these situations.
Our bill includes several key provisions. To improve the quality of
advice at the highest levels, the Chief of the National Guard Bureau
would gain a full seat on the Joint Chief of Staff, a key advisory body
where insufficient attention is paid to homeland defense matters. The
bill would ensure that U.S. Northern Command remains a Federal military
headquarters that truly supports the Governors and the initial Guard
response in an emergency, providing for the Governors to have tactical
control over any active duty and Reserve assets that might be operating
in their home State during an emergency. The National Guard Bureau is
enhanced in another section which specifically gives the National Guard
a separate budget to purchase domestic defense-oriented items. The
Bureau would carry out its responsibilities in close cooperation with a
newly
[[Page S2146]]
established planning committee and council that integrally involves the
States' Adjutants General. And the bill assigns several key command and
deputy command positions to National Guard officers who have experience
in homeland defense and domestic emergency response matters.
This fiscal year 2008 Defense Authorization Bill ushered in several
improvements to the National Guard, including an elevation of the
Bureau Chief to the rank of four-star general. The National Guard
Bureau is now more a joint agency than a sub-branch of the Army and the
Air Force, though the Guard remains a key part of the Army and Air
Force's Total Force. The Deputy Commander or Commander of U.S. Northern
Command now must come from the ranks of the National Guard. These are
far-reaching steps, though I remain concerned that the Department has
yet to implement these provisions, not even filling the four-star
position yet.
Together, last year's enacted organizational changes and those put
forth in this bill will fundamentally improve our preparations for an
emergency, and ensure an effective, swift, and constitutional response
when another emergency occurs.
Our National Guard has never let our country down, and--once again--
we cannot let our Guard down. I urge prompt attention and action on
this vital legislation.
Mr. President, I ask unanimous consent that the text of the bill and
supporting material be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2760
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 ``National Guard Empowerment
and State-National Defense Integration Act of 2008''.
SEC. 2. EXPANDED AUTHORITY OF THE CHIEF OF THE NATIONAL GUARD
BUREAU.
(a) Membership on Joint Chiefs of Staff.--
(1) In general.--Section 151(a) of title 10, United States
Code, is amended by adding at the end the following new
paragraph:
``(7) The Chief of the National Guard Bureau.''.
(2) Conforming amendment.--Section 10502 of such title is
amended--
(A) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively; and
(B) by inserting after subsection (c) the following new
subsection (d):
``(d) Member of Joint Chiefs of Staff.--The Chief of the
National Guard Bureau shall perform the duties prescribed for
him or her as a member of the Joint Chiefs of Staff under
section 151 of this title.''.
(b) Annual Report to Congress on Validated Requirements.--
Section 10504 of title 10, United States Code, is amended by
adding at the end the following new subsection:
``(c) Annual Report on Validated Requirements.--Not later
than December 31 each year, the Chief of the National Guard
Bureau shall submit to Congress a report on the following:
``(1) The requirements validated under section 10503a(b)(1)
of this title during the preceding fiscal year.
``(2) The requirements referred to in paragraph (1) for
which funding is to be requested in the next budget for a
fiscal year under section 10544 of this title.
``(3) The requirements referred to in paragraph (1) for
which funding will not be requested in the next budget for a
fiscal year under section 10544 of this title.''.
SEC. 3. EXPANDED FUNCTIONS OF THE NATIONAL GUARD BUREAU.
(a) Military Assistance for Civil Authorities.--Chapter
1011 of title 10, United States Code, is amended by inserting
after section 10503 the following new section:
``Sec. 10503a. Functions of National Guard Bureau: military
assistance to civil authorities
``(a) Identification of Additional Necessary Assistance.--
The Chief of the National Guard Bureau shall--
``(1) identify gaps between Federal and State military
capabilities to prepare for and respond to emergencies; and
``(2) make recommendations to the Secretary of Defense on
programs and activities of the National Guard for military
assistance to civil authorities to address such gaps.
``(b) Scope of Responsibilities.--In meeting the
requirements of subsection (a), the Chief of the National
Guard Bureau shall, in coordination with the adjutants
general of the States, have responsibilities as follows:
``(1) To validate the requirements of the several States
and Territories with respect to military assistance to civil
authorities.
``(2) To develop doctrine and training requirements
relating to the provision of military assistance to civil
authorities.
``(3) To acquire equipment, materiel, and other supplies
and services for the provision of military assistance to
civil authorities.
``(4) To assist the Secretary of Defense in preparing the
budget required under section 10544 of this title.
``(5) To administer amounts provided the National Guard for
the provision of military assistance to civil authorities.
``(6) To carry out any other responsibility relating to the
provision of military assistance to civil authorities as the
Secretary of Defense shall specify.
``(c) Assistance.--The Chairman of the Joint Chiefs of
Staff shall assist the Chief of the National Guard Bureau in
carrying out activities under this section.
``(d) Consultation.--(1) The Chief of the National Guard
Bureau shall carry out activities under this section through
and utilizing an integrated planning process established by
the Chief of the National Guard Bureau for purposes of this
subsection. The planning process may be known as the
`National Guard Bureau Strategic Integrated Planning
Process'.
``(2)(A) Under the integrated planning process established
under paragraph (1)--
``(i) the planning committee described in subparagraph (B)
shall develop and submit to the planning directorate
described in subparagraph (C) plans and proposals on such
matters under the planning process as the Chief of the
National Guard Bureau shall designate for purposes of this
subsection; and
``(ii) the planning directorate shall review and make
recommendations to the Chief of the National Guard Bureau on
the plans and proposals submitted to the planning directorate
under clause (i).
``(B) The planning committee described in this subparagraph
is a planning committee (to be known as the `State Strategic
Integrated Planning Committee') composed of the adjutant
general of each of the several States, the Commonwealth of
Puerto Rico, Guam, the Virgin Islands, and the District of
Columbia.
``(C) The planning directorate described in this
subparagraph is a planning directorate (to be known as the
`Federal Strategic Integrated Planning Directorate') composed
of the following (as designated by the Secretary of Defense
for purposes of this subsection):
``(i) A major general of the Army National Guard.
``(ii) A major general of the Air National Guard.
``(iii) A major general of the regular Army.
``(iv) A major general of the regular Air Force.
``(v) A major general (other than a major general under
clauses (iii) and (iv)) of the United States Northern
Command.
``(vi) The Director of the Joint Staff of the National
Guard Bureau under section 10505 of this title.
``(vii) Seven adjutants general from the planning committee
under paragraph (B).''.
(b) Budgeting for Training and Equipment for Military
Assistance to Civil Authorities and Other Domestic
Missions.--Chapter 1013 of such title is amended by adding at
the end the following new section:
``Sec. 10544. National Guard training and equipment: budget
for military assistance to civil authorities and for other
domestic operations
``(a) In General.--The budget justification documents
materials submitted to Congress in support of the budget of
the President for a fiscal year (as submitted with the budget
of the President under section 1105(a) of title 31) shall
specify separate amounts for training and equipment for the
National Guard for purposes of military assistance to civil
authorities and for other domestic operations during such
fiscal year.
``(b) Scope of Funding.--The amounts specified under
subsection (a) for a fiscal year shall be sufficient for
purposes as follows:
``(1) The development and implementation of doctrine and
training requirements applicable to the assistance and
operations described in subsection (a) for such fiscal year.
``(2) The acquisition of equipment, materiel, and other
supplies and services necessary for the provision of such
assistance and such operations in such fiscal year.''.
(c) Clerical Amendments.--
(1) The table of sections at the beginning of chapter 1011
of such title is amended by inserting after the item relating
to section 10503 the following new item:
``10503a. Functions of National Guard Bureau: military assistance to
civil authorities.''.
(2) The table of sections at the beginning of chapter 1013
of such title is amended by adding at the end the following
new item:
``10544. National Guard training and equipment: budget for military
assistance to civil authorities and for other domestic
operations.''.
SEC. 4. REDESIGNATION OF POSITIONS OF DIRECTOR OF THE ARMY
NATIONAL GUARD, DIRECTOR OF THE AIR NATIONAL
GUARD, AND ASSOCIATED POSITIONS.
(a) Redesignation.--Section 10506 of title 10, United
States Code, is amended--
(1) by striking ``Director, Army National Guard'' each
place it appears and inserting ``Vice Chief, Army National
Guard'';
(2) by striking ``Deputy Director, Army National Guard''
each place it appears and inserting ``Deputy Vice Chief, Army
National Guard'';
(3) by striking ``Director, Air National Guard'' each place
it appears and inserting ``Vice Chief, Air National Guard'';
and
[[Page S2147]]
(4) by striking ``Deputy Director, Air National Guard''
each place it appears and inserting ``Deputy Vice Chief, Air
National Guard''.
(b) Conforming Amendment.--Section 14512(a)(2)(D) of such
title is amended by striking ``Director of the Army National
Guard, or Director of the Air National Guard'' and inserting
``Vice Chief of the Army National Guard, or Vice Chief of the
Air National Guard''.
(c) References.--
(1) Director, army national guard.--Any reference in a law,
regulation, document, paper, or other record of the United
States to the Director of the Army National Guard shall be
deemed to be a reference to the Vice Chief of the Army
National Guard.
(2) Deputy director, army national guard.--Any reference in
a law, regulation, document, paper, or other record of the
United States to the Deputy Director of the Army National
Guard shall be deemed to be a reference to the Deputy Vice
Chief of the Army National Guard.
(3) Director, air national guard.--Any reference in a law,
regulation, document, paper, or other record of the United
States to the Director of the Air National Guard shall be
deemed to be a reference to the Vice Chief of the Air
National Guard.
(4) Deputy director, air national guard.--Any reference in
a law, regulation, document, paper, or other record of the
United States to the Deputy Director of the Air National
Guard shall be deemed to be a reference to the Deputy Vice
Chief of the Air National Guard.
SEC. 5. TREATMENT OF CERTAIN SERVICE AS JOINT DUTY
EXPERIENCE.
(a) Vice Chiefs, Army and Air National Guard.--Section
10506(a)(3) of title 10, United States Code, as amended by
section 4(a) of this Act, is further amended--
(1) by redesignating subparagraphs (C), (D), and (E) as
subparagraphs (D), (E), and (F), respectively; and
(2) by inserting after subparagraph (B) the following new
subparagraph (C):
``(C) Service of an officer as adjutant general shall be
treated as joint duty experience for purposes of assignment
or promotion to any position designated by law as open to a
National Guard general officer.''.
(b) Adjutants General and Similar Officers.--The service of
an officer of the Armed Forces as adjutant general, or as an
officer (other than adjutant general) of the National Guard
of a State who performs the duties of adjutant general under
the laws of such State, shall be treated as joint duty or
joint duty experience for purposes of any provisions of law
required such duty or experience as a condition of assignment
or promotion.
(c) Annual Reports on Duty in Joint Force Headquarters to
Qualify as Joint Duty Experience.--Not later than six months
after the date of the enactment of this Act, and annually
thereafter, the Chief of the National Guard Bureau shall, in
consultation with the adjutants general of the National
Guard, submit to the Chairman of the Joint Chiefs of Staff
and to Congress a report setting forth the recommendations of
the Chief of the National Guard Bureau as to which duty of
officers, and which duty of enlisted members, of the National
Guard in the Joint Force Headquarters of the National Guard
of the States should qualify as joint duty or joint duty
experience for purposes of the provisions of law requiring
such duty or experience as a condition of assignment or
promotion.
(d) Annual Reports on Joint Education Courses.--Not later
than six months after the date of the enactment of this Act,
and annually thereafter, the Chairman of the Joint Chiefs of
Staff shall submit to Congress a report setting forth
information on the joint education courses available through
the Department of Defense for purposes of the pursuit of
joint careers by officers in the Armed Forces. Each report
shall include, for the preceding year, the following:
(1) A list and description of the joint education courses
so available during such year.
(2) A list and description of the joint education courses
listed under paragraph (1) that are available to and may be
completed by officers of the reserve components of the Armed
Forces in other than an in-resident duty status under title
10, United States Code, or title 32, United States Code.
(3) For each course listed under paragraph (1), the number
of officers from each Armed Force who pursued such course
during such year, including the number of officers of the
Army National Guard, and of the Air National Guard, who
pursued such course.
SEC. 6. ENHANCEMENT OF AUTHORITIES RELATING TO THE UNITED
STATES NORTHERN COMMAND AND OTHER COMBATANT
COMMANDS.
(a) Commands Responsible for Support to Civil Authorities
in the United States.--The United States Northern Command and
the United States Pacific Command shall be the combatant
commands of the Armed Forces that are principally responsible
for the support of civil authorities in the United States by
the Armed Forces.
(b) Discharge of Responsibility.--In discharging the
responsibility set forth in subsection (a), the Commander of
the United States Northern Command and the Commander of the
United States Pacific Command shall each--
(1) in consultation with and acting through the Chief of
the National Guard Bureau and the Joint Force Headquarters of
the National Guard of the State or States concerned, assist
the States in the employment of the National Guard under
State control, including National Guard operations conducted
in State active duty or under title 32, United States Code;
and
(2) facilitate the deployment of the Armed Forces on active
duty under title 10, United States Code, as necessary to
augment and support the National Guard in its support of
civil authorities when National Guard operations are
conducted under State control, whether in State active duty
or under title 32, United States Code.
(c) Memorandum of Understanding.--
(1) Memorandum required.--Not later than 180 days after the
date of the enactment of this Act, the Commander of the
United States Northern Command, the Commander of the United
States Pacific Command, and the Chief of the National Guard
Bureau shall, with the approval of the Secretary of Defense,
jointly enter into a memorandum of understanding setting
forth the operational relationships, and individual roles and
responsibilities, during responses to domestic emergencies
among the United States Northern Command, the United States
Pacific Command, and the National Guard Bureau.
(2) Modification.--The Commander of the United States
Northern Command, the Commander of the United States Pacific
Command, and the Chief of the National Guard Bureau may from
time to time modify the memorandum of understanding under
this subsection to address changes in circumstances and for
such other purposes as the Commander of the United States
Northern Command, the Commander of the United States Pacific
Command, and the Chief of the National Guard Bureau jointly
consider appropriate. Each such modification shall be subject
to the approval of the Secretary of Defense.
(d) Authority To Modify Assignment of Command
Responsibility.--Nothing in this section shall be construed
as altering or limiting the power of the President or the
Secretary of Defense to modify the Unified Command Plan in
order to assign all or part of the responsibility described
in subsection (a) to a combatant command other than the
United States Northern Command or the United States Pacific
Command.
(e) Regulations.--The Secretary of Defense shall prescribe
regulations for purposes of aiding the expeditious
implementation of the authorities and responsibilities in
this section.
SEC. 7. STATE CONTROL OF FEDERAL MILITARY FORCES ENGAGED IN
ACTIVITIES WITHIN THE STATES AND POSSESSIONS.
(a) In General.--Part I of subtitle A of title 10, United
States Code, is amended by inserting after chapter 15 the
following new chapter:
``CHAPTER 16--CONTROL OF THE ARMED FORCES IN ACTIVITIES WITHIN THE
STATES AND POSSESSIONS
``Sec.
``341. Tactical control of the armed forces engaged in activities
within the States and possessions: emergency response
activities.
``Sec. 341. Tactical control of the armed forces engaged in
activities within the States and possessions: emergency
response activities
``(a) In General.--The Secretary of Defense shall prescribe
in regulations policies and procedures to assure that
tactical control of the armed forces on active duty within a
State or possession is vested in the governor of the State or
possession, as the case may be, when such forces are engaged
in emergency response activities within such State or
possession.
``(b) Discharge Through Joint Force Headquarters.--The
policies and procedures required under subsection (a) shall
provide for the discharge of tactical control by the governor
of a State or possession as described in that subsection
through the Joint Force Headquarters of the National Guard in
the State or possession, as the case may be, acting through
the officer of the National Guard in command of the
Headquarters.
``(c) Possessions Defined.--Notwithstanding any provision
of section 101(a), in this section, the term `possessions'
means the Commonwealth of Puerto Rico, Guam, and the Virgin
Islands.''.
(b) Clerical Amendments.--The tables of chapters at the
beginning of title 10, United States Code, and at the
beginning of part I of subtitle A of such title, are each
amended by inserting after the item relating to chapter 15
the following new item:
``16. Control of the Armed Forces in Activities Within the States and
Possessions..............................................341''.....
SEC. 8. REQUIREMENTS RELATING TO NATIONAL GUARD OFFICERS IN
CERTAIN COMMAND POSITIONS.
(a) Commander of Army North Command.--The officer serving
in the position of Commander, Army North Command, shall be an
officer in the Army National Guard of the United States.
(b) Commander of Air Force North Command.--The officer
serving in the position of Commander, Air Force North
Command, shall be an officer in the Air National Guard of the
United States.
(c) Sense of Congress.--It is the sense of Congress that,
in assigning officers to the command positions specified in
subsections (a) and (b), the President should afford a
preference in assigning officers in the Army National Guard
of the United States or Air National Guard of the United
States, as applicable, who have served as the adjutant
general of a State.
[[Page S2148]]
(d) Certain Joint Task Force Positions.--
(1) In general.--Of the officers serving in the positions
specified in each subparagraph of paragraph (2), as least one
such officer under each subparagraph shall be an officer in
the Army National Guard of the United States or an officer in
the Air National Guard of the United States.
(2) Covered positions.--The positions specified in this
paragraph are:
(A) Commander, Joint Task Force Alaska, and Deputy
Commander, Joint Task Force Alaska.
(B) Commander, Joint Task Force Civil Support, and Deputy
Commander, Joint Task Force Civil Support.
(C) Commander, Joint Task Force North, and Deputy
Commander, Joint Task Force North.
____
Summary: National Guard Empowerment and State-National Defense
Integration Act of 2008
purpose
To enhance the national defense through empowerment of the
National Guard, enhancement of the functions of the National
Guard Bureau, and improvement of Federal-State military
coordination in domestic emergency response
SECTION 1: Title
National Guard Empowerment and State-National Defense
Integration Act of 2008
Section 2: Joint Chiefs of Staff
Make the Chief of the National Guard Bureau a full member
of the Joint Chiefs of Staff
Section 3: Guard Bureau Duties
Formally give the Guard Bureau the function of working with
the states to identify equipment gaps for the purpose of
providing military assistance to civil authorities. The
Bureau shall work with states--through a State/Adjutant
General-dominated planning committee and Federal planning
directorate--to validate equipment requirements, develop
doctrine for assisting civil authorities in emergencies,
acquire necessary equipment, prepare a military assistance
budget, and administer the funding provided for military
assistance.
Section 4: Vice Chiefs
Rename the positions of Activities Directors of the Army
and Air National Guard to ``Deputy Vice Chief, Army National
Guard'' and ``Deputy Vice Chief, Air National Guard,''
respectively.
Section 5: Joint Duty Credit
Provides the Adjutant Generals of the United States with
so-called Joint Duty Credit for their experience in the
position. Requires the Department of Defense to provide a
report on providing joint-duty credit for officers serving in
National Guard Joint Force Headquarters, as well as summary
of Joint-Duty courses available for Reserve Components
officers interested in following a joint career.
Section 6: Northern Command
States that Northern Command and Pacific Command are the
commands responsible for providing military assistance for
civil authorities, and, to carry out that responsibility,
these commands must assist the states in employing the
National Guard and facilitate the deployment of Title 10
forces to supplement and support the Guard, whether operating
in State Active Duty or under Title 32 United State Code.
Northern Command and Pacific Command must complete a
Memorandum of Understanding with the National Guard Bureau on
their operational relationship within 180 days of enactment.
Section 7: Governor's Tactical Control
Direction to the Department of Defense to establish
procedures for the nation's Governors to have tactical
control over the military forces, including Title 10 active
forces, operating in their state during an emergency. Such
tactical control will be exercised by the Governor through
the Joint Forces Headquarters of the National Guard of the
State. According to Department of Defense standard terms,
Tactical Control is ``Command authority over assigned or
attached forces or commands ... that is limited to the
detailed direction and control of movements or maneuvers
within the operational area necessary to accomplish missions
or tasks assigned.''
Section 8: National Guard Command Positions
A National Guard officer will remain Commander of Air Force
North, while Guard officers shall become the Commander Army
North, and Commander or Deputy Commander of Joint Task Force
Alaska, Joint Task Force Civil Support, and Joint Task Force
North.
____
National Guard Association
of the United States, Inc.,
Washington, DC, March 13, 2008.
Hon. Patrick Leahy,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Leahy: The National Guard Association of the
United States applauds your introduction of the ``National
Guard Empowerment and State-National Defense Integration Act
of 2008.'' Your legislation is the logical next step in fully
codifying the initiatives that had their birth two years ago
in the National Guard Empowerment Act.
With the passage of the National Defense Authorization Act
for 2008, many of the substantive elements of ``empowerment''
for the National Guard have been presented to the Department
of Defense for immediate implementation in accordance with
the wishes of the Congress. We are eagerly awaiting their
timely response.
Meanwhile, we support the additional well-reasoned
legislative remedies contained in your new bill that will
knit together the missing pieces of the empowerment concept.
In our view, empowerment for the National Guard is simply a
restatement, in contemporary language, of the reliance placed
on the National Guard by the framers of the United States
Constitution in Article 1, Section 8.
Thank you for leading this effort for the American people.
Sincerely,
Stephen M. Koper,
Brigadier General, USAF (ret),
President.
____
Adjutants General Association
of the United States,
Washington, DC, March 13, 2008.
Hon. Patrick Leahy,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Leahy: The Adjutants General Association of
the United States commends you, your colleagues and your
staff on your foresight in introducing the ''National Guard
Empowerment and State-National Defense Integration Act of
2008.'' This legislation will take the next logical step in
advancing the gains of the National Guard Empowerment Act and
ensuring the intent of that legislation is met.
We understand and appreciate just how hard you and the
entire Guard Caucus worked to gain passage of the National
Defense Authorization Act for 2008, which gave birth to
``empowerment'' for the National Guard. However, the
realization of empowerment has been slow to materialize. With
the introduction of this legislation, we are hopeful that the
Department of Defense will act in accordance with the wishes
of the Congress.
Again, we thank you for your new bill which will serve to
complete the vision of the empowerment concept, which had its
genesis two years ago with the original National Guard
Empowerment Act. It is clear that empowerment for the
National Guard remains a priority of the Congress.
We thank you for your continuing efforts on the National
Guard's behalf.
Sincerely,
Francis D. Vavala,
Major General, DEARNG,
President AGAUS.
____
Enlisted Association of the National Guard of the United
States,
Alexandria, VA, March 13, 2008.
Hon. Patrick Leahy,
U.S. Senate, Washington, D.C.
Hon. Kit Bond,
U.S. Senate, Washington, DC.
The Enlisted Association of the National Guard of the
United States, EANGUS is pleased to express our strongest
possible support, on behalf of the Enlisted men and women of
the Army and Air National Guard, in your efforts to amend
Title 10 of the United States Code to enhance the
responsibilities of the Chief of the National Guard Bureau
and the functions of the National Guard Bureau.
Although some historic changes were made in Public Law 110-
181, signed by the President on January 28,2008, many of the
original provisions of the National Guard Empowerment Act
of2007 were ``left on the cutting table'' and not enacted
into law. These valuable and necessary provisions must be
addressed and are addressed in your legislation.
Our association stands firm in support of your action to
remedy this error of omission. The lack of respect of the
leadership of the National Guard by service secretaries and
leaders, the consistent under-funding of National Guard
appropriations accounts, and the intentional lack of
communication and coordination all have the possibility of
being rectified by this legislation by making the Chief a
full partner in the decision-making and appropriations
process.
Thank you for taking legislative action that is not only
timely, but unfortunately necessary, and long overdue. We
look forward to working with your staff as this legislation
works its way into law.
Working for America's Best!
Michael P. Cline,
Master Sergeant, USA (Ret),
Executive Director.
______
By Mr. KYL (for himself, Mr. Coburn, Mr. Craig, and Mr. Bunning):
S. 2762. A bill to prioritize the provision of assistance to combat
HIV/AIDS, tuberculosis, and malaria to in-need countries; to the
Committee on Foreign Relations.
Mr. KYL. Mr. President, I rise today to call attention to the
reauthorization of the President's Emergency Plan for AIDS Relief, also
known as PEPFAR.
The program authorized in 2003 provided $15 billion over 5 years to
the cause of AIDS relief in parts of the world ravaged by that disease.
PEPFAR was a demonstration of the American people's desire to help
those in need.
[[Page S2149]]
The 2003 legislation was also a demonstration of the American
people's desire that their generosity not be wasted, as they have seen
before with so many other aid programs. To that end, the legislation
required that the lion's share of the funds be devoted to treatment of
patients in need.
It encouraged accountability and transparency and it funded programs
that could demonstrate results, such as the requirement that one third
of prevention funds be spent on abstinence education programs--a
decision that has kept countless persons from getting infected with HIV
since 2003.
It is therefore mind boggling to me that recent reauthorization
proposals the bill passed by the House Foreign Affairs Committee last
week and the bill scheduled for mark up by the Senate Foreign Relations
Committee today--would take such giant steps backward.
The bill originally introduced in the House would have eliminated the
conscience clause, which protects humanitarian and medical
professionals involved in these programs from having to participate in
prevention and treatment methods that they find morally or religiously
objectionable. Wisely, this provision was kept in the bill passed by
the House committee, though it is substantially watered down--to the
point of being nonbinding--in the Senate Foreign Relations Committee
bill.
The original House bill struck the requirement that organizations
that receive PEPFAR grants be opposed to prostitution and sex
trafficking. That these commonsense provisions were even in danger of
being dropped in the reauthorization of PEPFAR is sadly telling. It
appears the Senate Foreign Relations Committee chose not to challenge
such an unimpeachable provision of law.
And, unlike the majority on the House Foreign Affairs Committee,
which backed down from including many troubling provisions on abortion
and family planning demanded by far left groups, it appears the Senate
Committee bill would pander to the so-called ``family planning''
agenda.
I am also deeply troubled that both the House Foreign Affairs
Committee and Senate Foreign Relations Committee reauthorization
proposals remove the requirement that at least fifty-five percent of
the funds in the program be spent on treatment of AIDS patients. This
provision was an important check on bureaucratic wastefulness and
``make work'' and it must be preserved.
Additionally, the requirement that thirty-three percent of PEPFAR
prevention funds be spent on abstinence education, removed by the
majority in last year's omnibus appropriations process, has not been
restored in either of these two reauthorization proposals. In fact, all
that remains in the tatters of that requirement in either of these
bills is something only a bureaucrat could love: in the event a future
AIDS coordinator chooses to ignore abstinence education, a report must
be sent to Congress.
What is more, both of these reauthorization proposals include
provisions that appear to undermine protections for intellectual
property, the same protections that are necessary to ensure that
innovation and research into life-saving medications continue.
While I am sure the sponsors of these two proposals are well-meaning,
they further increase support for TB and malaria programs, even though
the U.S. is already the largest contributor to TB and malaria programs
through the Global Fund. Sadly, the Global Fund has become synonymous
with graft and multilateral bureaucratic waste in many countries. We
should not be duplicating those existing programs. We owe it to the
American taxpayer, and those people suffering from these dreaded
diseases, to fix the problems that abound in the Global Fund.
Lastly, but most significantly, both reauthorization proposals more
than triple the expenditure for PEPFAR--something we simply cannot
afford. PEPFAR 2003 authorized $15 billion over 5 years for emergency
AIDS relief. Not satisfied with a mere doubling of this program as
requested, both of these proposals would provide $50 billion over 5
years.
As I have noted already, the American people are a generous people.
Our annual foreign aid budget reflects this generosity. However, this
ability to give is not limitless.
Need I remind my colleagues, our economy is in distress. The
presidential candidates on the other side are calling for a Federal
Government bailout of homeowners facing foreclosure: with $50 billion,
we could provide 235,157 homeowners with such a bailout.
Moreover, Congress just passed, and the president just signed, a
program to provide Americans with checks intended to stimulate the
economy. While I have doubts that this plan will succeed, I note that
with this $50 billion, 157 million tax filers could be given rebate
checks of $318.47.
Alternatively, with $50 billion, we could ``fully fund'' both No
Child Left Behind and the Individuals with Disabilities Education Act
at their authorized levels for one year.
Congress is beginning the annual budget cycle and we are daily
confronted with requests for more and more federal spending. Already,
key leaders in the budget process are threatening that if they don't
get their way on domestic spending, they will add their spending to the
forthcoming but overdue War Supplemental or will short circuit the
budget process with a continuing resolution or yet another omnibus.
Agreeing to this massive increase is not the way to discipline what is
already shaping up to be a budget train wreck.
Governing is about choosing. By agreeing to this increase to $50
billion, neither the House nor Senate committees are governing. They
are taking the easy course of action: spending.
I supported the President's Emergency Plan for AIDS Relief in 2003. I
could reluctantly support doubling that amount over the next five
years. But adding another $20 billion on top of that is too much.
We cannot lose sight of the sacrifices of millions of Americans who
work hard and pay the taxes that support these programs. $50 billion is
too much.
I cannot support a bill that so dramatically spends beyond what we
can afford and so wantonly ignores accountability and transparency
tools that safeguard the generosity of the American people.
This legislation can still be salvaged.
Yesterday, I cosponsored legislation with the Senator from Oklahoma,
Dr. Coburn, and the Senator from North Carolina, Mr. Burr, that sets
some key principles that must be a part of the reauthorization.
Earlier today, I introduced a bill that would prohibit the extension
of PEPFAR funds away from their core purpose, helping the neediest
countries. This legislation must also be a part of the reauthorization
of PEPFAR.
I support the PEPFAR program and I believe that it is worth passage
if funded at a responsible authorization level with at least the kind
of commonsense policy, accountability, and transparency provided in the
2003 bill.
______
By Mr. DODD:
S. 2767. A bill to provide for judicial discretion regarding
suspensions of student eligibility under section 484(r) of the Higher
Education Act of 1965; to the Committee on Health, Education, Labor,
and Pensions.
Mr. DODD. Mr. President, I rise today to introduce legislation to add
judicial discretion to the Higher Education Act Aid Elimination
Penalty. Since 1998 the law prevents any student convicted of
possession of a controlled substance from receiving Federal financial
aid.
Since the penalty was enacted, approximately 200,000 low to middle
income students seeking a college education have been disqualified from
receiving Federal financial assistance. In many cases, these are
committed young people who simply want to make better lives for
themselves. In order to be eligible for financial aid in the first
place, these students have proven they can perform academically.
Unfortunately, they have made the mistake many young people have made
experimenting with drugs.
Just like every Senator in this chamber, I want to help keep
America's young people from making this mistake and jeopardizing their
health and their futures. We should all work to enact policies that
effectively deter dangerous drug use. But this is a sophisticated and
complicated issue and it cannot be solved by blunt measures such as the
Aid Elimination Penalty.
[[Page S2150]]
Any drug abuse expert will tell you that helping someone get off of
drugs or stay away from trying them requires a variety of approaches.
In some cases the fear of consequences, such as the Aid Elimination
Penalty, may be enough. But in many other cases, counseling,
rehabilitation, and positive reinforcement may offer more effective
ways to achieve this goal.
Our laws should reflect the need for varied approaches.
Unfortunately, the Aid Elimination Penalty does not. It is a blunt tool
that sweeps all cases into the same one size fits all solution. There
is little distinction under this law as to whether the drug possession
is a major or minor violation and to what degree the infraction affects
the community at large; Teenagers bowing to peer-pressure for the first
time are treated the same as serious drug users disrupting their
communities. This means that while in some cases we are penalizing
chronic drug abusers, we are also penalizing good students who will
mature and have a better chance of rectifying their mistakes by
continuing their education.
What is most disturbing is how the consequences of the penalty can
negatively impact the course of a student's life. Many students
affected by the Aid Elimination Penalty are forced to leave school
since it is no longer affordable without financial assistance. Data
from the National Center of Education Statistics demonstrates that many
of these students will not continue their education: 36 percent of
students who leave 4-year institutions do not return within 5 years and
50 percent of students who leave 2-year institutions do not return
within 5 years. For these students, denial of Federal college
assistance will only force them from school, and may set them on an
even more self destructive course of increased drug use and abuse. In
these cases, the Aid Elimination Penalty actually backfires and serves
to undermine our efforts to prevent the use and abuse of drugs.
That is why I am introducing this legislation to insert judicial
discretion into the current law. My bill would make the penalty
dependent on the ruling of a judge, allowing them to weigh the value of
implementing the penalty as part of other sanctions and punishments on
a case by case basis. This will enable the judge to deny student
financial aid if the situation merits it, and if he or she believes it
is the most effective or even the only way to help a student get
control of his or her life. This legislation would also grant judges
the ability, based on the circumstances, to determine that continuation
of a college education, in conjunction with rehabilitation and possibly
other sanctions, offers both the student and the community the best
possible outcome. This is the way the rest of the criminal justice
system works and it is the way the Aid Elimination Penalty should be
implemented. With this change we can fine tune our approach to this
problem and minimize the negative unintended consequences of current
law. I urge my colleagues to see the wisdom of this approach and help
me to refine the law to be more effective in protecting our communities
and ensuring deserving students the opportunity to advance their
education.
Mr. President, I ask unanimous consent that the text of the 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. 2767
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. JUDICIAL DISCRETION FOR SUSPENSION OF ELIGIBILITY.
Section 484(r) of the Higher Education Act of 1965 (20
U.S.C. 1091(r)) is amended--
(1) in paragraph (1), by striking ``A student'' and
inserting ``Subject to paragraph (3), a student'';
(2) by redesignating paragraph (3) as paragraph (4); and
(3) by inserting after paragraph (2) the following:
``(3) Applicability.--This subsection shall only apply to a
student if the Federal or State court that convicted the
student of an offense described in paragraph (1) has ordered
that the student's eligibility for assistance under this
title be suspended in accordance with this subsection.''.
______
By Mr. AKAKA (for himself, Mr. Reid, Mr. Durbin, Mr. Burr, Mr.
Rockefeller, Mrs. Murray, Mr. Obama, Mr. Sanders, Mr. Brown,
Mr. Baucus, Mrs. Clinton, Mr. Kerry, and Mrs. Boxer):
S. 2768. A bill to provide a temporary increase in the maximum loan
guaranty amount for certain housing loans guaranteed by the Secretary
of Veterans Affairs; to the Committee on Veterans' Affairs.
Mr. AKAKA. Mr. President, today I introduce a bill that would rectify
an oversight made in the recent passage of the Economic Stimulus Act of
2008. If enacted, this bill will allow thousands of veterans to realize
the American dream of owning a home. Senators Reid, Durbin, Burr,
Rockefeller, Murray, Obama, Sanders, Brown, Baucus, Clinton, Kerry, and
Boxer join me in offering this legislation.
The VA Home Loan Guaranty was part of the original GI Bill in 1944.
It was signed into law by President Franklin D. Roosevelt and provided
veterans with a federally guaranteed home loan with no down payment.
So, as World War II was ending, landmark legislation made the dream of
home ownership a reality for millions of returning veterans. They were
able to build new homes and otherwise begin new lives following their
service and with the assistance of the Federal Government.
Today, more than 25 million veterans and servicemembers are eligible
for VA home loan guarantees. Eligibility extends to veterans who served
on active duty for a minimum of 90 days during wartime or a minimum of
181 continuous days during peacetime, and have a discharge other than
dishonorable. Members of the Guard and Reserve who have never been
called to active duty must serve a total of 6 years in order to be
eligible. Certain surviving spouses are also eligible for the housing
guarantee.
The amount of the home loan guaranty was last adjusted by the
Veterans Benefits Act of 2004. The maximum guaranty amount was
increased to 25 percent of the Freddie Mac conforming loan limit
determined under section 305(a)(2) of the Federal Home Loan Mortgage
Corporation Act for a single family residence, as adjusted for the year
involved. Using that formula, since the Freddie Mac conforming loan
limit for a single family residence in 2008 is $417,000, VA will
guaranty a veteran's loan up to $104,250, or 25 percent of the Freddie
Mac limit. This guaranty exempts homeowners from having to make a down
payment or secure private mortgage insurance.
The newly-enacted Economic Stimulus Act of 2008, however, temporarily
reset the Fannie Mae, Freddie Mac, and FHA home loan guarantee limits
to 125 percent of metropolitan-area median home prices, without
reference to the VA home loan program. This had the effect of raising
the Fannie Mae and Freddie Mac limits to nearly $730,000, in the
highest cost areas, while leaving the VA limit of $417,000 in place.
The measure I am introducing today would correct the oversight in the
Economic Stimulus Act and extend the temporary increase to veterans as
well.
Unlike the economic stimulus legislation, my legislation would extend
the temporary increase to December 31, 2011, rather than just through
2008. This would enable more veterans to utilize their VA benefit to
purchase a home. In fact, VA expects that there would be an increase of
approximately 4,313 loans as a result of increasing the VA loan limit
through December 2011.
I urge all of my colleagues to support this measure, so that this
important group of Americans might reap the benefits of an increased
home loan guaranty in this time of economic uncertainty.
Mr. President, I ask unanimous consent that the text of the 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. 2768
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. TEMPORARY INCREASE IN MAXIMUM LOAN GUARANTY AMOUNT
FOR CERTAIN HOUSING LOANS GUARANTEED BY THE
SECRETARY OF VETERANS AFFAIRS.
Notwithstanding subparagraph (C) of section 3703(a)(1) of
title 38, United States Code, for purposes of any loan
described in subparagraph (A)(i)(IV) of such section that is
originated during the period beginning on
[[Page S2151]]
the date of the enactment of this Act and ending on December
31, 2011, the term ``maximum guaranty amount'' shall mean an
amount equal to 25 percent of the higher of--
(1) the limitation determined under section 305(a)(2) of
the Federal Home Loan Mortgage Corporation Act (12 U.S.C.
1454(a)(2)) for the calendar year in which the loan is
originated for a single-family residence; or
(2) 125 percent of the area median price for a single-
family residence, but in no case to exceed 175 percent of the
limitation determined under such section 305(a)(2) for the
calendar year in which the loan is originated for a single-
family residence.
______
By Mrs. FEINSTEIN (for herself, Mr. Stevens, Mr. Akaka, and Mrs.
Boxer):
S. 2770. A bill to amend the Federal Meat Inspection Act to
strengthen the food safety inspection system by imposing stricter
penalties for the slaughter of nonambulatory livestock; to the
Committee on Agriculture, Nutrition, and Forestry.
Mrs. FEINSTEIN. Mr. President, I rise today on behalf of myself,
Senator Stevens and Senator Akaka to offer a bill that takes a major
step forward in protecting our Nation's food supply. This bill will
provide penalties for those who are caught trying to slaughter
``nonambulatory'' or downed animals for food, and will improve public
notification procedures for voluntary food recalls.
First, this bill would ban the slaughter of ``nonambulatory'' animals
for use in food.
Second, it would establish a graduated penalty system providing
incentives for slaughter facilities to follow the law regarding
nonambulatory animals; and; third, in the event of a meat or poultry
recall, it would direct the USDA to release the names of establishments
that have received the recalled products so consumers can more easily
identify products that could be harmful.
Animals that are sick and too weak to stand or walk on their own
should not be slaughtered and used for food.
The safety of our food supply is too important to take any chances.
Processing downed animals poses a health risk especially to
vulnerable populations, those who have compromised immune systems, and
the very young and elderly who rely on our Government food inspection
system to protect them against foodborne illness.
On February 17, 2008, the Westland/Hallmark Meat Company in Chino,
CA, issued a recall of over 143 million pounds of beef products that
were processed at their plant.
This came after the Humane Society of the U.S. released a video
showing workers abusing nonambulatory cows to get them on their feet
for slaughter.
The recall brought to the forefront the risk associated with
processing sick or injured animals for human consumption.
The potential health risk of slaughtering downed animals became a
public concern in late 2003 when a cow imported from Canada was found
to have BSE, mad cow disease.
In an effort to keep BSE infected beef out of the food supply, USDA
banned all nonambulatory cattle from being slaughtered regardless of
the reason.
Since then, the regulation banning nonambulatory cattle from
slaughter has been revised to allow USDA veterinarians discretion on a
case-by-case basis to allow downed cattle into the food supply.
Clearly, establishments have an incentive to keep all the animals
delivered to their facility ambulatory for slaughter.
This legislation provides the incentive for an establishment to
follow the laws and regulations governing the humane handling of
nonambulatory animals by offering a graduated penalty system for
noncompliance.
For a first violation, in addition to temporarily suspending USDA
inspection, a fine will be assessed and will be based on a percentage
of the establishment's gross income.
A second violation will suspend USDA inspection services for 1 year.
A third violation will withdraw the establishment's Grant of
Inspection permanently, effectively closing the operation.
Additionally, to aid in recovering all of the meat products that are
recalled, the USDA will be required to promulgate regulation to release
the names of establishments that have received recalled products.
This will help distributors, retailers and consumers better identify
products that have been recalled to aid them in getting those products
off their shelves and out of their homes.
We must ensure that those who process our food provide the safest,
most wholesome products possible to consumers, and when a recall is
necessary, we must provide the best notification systems for consumers
to take action.
This bill will take us one step closer to a safer more wholesome food
supply system.
I hope that my colleagues will join us in support of this important
bill.
______
By Ms. LANDRIEU (for herself, Mr. Hagel, Ms. Snowe, Mr. Dodd, Mr.
Bayh, Mr. Kerry, Mr. Casey, Mr. Whitehouse, and Mr. Johnson):
S. 2771. A bill to require the President to call a White House
Conference on Children and Youth in 2010; to the Committee on Health,
Education, Labor, and Pensions.
Ms. LANDRIEU. Mr. President, I am pleased today to introduce with
Senator Hagel legislation that would reinstate the White House
Conference on Children and Youth. This Conference was originally
created by President Theodore Roosevelt in 1909, and continued every 10
years through 1970. Despite funding in 1981 and reauthorization
legislation in 1990, no conference has been held since that 1970
gathering. It is time to renew our commitment to America's children and
resurrect the oldest White House Conference in U.S. history.
Similar to the White House Conference on Aging, this symposium would
be the culmination of nationwide events held over a 2-year span. Just
as with the first White House Conference, this summit would focus on
child welfare issues. The legislation authorizes a conference to be
held in 2010, and establishes a bipartisan, bicameral policy committee,
including members selected by the next administration. To promote and
inform the conference and to engage stakeholders, State and local
events would be held around the country in 2009. These events and the
conference would focus specifically on child welfare including the
range of issues from prevention, intervention to permanency including
reunification, kinship care and adoption. Participants would also
include state officials, court and legal representatives, providers,
children, tribal representatives and other parties affected by or
involved with the child welfare system. By connecting these
stakeholders through this conference, we can improve the lives of
children throughout the country.
Previous conferences have led to major policy improvements in child
welfare. The Children's Bureau was established after the first
conference, and recommendations were made that deemphasized the
institutionalization of children and encouraged the growth of adoption
agencies. In 1919, the White House Conference initiated standards for
child welfare, and ten years later it created a 19-point charter to
address the needs of our children.
We look forward to comparable achievements from the conference in
2010, and hope that you will join with us in this effort.
Mr. President, I ask unanimous consent that the text of the 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. 2771
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 ``White House Conference on
Children and Youth in 2010 Act''.
SEC. 2. FINDINGS AND POLICY.
(a) Findings.--Congress finds the following:
(1) In 2005 there were over 3,000,000 reports of child
abuse and neglect. Only 60 percent of the children from the
substantiated reports received follow-up services, and 20
percent of such children were placed in foster care as a
result of an investigation.
(2) Each year there are nearly 900,000 substantiated
reports of child abuse and neglect.
(3) Each year approximately 60 percent of such
substantiated reports are reports of neglect, 30 percent are
physical or sexual abuse reports, and more than 20 percent
are reports that involve other forms of abuse.
(4) Almost 500,000 children (including youth) were in
foster care at the end of fiscal year 2004 and nearly 800,000
spent at least some time in foster care during the year.
(5) While 51,000 children are adopted from the foster care
system each year, more than 117,000 children are waiting to
be adopted.
[[Page S2152]]
(6) Each year approximately 22,000 youth leave the foster
care system not because they have found permanent placements,
but because they have reached the age at which foster care
ends.
(7) The child welfare system includes State and local
governments, tribal governments, child welfare agencies,
child welfare caseworkers, private agencies, social workers,
the courts, volunteer court-appointed special advocates,
mental health and health care professionals, educators, and
advocates.
(8) There is an overrepresentation of certain populations,
including Native Americans and African-Americans, in the
child welfare system.
(9) The number of children being raised by grandparents and
other relatives is increasing and exceeds 6,000,000 children.
The Government recognized that kinship care is a permanency
option through the enactment of the Adoption and Safe
Families Act of 1997.
(10) The State courts make key decisions in the lives of
children involved in the child welfare system, including
decisions about whether children have been victims of child
abuse, whether parental rights should be terminated, and
whether children should be reunified with their families,
adopted, or placed in other settings.
(11) The child welfare system will never fully address its
primary mission unless the courts are an integral and
functioning component of a statewide system of care and
protection.
(b) Policy.--It is the policy of Congress that--
(1) the Government should work jointly with the States and
their residents to develop recommendations and plans for
action to meet the challenges and needs of children and
families involved with the child welfare system, consistent
with this Act;
(2) in developing such recommendations and plans, the
persons involved should emphasize the role of the Government,
State and local child welfare systems, State and local family
court systems, child welfare advocates, guardians, and other
key participants in such child welfare systems, with a goal
of enhancing and protecting the lives and well-being of
children and families who are involved with such child
welfare systems; and
(3) Federal, State, and local programs and policies should
be developed to reduce the number of children who are abused
and neglected, to reduce the number of children in foster
care, and to dramatically increase the number of children in
permanent placements through family reunification, kinship
placement, and adoption.
SEC. 3. AUTHORIZATION OF THE CONFERENCE.
(a) Authority To Call the Conference.--The President shall
call a White House Conference on Children and Youth in 2010
(referred to in this Act as ``the Conference''), to be
convened not later than 18 months after the selection of the
last member of the Policy Committee established in section 4,
to encourage improvements in each State and local child
welfare system, and to develop recommendations for actions to
implement the policy set forth in section 2(b).
(b) Planning and Direction.--The Secretary shall plan,
convene, and conduct the Conference in cooperation with the
heads of other appropriate Federal entities, including the
Attorney General, the Secretary of Education, and the
Secretary of Housing and Urban Development.
(c) Purposes of the Conference.--The purposes of the
Conference are--
(1) to identify the problems and challenges of child abuse
and neglect, and the needs of the children and families
affected by decisions made through the child welfare system;
(2) to strengthen the use of research-based best practices
that can prevent child abuse and neglect with a special focus
on younger children;
(3) to strengthen the use of research-based best practices
that can increase placement permanency for children removed
from their homes, including practices involving family
reunification, kinship placement, and adoption;
(4) to promote the role of State and local family courts in
each State child welfare system;
(5) to develop recommendations that will reduce the number
of children who are in out-of-home care and who fail to leave
foster care before the age of majority, and recommendations
that will reduce the over representation of certain
populations in the child welfare system;
(6) to examine the role of the Government in building an
equal partnership with State, local, and tribal entities in
order to assist with, and encourage, State, local, and tribal
coordination;
(7) to develop such specific and comprehensive
recommendations for State-level executive and legislative
action as may be appropriate for maintaining and improving
the well-being of children in such system; and
(8) to review the status of recommendations regarding child
welfare made by previous White House conferences.
SEC. 4. POLICY COMMITTEE.
(a) Establishment.--There is established a Policy
Committee, which shall be comprised of 17 members to be
selected as follows:
(1) Presidential appointees.--Nine members shall be
selected by the President and shall consist of--
(A) 3 members who are officers or employees of the Federal
Government; and
(B) 6 members, who may be officers or employees of the
Federal Government, with experience in the field of child
welfare, including providers and children directly affected
by the child welfare system.
(2) House of representative appointees.--
(A) Majority appointees.--Two members shall be selected by
the Speaker of the House of Representatives, after
consultation with the chairpersons of the Committee on
Education and Labor, and the Committee on Ways and Means, of
the House of Representatives.
(B) Minority appointees.--Two members shall be selected by
the minority leader of the House of Representatives, after
consultation with the ranking minority members of such
committees.
(3) Senate appointees.--
(A) Majority appointees.--Two members shall be selected by
the majority leader of the Senate, after consultation with
the chairpersons of the Committee on Health, Education,
Labor, and Pensions, and the Committee on Finance, of the
Senate.
(B) Minority appointees.--Two members shall be selected by
the minority leader of the Senate, after consultation with
the ranking minority members of such committees.
(b) Period of Appointment; Vacancies.--Members shall be
appointed for the life of the Policy Committee. Any vacancy
in the Policy Committee shall not affect its powers, but
shall be filled in the same manner as the original
appointment.
(c) Voting; Chairperson.--
(1) Voting.--The Policy Committee shall act by the vote of
a majority of the members present.
(2) Chairperson.--The President shall select a chairperson
from among the members of the Policy Committee. The
chairperson may vote only to break a tie vote of the other
members of the Policy Committee.
(d) Duties of Policy Committee.--
(1) Meetings.--The Policy Committee shall hold its first
meeting at the call of the Secretary, not later than 30 days
after the last member is selected. Subsequent meetings of the
Policy Committee shall be held at the call of the chairperson
of the Policy Committee.
(2) General duties.--Through meetings, hearings, and
working sessions, the Policy Committee shall--
(A) make recommendations to the Secretary to facilitate the
timely convening of the Conference;
(B) submit to the Secretary a proposed agenda for the
Conference not later than 90 days after the first meeting of
the Policy Committee;
(C) determine the number of delegates to be selected in
accordance with section 5 and the manner by which the
delegates are to be selected in accordance with such section;
(D) select delegates for the Conference; and
(E) establish other advisory committees as needed to
facilitate Conference participation of--
(i) professionals with direct experience providing services
to children and families in the child welfare system; and
(ii) children and families in the child welfare system.
(e) Powers of the Policy Committee.--
(1) Information from federal agencies.--The Policy
Committee may secure directly from any Federal department or
agency such information as the Policy Committee considers
necessary to carry out this Act. Upon request of the
chairperson of the Policy Committee, the head of such
department or agency shall furnish such information to the
Policy Committee.
(2) Postal services.--The Policy Committee may use the
United States mails in the same manner and under the same
conditions as other departments and agencies of the Federal
Government.
(f) Personnel.--
(1) Travel expenses.--The members of the Council shall not
receive compensation for the performance of services for the
Council, but shall be allowed travel expenses, including per
diem in lieu of subsistence, at rates authorized for
employees of agencies under subchapter I of chapter 57 of
title 5, United States Code, while away from their homes or
regular places of business in the performance of services for
the Council. Notwithstanding section 1342 of title 31, United
States Code, the Secretary may accept the voluntary and
uncompensated services of members of the Council.
(2) Detail of government employees.--Any Federal Government
employee may be detailed to the Council without
reimbursement, and such detail shall be without interruption
or loss of civil service status or privilege.
SEC. 5. CONFERENCE DELEGATES.
To carry out the purposes of the Conference, the Secretary
shall convene delegates for the conference, who shall be
fairly balanced in terms of their points of view with respect
to child welfare, without regard to political affiliation or
past partisan activity, who shall include--
(1) the directors of child welfare systems of the States;
(2) members of the State and local family court systems,
representatives of the State bar associations, and attorneys
specializing in family law;
(3) elected officials of State and local governments; and
(4) advocates (including national and State organizations),
guardians, experts in the field of child welfare, families
and children (including youth) affected by the child welfare
system, and the general public.
[[Page S2153]]
SEC. 6. CONFERENCE ADMINISTRATION.
(a) Administration.--In conducting and planning the
Conference, the Secretary shall--
(1) request the cooperation and assistance of the heads of
such other Federal entities as may be appropriate, including
the detailing of personnel;
(2) furnish all reasonable assistance, including financial
assistance, not less than 18 months before the Secretary
convenes the Conference, to State child welfare systems,
State and local family court systems, and other appropriate
organizations, to enable them to organize and conduct State-
level child welfare conferences in conjunction with and in
preparation for participation in the Conference;
(3) prepare and make available for public comment a
proposed agenda, for the Conference, that reflects to the
greatest extent possible the major child welfare issues
facing child welfare systems and the courts, consistent with
the policy set forth in section 2(b);
(4) prepare and make available background materials that
the Secretary determines to be necessary for the use of
delegates to the Conference; and
(5) employ such additional personnel as may be necessary to
carry out this Act without regard to provisions of title 5,
United States Code, governing appointments in the competitive
service, and without regard to chapter 51 and subchapter III
of chapter 53 of such title, relating to classification and
General Schedule pay rates.
(b) Duties.--In carrying out the Secretary's
responsibilities and functions under this section, the
Secretary shall ensure that--
(1) the conferences held under subsection (a)(2) will--
(A) be conducted so as to ensure broad participation of
individuals and groups; and
(B) include conferences on Native Americans--
(i) to identify conditions that adversely affect Native
American children in the child welfare system and to identify
Native American families who are at risk of entering such
system;
(ii) to propose solutions to ameliorate such conditions;
and
(iii) to provide for the exchange of information relating
to the delivery of services to Native American children in
the child welfare system and to Native American families who
are at risk of entering such system;
(2) the proposed agenda for the Conference under subsection
(a)(3) is--
(A) published in the Federal Register not less than 180
days before the Conference is convened; and
(B) made available for public comment for a period of not
less than 60 days;
(3) the final agenda for the Conference, prepared after the
Secretary takes into consideration comments received under
paragraph (2), is published in the Federal Register, and
transmitted to the chief executive officers of the States,
not later than 30 days after the close of the public comment
period required by paragraph (2);
(4) the personnel employed under subsection (a)(5) are
fairly balanced in terms of their points of view with respect
to child welfare and are appointed without regard to
political affiliation or past partisan activity;
(5) the recommendations of the Conference are not
inappropriately influenced by any public official or special
interest, but instead are the result of the independent and
collective judgment of the delegates of the Conference; and
(6) before the Conference is convened--
(A) current and adequate statistical data (including
decennial census data) and other information on the well-
being of children in the United States; and
(B) such information as may be necessary to evaluate
Federal programs and policies relating to children;
which the Secretary may obtain by making grants to or
entering into agreements with, public agencies or nonprofit
organizations, are readily available in advance of the
Conference to the delegates.
SEC. 7. REPORT OF THE CONFERENCE.
(a) Proposed Report.--
(1) Preparation.--After consultation with the Policy
Committee, the Secretary shall prepare a proposed report of
the Conference containing--
(A) the results of the Conference, which shall include a
statement of comprehensive coherent national policy on State
child welfare systems (including the courts involved); and
(B) recommendations of the Conference for the
implementation of such policy.
(2) Publication and submission.--The proposed report shall
be published in the Federal Register, and submitted to the
chief executive officers of the States, not later than 60
days after the Conference adjourns.
(b) Response to Proposed Report.--The Secretary shall
solicit recommendations about and other comments on the
proposed report, to be submitted not later than 180 days
after the publication of the report. The Secretary shall
request that the chief executive officers of the States
submit to the Secretary, not later than 180 days after
receiving the proposed report, their views and findings on
the proposed report.
(c) Final Report.--Not later than 90 days after receiving
the comments, and the views and findings of the chief
executive officers of the States, under subsection (b), the
Secretary shall--
(1) prepare a final report of the Conference, which shall
include--
(A) a statement of the policy and recommendations of the
Conference;
(B) a compilation of the comments, and the views and
findings of the chief executive officers of the States; and
(C)(i) the recommendations of the Secretary for a
comprehensive coherent national policy on State child welfare
systems (including the courts involved), after taking into
consideration the comments, views, and findings; and
(ii) the recommendations of the Secretary for the
administrative and legislative action necessary to implement
the recommendations described in clause (i); and
(2) publish the final report in the Federal Register and
transmit the report to the President and to Congress.
SEC. 8. DEFINITIONS AND REFERENCES.
(a) Definitions.--In this Act:
(1) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(2) State.--The term ``State'' means any of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the United States Virgin Islands,
and the Commonwealth of the Northern Marianas.
(b) References.--In this Act, a reference to a child
welfare system of a State includes a reference to a child
welfare system of a tribal government.
SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There is authorized to be appropriated
$10,000,000 to carry out this Act.
(b) Limitation on Appropriations.--Authority provided in
this Act to make expenditures or to enter into contracts
under which the United States is obligated to make outlays
shall be effective only to the extent that amounts are
provided, and only to the extent of the amounts provided, in
advance in appropriations Acts.
______
By Mr. LEAHY (for himself, Mr. Hatch, Mrs. Feinstein, and Mr.
Schumer):
S. 2774. A bill to provide for the appointment of additional Federal
circuit and district judges, and for other purposes; to the Committee
on the Judiciary.
Mr. LEAHY. Mr. President, today, I join with Senator Hatch to
introduce a bipartisan bill to address the resource needs of our men
and women on the Federal judiciary and people around the country by
authorizing additional U.S. courts of appeals and district court
judgeships. It has been 18 years since the last time a comprehensive
judgeship bill was enacted to address the growth in the workload of the
Federal judiciary by adding new Federal judgeships. That legislation
established 11 additional circuit court judgeships and 61 permanent and
13 temporary district court judgeships.
Since 1990, case filings in our Federal appellate courts have
increased by 55 percent and case filings on our district courts have
risen by 29 percent. Without a comprehensive bill, Congress has
proceeded to authorize only a few additional district court judgeships
and extend temporary judgeships when it could. For instance, in 2002 we
were able to provide for 15 new judgeships in the Department of Justice
authorization bill. However no additional circuit court judgeships have
been created since 1990 despite their increased workload.
In 2006, the weighted number of filings in district courts, which
takes into account an assessment of case complexity, were 464 per
judgeship, well above the Judicial Conference's standard. The same
year, the national average circuit court caseload per three-judge panel
approached the record number of 1,230 cases, recorded a year earlier.
Our Federal judges are working harder than ever, but in order to
maintain the integrity of the Federal courts and the promptness that
justice demands, judges must have a manageable workload. The bill that
we are introducing today would add 12 permanent circuit court
judgeships, 38 permanent district court judgeships, and convert five
existing temporary judgeships into permanent positions. These
additional judgeships would address the significant increase in
caseloads that the Federal courts have seen over the nearly two decades
since the last comprehensive judgeship bill was enacted. It is based on
the recommendations of the Judicial Conference and its analysis of
caseloads and needs.
Our bipartisan bill would also add 14 temporary district court
judgeships, two temporary circuit court judgeships, and extend one
existing temporary district court judgeship. These additional temporary
judgeships allow Congress some flexibility with regard
[[Page S2154]]
to future judgeship needs. If caseloads continue to increase, Congress
has the option to introduce legislation making permanent or renewing
these temporary judgeships.
By providing that these new judgeships become effective the day after
the inauguration of the next President, we attempt to insulate this
effort from partisan politics.
This bill has the support of the Judicial Conference and Senators on
both sides of the aisle. I thank Senators Feinstein and Schumer for
joining us in this effort. A comprehensive bill to respond to the
increasing workload of our Federal judiciary is long overdue.
Mr. President, I ask unanimous consent that text of the 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. 2774
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 ``Federal Judgeship Act of
2008''.
SEC. 2. CIRCUIT JUDGES FOR THE CIRCUIT COURTS OF APPEALS.
(a) In General.--The President shall appoint, by and with
the advice and consent of the Senate--
(1) 1 additional circuit judge for the first circuit court
of appeals;
(2) 2 additional circuit judges for the second circuit
court of appeals;
(3) 2 additional circuit judges for the third circuit court
of appeals;
(4) 1 additional circuit judge for the sixth circuit court
of appeals;
(5) 2 additional circuit judges for the eighth circuit
court of appeals; and
(6) 4 additional circuit judges for the ninth circuit court
of appeals.
(b) Temporary Judgeships.--The President shall appoint, by
and with the advice and consent of the Senate, 2 additional
circuit judges for the ninth circuit court of appeals. The
first 2 vacancies arising on the court 10 years or more after
judges are first confirmed to fill both temporary circuit
judgeships created by this subsection shall not be filled.
(c) Tables.--In order that the table contained in section
44 of title 28, United States Code, will, with respect to
each judicial circuit, reflect the changes in the total
number of permanent circuit judgeships authorized as a result
of subsection (a) of this section, such table is amended to
read as follows:
Number of
``Circuits judges
District of Columbia....................................... 11
First...................................................... 7
Second..................................................... 15
Third...................................................... 16
Fourth..................................................... 15
Fifth...................................................... 17
Sixth...................................................... 17
Seventh.................................................... 11
Eighth..................................................... 13
Ninth...................................................... 33
Tenth...................................................... 12
Eleventh................................................... 12
Federal.................................................... 12.''.
SEC. 3. DISTRICT JUDGES FOR THE DISTRICT COURTS.
(a) In General.--The President shall appoint, by and with
the advice and consent of the Senate--
(1) 4 additional district judges for the district of
Arizona;
(2) 4 additional district judges for the central district
of California;
(3) 4 additional district judges for the eastern district
of California;
(4) 2 additional district judges for the northern district
of California;
(5) 1 additional district judge for the district of
Colorado;
(6) 4 additional district judges for the middle district of
Florida;
(7) 2 additional district judges for the southern district
of Florida;
(8) 1 additional district judge for the southern district
of Indiana;
(9) 1 additional district judge for the district of
Minnesota;
(10) 1 additional district judge for the western district
of Missouri;
(11) 1 additional district judge for the district of
Nebraska;
(12) 1 additional district judge for the district of New
Mexico;
(13) 3 additional district judges for the eastern district
of New York;
(14) 1 additional district judge for the western district
of New York;
(15) 1 additional district judge for the district of
Oregon;
(16) 1 additional district judge for the district of South
Carolina;
(17) 1 additional district judge for the eastern district
of Texas;
(18) 2 additional district judges for the southern district
of Texas;
(19) 1 additional district judge for the western district
of Texas;
(20) 1 additional district judge for the eastern district
of Virginia; and
(21) 1 additional district judge for the western district
of Washington.
(b) Temporary Judgeships.--The President shall appoint, by
and with the advice and consent of the Senate--
(1) 1 additional district judge for the middle district of
Alabama;
(2) 1 additional district judge for the district of
Arizona;
(3) 1 additional district judge for the central district of
California;
(4) 1 additional district judge for the northern district
of California;
(5) 1 additional district judge for the district of
Colorado;
(6) 1 additional district judge for the middle district of
Florida;
(7) 1 additional district judge for the southern district
of Florida;
(8) 1 additional district judge for the district of Idaho;
(9) 1 additional district judge for the northern district
of Iowa;
(10) 1 additional district judge for the district of
Nevada;
(11) 1 additional district judge for the district of New
Jersey;
(12) 1 additional district judge for the district of New
Mexico;
(13) 1 additional district judge for the district of
Oregon; and
(14) 1 additional district judge for the district of Utah.
For each of the judicial districts named in this subsection,
the first vacancy arising on the district court 10 years or
more after a judge is first confirmed to fill the temporary
district judgeship created in that district by this
subsection shall not be filled.
(c) Existing Judgeships.--
(1) The existing judgeships for the district of Hawaii, the
district of Kansas, and the eastern district of Missouri
authorized by section 203(c) of the Judicial Improvements Act
of 1990 (Public Law 101-650; 104 Stat. 5089) as amended by
Public Law 105-53, and the existing judgeships for the
district of Arizona and the district of New Mexico authorized
by section 312(c) of the 21st Century Department of Justice
Appropriations Authorization Act (Public Law 107-273, 116
Stat. 1758), as of the effective date of this Act, shall be
authorized under section 133 of title 28, United States Code,
and the incumbents in those offices shall hold the office
under section 133 of title 28, United States Code, as amended
by this Act.
(2) The existing judgeship for the northern district of
Ohio authorized by section 203(c) of the Judicial
Improvements Act of 1990 (Public Law 101-650, 104 Stat. 5089)
as amended by Public Law 105-53, as of the effective date of
this Act, shall be extended. The first vacancy in the office
of district judge in this district occurring 20 years or more
after the confirmation date of the judge named to fill the
temporary judgeship created by section 302(c) shall not be
filled.
(d) Tables.--In order that the table contained in section
133 of title 28, United States Code, will, with respect to
each judicial district, reflect the changes in the total
number of permanent district judgeships authorized as a
result of subsections (a) and (c) of this section, such table
is amended to read as follows:
``Districts Judges
Alabama:
Northern................................................... 7
Middle..................................................... 3
Southern................................................... 3
Alaska....................................................... 3
Arizona...................................................... 17
Arkansas:
Eastern.................................................... 5
Western.................................................... 3
California:
Northern................................................... 16
Eastern.................................................... 10
Central.................................................... 31
Southern................................................... 13
Colorado..................................................... 8
Connecticut.................................................. 8
Delaware..................................................... 4
District of Columbia......................................... 15
Florida:
Northern................................................... 4
Middle..................................................... 19
Southern................................................... 19
Georgia:
Northern................................................... 11
Middle..................................................... 4
Southern................................................... 3
Hawaii....................................................... 4
Idaho........................................................ 2
Illinois:
Northern................................................... 22
Central.................................................... 4
Southern................................................... 4
Indiana:
Northern................................................... 5
Southern................................................... 6
Iowa:
Northern................................................... 2
Southern................................................... 3
Kansas....................................................... 6
Kentucky:
Eastern.................................................... 5
Western.................................................... 4
Eastern and Western........................................ 1
Louisiana:
Eastern.................................................... 12
Middle..................................................... 3
Western.................................................... 7
Maine........................................................ 3
Maryland..................................................... 10
Massachusetts................................................ 13
Michigan:
Eastern.................................................... 15
Western.................................................... 4
Minnesota.................................................... 8
Mississippi:
Northern................................................... 3
[[Page S2155]]
Southern................................................... 6
Missouri:
Eastern.................................................... 7
Western.................................................... 6
Eastern and Western........................................ 2
Montana...................................................... 3
Nebraska..................................................... 4
Nevada....................................................... 7
New Hampshire................................................ 3
New Jersey................................................... 17
New Mexico................................................... 8
New York:
Northern................................................... 5
Southern................................................... 28
Eastern.................................................... 18
Western.................................................... 5
North Carolina:
Eastern.................................................... 4
Middle..................................................... 4
Western.................................................... 4
North Dakota................................................. 2
Ohio:
Northern................................................... 11
Southern................................................... 8
Oklahoma:
Northern................................................... 3
Eastern.................................................... 1
Western.................................................... 6
Northern, Eastern, and Western............................. 1
Oregon....................................................... 7
Pennsylvania:
Eastern.................................................... 22
Middle..................................................... 6
Western.................................................... 10
Puerto Rico.................................................. 7
Rhode Island................................................. 3
South Carolina............................................... 11
South Dakota................................................. 3
Tennessee:
Eastern.................................................... 5
Middle..................................................... 4
Western.................................................... 5
Texas:
Northern................................................... 12
Southern................................................... 21
Eastern.................................................... 8
Western.................................................... 14
Utah......................................................... 5
Vermont...................................................... 2
Virginia:
Eastern.................................................... 12
Western.................................................... 4
Washington:
Eastern.................................................... 4
Western.................................................... 8
West Virginia:
Northern................................................... 3
Southern................................................... 5
Wisconsin:
Eastern.................................................... 5
Western.................................................... 2
Wyoming...................................................... 3.''.
SEC. 4. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out the provisions of this Act, including
such sums as may be necessary to provide appropriate space
and facilities for the judicial positions created by this
Act.
SEC. 5. EFFECTIVE DATE.
(a) In General.--This Act (including the amendments made by
this Act) shall take effect on January 21, 2009.
(b) Coordination Rule.--The amendments made by this Act
shall take effect after the amendment made by section
509(a)(2) of the Court Security Improvement Act of 2007
(Public Law 110-177; 121 Stat 2543).
MR. HATCH. Mr. President, Americans are blessed to have the best and
most independent judicial system in the world. In our constitutional
framework, Congress has responsibility to both make the laws and ensure
that the judiciary tasked with interpreting and applying those laws has
the appropriate resources. This includes addressing the staffing and
compensation needs of the judicial branch, and we should strive to do
so without political gambles or speculation about the outcome of a
Presidential election.
For that reason, when I chaired the Judiciary Committee I sponsored
and cosponsored judgeship bills in 2000 when Bill Clinton was President
and in the 108th Congress under the current President. And that is why
I am cosponsoring this bill with Senator Leahy, the current Judiciary
Committee, chairman. It is based on the judicial conference's
assessment of their needs, not on backroom political deals, and it
reflects the changes to the allocation of appeals court seats made in
S. 378, the Court Security Improvement Act, which I also cosponsored.
______
By Mr. KERRY (for himself, Mr. Obama, Mr. Harkin, and Mrs.
Clinton):
S. 2775. A bill to amend the Internal Revenue Code of 1986 and the
Social Security Act to treat certain domestically controlled foreign
persons performing services under contract with the United States
Government as American employers for purposes of certain employment
taxes and benefits; to the Committee on Finance.
Mr. KERRY. Mr. President, today Representatives Ellsworth and Emanuel
and Senator Obama and I are introducing the Fair Share Act of 2008
which ends the practice of U.S. Government contractors setting up shell
companies in foreign jurisdictions to avoid payroll taxes. On March 6
2008, Farah Stockman of the Boston Globe reported that Kellogg, Brown
and Root Inc. KBR, has avoided payroll taxes by hiring workers through
shell companies in the Cayman Islands. The article estimates that
hundreds of millions of dollars in payroll taxes have been avoided a
disturbing, yet not all too surprising discovery.
KBR is an American engineering and construction company, formerly a
subsidiary of Halliburton, based in Houston, TX. Throughout its
history, KBR and its predecessors have won numerous contracts with the
United States military. In recent years, however, many of these
contracts have been called into question based on everything from
wasteful spending to mismanagement and lack of competition. The evasion
of payroll taxes is yet one more serious misstep.
The Fair Share Act of 2008 will end the practice of U.S. Government
contractors setting up shell companies in foreign jurisdictions to
avoid payroll taxes. The legislation amends the Internal Revenue Code
and the Social Security Act to treat foreign subsidiaries of U.S.
companies performing services under contract with the U.S. Government
as American employers for the purpose of Social Security and Medicare
payroll taxes. The legislation will apply to foreign subsidiaries of a
U.S. parent. The degree of common ownership applied by the legislation
is 50 percent, meaning that the U.S. parent would have to own more than
50 percent of the subsidiary.
In addition, the legislation addresses the situation in which a U.S.
subsidiary of a foreign corporation subcontracts with its foreign
subsidiary to perform a contract with the U.S Government. In this
situation, the legislation would apply to wages paid by the foreign
subsidiary to its U.S. employees. The legislation does not address the
situation in which the foreign parent contracts directly with the U.S.
Government. Present law will continue to apply to totalization
agreements. The legislation applies to services performed after the
date of enactment.
The bottom line is this: Federal contractors should not be allowed to
use tax loopholes to avoid paying U.S. Medicare and Social Security
taxes on behalf of their American employees working in Iraq.
Furthermore, KBR should not have a competitive advantage over its U.S.
competitors because it sets up sham corporations to avoid paying its
fair share of U.S. payroll taxes. Failing to contribute to Social
Security and Medicare thousands of times over is not shielding the
taxpayers they claim to protect, it is costing our citizens.
At a time when as much as $300 billion per year in taxes goes
uncollected by the government, and by some estimates more than a third
of that money may be related to corporations using offshore tax havens,
we should close every loophole possible.
Just last week, the Government Accountability Office, GAO, went to
the Caymans to investigate U.S. companies' offshore operations. The GAO
went to look at the buildings where U.S. corporations locate shell
corporations. These corporations are often nothing more than a computer
file. According to the Boston Globe, the KBR Cayman Island corporations
do not even have an office or a phone number. I commend Senators Baucus
and Grassley for requesting this investigation.
As a member of the Finance Committee, I will continue working to
close corporate loopholes that are fueled by greed. I urge my
colleagues to support ending this egregious practice.
Mr. President, I ask unanimous consent that the text of the 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. 2775
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 ``Fair Share Act of 2008''.
[[Page S2156]]
SEC. 2. CERTAIN DOMESTICALLY CONTROLLED FOREIGN PERSONS
PERFORMING SERVICES UNDER CONTRACT WITH UNITED
STATES GOVERNMENT TREATED AS AMERICAN
EMPLOYERS.
(a) FICA Taxes.--Section 3121 of the Internal Revenue Code
of 1986 (relating to definitions) is amended by adding at the
end the following new subsection:
``(z) Treatment of Certain Foreign Persons as American
Employers.--
``(1) In general.--If any employee of a foreign person is
performing services in connection with a contract between the
United States Government (or any instrumentality thereof) and
any member of any domestically controlled group of entities
which includes such foreign person, such foreign person shall
be treated for purposes of this chapter as an American
employer with respect to such services performed by such
employee.
``(2) Domestically controlled group of entities.--For
purposes of this subsection--
``(A) In general.--The term `domestically controlled group
of entities' means a controlled group of entities the common
parent of which is a domestic corporation.
``(B) Controlled group of entities.--The term `controlled
group of entities' means a controlled group of corporations
as defined in section 1563(a)(1), except that--
``(i) `more than 50 percent' shall be substituted for `at
least 80 percent' each place it appears therein, and
``(ii) the determination shall be made without regard to
subsections (a)(4) and (b)(2) of section 1563.
A partnership or any other entity (other than a corporation)
shall be treated as a member of a controlled group of
entities if such entity is controlled (within the meaning of
section 954(d)(3)) by members of such group (including any
entity treated as a member of such group by reason of this
sentence).
``(3) Liability of common parent.--In the case of a foreign
person who is a member of any domestically controlled group
of entities, the common parent of such group shall be jointly
and severally liable for any tax under this chapter for which
such foreign person is liable by reason of this subsection.
``(4) Cross reference.--For relief from taxes in cases
covered by certain international agreements, see sections
3101(c) and 3111(c).''.
(b) Social Security Benefits.--Subsection (e) of section
210 of the Social Security Act (42 U.S.C. 410(e)) is
amended--
(1) by striking ``(e) The term'' and inserting ``(e)(1) The
term'',
(2) by redesignating paragraphs (1) through (6) as
subparagraphs (A) through (F), respectively, and
(3) by adding at the end the following new paragraph:
``(2)(A) If any employee of a foreign person is performing
services in connection with a contract between the United
States Government (or any instrumentality thereof) and any
member of any domestically controlled group of entities which
includes such foreign person, such foreign person shall be
treated for purposes of this chapter as an American employer
with respect to such services performed by such employee.
``(B) For purposes of this paragraph--
``(i) The term `domestically controlled group of entities'
means a controlled group of entities the common parent of
which is a domestic corporation.
``(ii) The term `controlled group of entities' means a
controlled group of corporations as defined in section
1563(a)(1) of the Internal Revenue Code of 1986, except
that--
``(I) `more than 50 percent' shall be substituted for `at
least 80 percent' each place it appears therein, and
``(II) the determination shall be made without regard to
subsections (a)(4) and (b)(2) of section 1563 of such Code.
A partnership or any other entity (other than a corporation)
shall be treated as a member of a controlled group of
entities if such entity is controlled (within the meaning of
section 954(d)(3) of such Code) by members of such group
(including any entity treated as a member of such group by
reason of this sentence).''.
(c) Effective Date.--The amendment made by this section
shall apply to services performed after the date of the
enactment of this Act.
______
By Mr. MARTINEZ (for himself, Mr. Menendez, Mr. Nelson of
Florida, Mr. Ensign, and Mr. Coleman):
S. 2777. A bill to award a Congressional Gold Medal to Dr. Oscar
Elias Biscet, in recognition of his courageous and unwavering
commitment to democracy, human rights, and peaceful change in Cuba; to
the Committee on Banking, Housing, and Urban Affairs.
Mr. MARTINEZ. Mr. President, I ask unanimous consent that the text of
the 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. 2777
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. FINDINGS.
Congress finds that--
(1) Dr. Oscar Elias Biscet was born on July 20, 1961, in
Havana, Cuba;
(2) Dr. Biscet is married to fellow democracy advocate,
Elsa Morejon Hernandez, and he has 2 children;
(3) Dr. Biscet is currently serving a 25-year prison
sentence for allegedly committing crimes against the
sovereignty of the Cuban regime;
(4) in 1997, Dr. Biscet founded the Lawton Foundation for
Human Rights, one of the first independent civic groups in
Havana, which promotes the study, defense, and denunciation
of human rights violations inside Cuba and wherever the
rights and liberties of human beings are disregarded;
(5) as a physician, Dr. Biscet denounced the double-
standards and systematic repression of the Cuban National
Health Care System, and as a result he was forbidden from
practicing medicine;
(6) on February 27, 1999, Dr. Biscet was imprisoned for 3
years, after hanging the national flag sideways at a press
conference;
(7) although Cuban independence and democracy advocates
have always used this statement as a sign of civil
disobedience, the regime nonetheless accused Dr. Biscet of
insulting the nation's symbols, public disorder, and inciting
criminal activity;
(8) once released in 2002, and unable to practice medicine,
Dr. Biscet engaged in organizing seminars on the Universal
Declaration of Human Rights;
(9) on December 6, 2002, on his way to one such meeting, he
and several of the seminar's participants were beaten and
arrested;
(10) on April 7, 2003, Dr. Biscet was sentenced to 25 years
in prison and sent to a special state security prison, Kilo
Cinco y Medio in Pinar Del Rio province;
(11) Dr. Biscet has declared himself a ``plantado'', a
political prisoner who refuses to undertake ideological
``reeducation'' or wear a common prisoner's uniform and
therefor remains in Cuba's political gulag;
(12) on November 5, 2007, President Bush recognized Dr.
Biscet and presented him (in absentia) with the Presidential
Medal of Freedom, stating that ``Dr. Biscet is a champion in
the fight against tyranny and oppression. Despite being
persecuted and imprisoned for his beliefs, he continues to
advocate for a free Cuba in which the rights of all people
are respected.''; and
(13) Dr. Biscet is a follower of the Dalai Lama, Ghandhi,
and Martin Luther King, and continues to fight every day to
bring democracy and justice to Cuba.
SEC. 2. CONGRESSIONAL GOLD MEDAL.
(a) Presentation Authorized.--The President Pro Tempore of
the Senate and the Speaker of the House of Representatives
shall make appropriate arrangements for the presentation, on
behalf of the Congress, of a gold medal of appropriate
design, to Dr. Oscar Elias Biscet in recognition of his
courageous and unwavering commitment to democracy, human
rights, and peaceful change in Cuba.
(b) Design and Striking.--For purposes of the presentation
referred to in subsection (a), the Secretary of the Treasury
(referred to in this Act as the ``Secretary'') shall strike a
gold medal with suitable emblems, devices, and inscriptions,
to be determined by the Secretary.
SEC. 3. DUPLICATE MEDALS.
The Secretary may strike and sell duplicates in bronze of
the gold medal struck pursuant to section 2, under such
regulations as the Secretary may prescribe, at a price
sufficient to cover the cost thereof, including labor,
materials, dies, use of machinery, and overhead expenses, and
the cost of the gold medal.
SEC. 4. STATUS OF MEDALS.
(a) National Medals.--The medals struck pursuant to this
Act are national medals for purposes of chapter 51 of title
31, United States Code.
(b) Numismatic Items.--For purposes of sections 5134 and
5136 of title 31, United States Code, all medals struck under
this Act shall be considered to be numismatic items.
SEC. 5. AUTHORITY TO USE FUND AMOUNTS; PROCEEDS OF SALE.
(a) Authority To Use Fund Amounts.--There is authorized to
be charged against the United States Mint Public Enterprises
Fund such amounts as may be necessary to pay for the costs of
the medals struck pursuant to this Act.
(b) Proceeds of Sale.--Amounts received from the sale of
duplicate bronze medals authorized under section 3 shall be
deposited into the United States Mint Public Enterprises
Fund.
______
By Mr. BINGAMAN (for himself, Mr. Domenici, Mr. Salazar, Mr.
Allard, and Mr. Bennett):
S. 2779. A bill to amend the Surface Mining Control and Reclamation
Act of 1977 to clarify that uncertified States and Indian tribes have
the authority to use certain payments for certain noncoal reclamation
projects: to the Committee on Energy and Natural Resources.
Mr. BINGAMAN. Mr. President, I rise to introduce a bill important to
public health and safety and the environment in the West. This
legislation addresses a recent interpretation by the Department of the
Interior, DOI, which restricts the ability of states to use certain
funds under the Abandoned Mine
[[Page S2157]]
Land, AML, Program authorized by the Surface Mining Control and
Reclamation Act, SMCRA, for non-coal mine reclamation.
The Tax Relief and Health Care Act of 2006 contained amendments to
SMCRA reauthorizing collection of an AML fee on coal produced in the
U.S. and making certain modifications to the AML program. Under this
program, which is administered by DOI, funds are expended to reclaim
abandoned mine lands, with top priority for protecting public health,
safety, general welfare, and property and restoration of land and water
resources adversely affected by past mining practices. The program is
largely directed to abandoned coal mine reclamation, but under section
409 of SMCRA, limited funds have been available to address non-coal
mine sites.
Unfortunately, the Department of the Interior has interpreted the
amendments in a manner that limits the ability of western states to use
certain funds under SMCRA to address significant problems relating to
non-coal abandoned mines, despite the fact that these funds had
previously been available for these purposes.
Section 409 of SMCRA, provides that states may address public health
and safety hazards at abandoned mine sites, both coal and non-coal.
Western states such as New Mexico, Colorado, and Utah, have prioritized
the use of AML funds to undertake the most pressing reclamation work on
both coal and non-coal mine sites. While activities on non-coal sites
have consumed a relatively insignificant portion of the funding
provided for the overall AML program, the results in terms of public
health and safety in these states is considerable, and there is
significant work yet to be done. For example, New Mexico alone has over
15,000 remaining mine openings with a vast majority of these being non-
coal. All AML-related fatalities in the State in the last few decades
have been at non-coal mine sites.
I disagree with this interpretation by DOI. This result was not the
intention of those of us working on the SMCRA amendments, and I believe
the interpretation is in error. First, OSM's interpretation disregards
the fact that section 409 was left unamended by the Congress.
Furthermore, this interpretation is inconsistent with assurances
repeatedly given to us by OSM during the consideration of the
legislation that non-coal work could continue to be undertaken with
these AML funds. Finally, the interpretation has the unacceptable
result of requiring states to devote funds to low priority coal sites
while leaving dangerous non-coal sites unaddressed.
The bill that I am introducing today would correct this problem by
modifying the language of SMCRA to clarify that the funding would be
available for noncoal reclamation as it was prior to the passage of the
amendments in 2006. Under the bill, western, non-certified States could
continue to use the payments comprising their so-called previously
unappropriated state share balances for noncoal reclamation.
I hope that my colleagues will support this legislation, which has
important implications for abandoned mine clean-up in the West.
Mr. President, I ask unanimous consent that the text of the 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. 2779
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. ABANDONED MINE RECLAMATION.
(a) Limitation on Funds.--Section 409(b) of the Surface
Mining Control and Reclamation Act of 1977 (30 U.S.C.
1239(b)) is amended by inserting ``or section 411(h)(1)''
after ``section 402(g)''.
(b) Use of Funds.--Section 411(h)(1)(D)(ii) of the Surface
Mining Control and Reclamation Act of 1977 (30 U.S.C.
1240a(h)(1)(D)(ii)) is amended by inserting ``or 409'' after
``section 403''.
______
By Ms. STABENOW (for herself and Mr. Bunning):
S. 2781. A bill to amend title XVIII of the Social Security Act to
increase the per resident payment floor for direct graduate medical
education payments under the Medicare program; to the Committee on
Finance.
Ms. STABENOW. Mr. President, I wish to discuss a critical
infrastructure issue facing our Nation. As our population ages, we will
need more health care professionals. We are already seeing shortages in
critical areas such as nursing.
The Council on Graduate Medical Education, COGME, has also strongly
advised that we need to train more physicians. COGME recommends that
the number of physicians entering residency programs increase by 3,000
over the next 10 years to partially remedy an anticipated shortfall of
85,000 physicians by 2020.
Yet for many of my teaching hospitals, there is a problem in how
they are reimbursed through the Medicare Program for training the next
generation of doctors. Their ``graduate medical education''
reimbursement GME, is based on data collected over 30 years ago that no
longer reflects current costs and increasing needs. Over 30 Michigan
teaching hospitals lose more than $18 million a year as a result of
Medicare's outdated policy. Insufficient funding makes it very
difficult for hospitals to train a workforce sufficient to care for the
growing Medicare population.
Congress has recognized that this formula has caused unfairness in
GME payments. In 1999, Congress set a minimum payment level at 70
percent of the national average, and in 2000, Congress raised the
minimum payment level again to 85 percent of the national average.
The bill I am introducing today with my colleague, Senator Bunning,
merely raises the floor again to 100 percent of the national average
over a 3-year period. Teaching hospitals could use the additional money
to make up shortfalls or pay for additional residents to train.
I am pleased to have the support of the American Osteopathic
Association as well as many of Michigan's premier medical schools and
academic medical centers.
I look forward to working with my colleagues on ensuring that our
Nation's teaching hospitals are the envy of the world and that we have
the physician workforce we need for the future.
Mr. President, I ask unanimous consent that letters of support be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statewide campus system, Michigan State University
College of Osteopathic Medicine,
March 10, 2008.
Hon. Debbie A. Stabenow,
U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Senator Stabenow: The Statewide Campus System at
Michigan State University is a consortium of 26 hospitals in
Michigan. Its primary purpose is to provide medical education
to nearly 1,300 interns, residents, and fellows within our
state. Support for the training of these physicians comes
primarily from federal financing through the Medicare
program. We are acutely aware how our training institutions
are disadvantaged by the current operations of the DGME
payment system. Many of our hospitals receive less than the
national average from Medicare that is used to offset medical
education. Public demands for increased patient safety and
competency assessment of procedural skills performed by
residents are unfunded mandates that we are now challenged to
provide.
We are aware that Congress has addressed this issue in
piecemeal fashion in moving the reimbursement level from 70
percent to 85 percent of the locally adjusted national
average. Congress further recognized in the Medical
Modernization Act of 2003 by adding a provision that the
redistributed postdoctoral positions be reimbursed at 100
percent of the national average. The next logical step is to
level the playing field so that teaching institutions can be
compensated in accordance with their regionally adjusted
average and use the additional funds to expand our
educational commitments to residents.
The Statewide Campus System is supportive of your efforts
to introduce legislation that would increase Medicare's
Direct Medical Educational payments at 100 percent for those
hospitals whose historical costs are less than the national
average. We welcome and endorse legislation that has the same
impact sponsored in the 109th Congress, S. 2289/H.R. 4371.
Sincerely yours,
Mark Cummings, PhD,
Associate Dean, SCS.
____
University of Michigan
Health System,
March 11, 2008.
Hon. Debbie A. Stabenow,
U.S. Senate, Hart Senate Office Bldg.,
Washington, DC.
Dear Senator Stabenow: On behalf of Michigan's hospitals
disadvantaged under Medicare's Direct Graduate Medicare
Education payment system, we strongly endorse
[[Page S2158]]
your legislation to address the longstanding inequities for
graduate medical education to be introduced on the Senate
floor on March 13, 2008.
As you know, Medicare's formula for paying hospitals that
operate teaching programs is based on data from the early
1980s which are significantly below current costs and
increasing needs. Insufficient funding makes it very
difficult for hospitals to train a workforce sufficient to
care for the growing Medicare population.
In our state, 34 teaching hospitals lose more than $18
million a year as a result of Medicare's out-dated policy.
More than 600 hospitals nationwide also receive less than the
national average payment from Medicare for the direct costs
of providing graduate medical education.
Congress has addressed this problem over the past 7 years
in various incremental ways. In 2000, Congress included
provisions in the ``Medicare, Medicaid and SCHIP Benefit
Improvement and Protection Act'' (BIPA) to raise the floor
for direct graduate medical education payments from 70
percent of the locality adjusted national average to 85
percent. In the Medicare Modernization Act of 2003, Congress
again recognized the flaws in Medicare's payments to teaching
hospitals by including a provision requiring that any
resident positions redistributed to other hospitals be
reimbursed at 100 percent of the national average.
The legislation would continue on this important path by
increasing Medicare's Direct Graduate Medical Education
(DGME) payments to hospitals to 100 percent of the national
average per resident for facilities whose historical costs
are less than the national average. In short, Medicare should
pay for the average cost of operating a training program so
no hospitals receive less than Medicare's fair share of the
costs of operating a medical education program. We appreciate
your leadership on behalf of the teaching hospitals, the
physicians we train, and the patients we serve.
Sincerely,
Douglas Strong,
Chief Executive Officer, UMHHC.
American Osteopathic
Association,
Washington, DC, March 4, 2008.
Hon. Debbie Stabenow,
U.S. Senate, Hart Senate Office Building,
Washington, DC.
Hon. Jim Bunning,
U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Senators Stabenow and Bunning: On behalf of the 61,000
osteopathic physicians represented by the American
Osteopathic Association (AOA), I am pleased to inform you of
our support for your legislation, which would amend title
XVIII of the Social Security Act to increase the per resident
payment floor for direct graduate medical education payments
under the Medicare program. We applaud your leadership and
strongly support your efforts.
Numerous academic and advisory bodies, including the
Council on Graduate Medical Education (COGME), have issued
reports showing that there will be an inadequate number of
physicians to meet patient demands by the year 2020. This
shortage of physicians comes at a time when the Nation's
senior population and the number of Medicare beneficiaries is
growing at a rapid rate. While the precise number of
physicians needed is debatable, there is little doubt that
the Nation's graduate medical education system limits our
ability to meet the future physician workforce needs.
Currently, one in five medical school students in the
United States is enrolled in a college of osteopathic
medicine. The Nation's colleges of osteopathic medicine
currently graduate 3,000 new osteopathic physicians annually.
This number will increase to approximately 3,500 in 2008 and
is projected to be greater than 4,500 by 2013.
Please be assured that we are committed to educating and
training quality physicians that are capable of meeting the
health care needs of the nation. However, we must increase
the payment floor for direct graduate medical education
payments.
Again, thank you for your leadership on this issue. The AOA
and our members stand ready to assist you in securing the
enactment of this important legislation. Please do not
hesitate to call upon the AOA for assistance as you move
forward on this issue.
Sincerely,
Peter B. Ajluni, DO,
President.
____
Hon. Debbie A. Stabenow,
U.S. Senate, Hart Senate Office Bldg., Washington, DC.
Hon. Jim Bunning,
U.S. Senate, Hart Senate Office Bldg., Washington, DC.
Senators Stabenow and Bunning: On behalf of the Coalition
for DGME Fairness, thank you very much for introducing direct
graduate medical education (DGME) legislation.
We stand together in strong support of your legislation so
that we can continue to train a workforce sufficient to care
for the growing Medicare population. Medicare pays less than
its fair share for the costs of educating doctors in more
than 600 hospitals across the country.
Your legislation would address the outdated methodology and
longstanding inequity by increasing the Direct Graduate
Medical Education (DGME) payment--for hospitals whose
historical costs are less than the national average--to 100
percent of the national average per resident amount. Medicare
pays hospitals for operating teaching programs based on costs
reported in the early 1980s. These payments bear little, if
any, relationship to the actual cost of operating training
programs in the 21st century.
Twice before (1999 and 2001), Congress made incremental
improvements in DGME payments for these hospitals,
implementing a floor at 70 percent and then raising it to 85
percent of the national average. In the Medicare
Modernization Act of 2003, Congress again recognized the
flaws in Medicare's payments to teaching hospitals by
requiring that unused residency positions redistributed to
other hospitals be paid 100 percent of the national average.
This legislation would complete Congress's work to address
this inequity.
On behalf of our physicians, hospitals, and the patients we
serve, we commit to work diligently with you to see this
legislation enacted. If you have any further questions or
need to get in touch with the coalition please contact Peggy
Tighe, Partner at Strategic Health Care at 202-266-2600 or at
[email protected].
Sincerely,
Coalition for DGME Fairness.
Enclosure.
Alabama
Huntsville Hospital; University of Alabama.
Arkansas
Crittenden Memorial Hospital.
California
Cedars-Sinai Medical Center; Loma Linda University Medical
Center; Pacific Hospital Long Beach; Stanford Hospital; UCLA
Medical Center; UC San Francisco Medical Center; University
of CA Davis Medical Center; UCSD Medical Center; UCI Medical
Center; UCLA Neuropsychiatric Hospital.
Connecticut
Bridgeport Medical Center; Danbury Hospital; Hospital of
St. Raphael; Saint Francis Hospital & Medical Center; Yale
New Haven Hospital.
District of Columbia
Georgetown University Hospital.
Florida
Bayfront Medical Center; H. Lee Moffit Cancer Center; Tampa
General Hospital; Westchester General Hospital.
Illinois
Memorial Medical Center; Mercy Hospital & Medical Center;
Northwestern Memorial Hospital; St. Johns Hospital.
Indiana
Ball Memorial Hospital.
Kansas
University of Kansas Hospital.
Kentucky
Jewish Hospital; St. Mary's Mercy Medical Center;
University of Louisville; University of Kentucky Hospital.
Massachusetts
Mount Auburn Hospital; Tufts-New England Medical Center.
Maine
Maine Medical Center.
Michigan.
Botsford General Hospital; Genesys Regional Medical Center;
Henry Ford Bi-County Hospital; Henry Ford Wyandotte; Ingham
Regional Medical Center; Mount Clemens General Hospital; POH
Medical Center; St. Joseph Mercy Hospital; University of
Michigan Health System.
Minnesota
St. Mary's Medical Center.
Missouri
Des Peres Hospital; Freeman Health; St. Luke's.
North Carolina
Duke University Health System.
North Dakota
Trinity Health.
New Jersey
Monmouth Medical Center; Newark Beth Israel Medical Center;
Saint Barnabas Medical Center; UMDNJ--University Hospital;
Union Hospital.
Ohio
Cleveland Clinic Hospital; Clinton Memorial Hospital;
Doctors Hospital; Fairview Hospital; Hillcrest Hospital;
Forum Health Western Reserve; James Cancer Hospital; Medical
University of Ohio; Ohio State University Hospital; Riverside
Methodist; Southern Ohio Medical Center; South Pointe
Hospital; St. Elizabeth Health Center; St. Joseph Regional
Health Center; The University of Toledo; University
Hospitals.
Oklahoma
Hillcrest Medical Center; Oklahoma State Univ. Medical
Center; St. Anthony Hospital.
Pennsylvania
Lancaster General Hospital; Lehigh Valley Hospital;
Memorial Hospital; Millcreek Community Hospital; Robert
Parker Hospital.
Rhode Island
Miriam Hospital; Rhode Island Hospital.
Texas
JPS Health Network; Memorial Hermann Hospital System; St.
Josephs, Ryan.
Utah
Univ. of Utah Hospitals and Clinics.
[[Page S2159]]
Wisconsin
Gundersen Lutheran; Univ. of Wisconsin Hospitals & Clinics.
Mr. BUNNING. Mr. President, I am proud to be introducing legislation
today with Senator Stabenow that will benefit many of the teaching
hospitals across the Nation, including 20 facilities in the
Commonwealth of Kentucky.
Teaching hospitals play a critical role in educating, inspiring, and
preparing our young doctors to meet the challenges of their new
profession. Although necessary, this training adds to the cost of
patient care. That is why Medicare pays these hospitals for its share
of cost of training new physicians through payments known as direct
graduate medical education payments--or DGME payments.
Unfortunately, there is some inequity in how DGME payments are
calculated. The legislation we are introducing today takes steps to
adequately reimburse all hospitals for the cost of training new
physicians.
Teaching hospitals initially reported their direct costs to the
Department of Health and Human Services in the mid-1980s. These
reported amounts are now the basis for which each teaching hospital is
reimbursed.
Unfortunately, there was a disparity in the types of costs each
hospital reported, which has lead to large variations in payments
between hospitals. Hospitals are also being reimbursed on data that is
20 years old.
To help rectify this problem, in 1999 Congress established a floor
for calculating Medicare payments for DGME at 70 percent of the
national average. In 2001, Congress raised the floor to 85 percent of
the national average.
The legislation Senator Stabenow and I are introducing today would
bring all of Medicare's DGME hospitals up 100 percent of the national
average over a 3-year period. This would affect about 600 hospitals
across the Nation that are currently being reimbursed below the
national average, including the 20 in Kentucky.
I am glad we are introducing this legislation today and hope my
colleagues can take a close look at it. Adequately paying our teaching
hospitals is critically important, and this bill would benefit many
hospitals across the country.
______
By Mr. HARKIN (for himself, Mrs. Feinstein, and Mr. Kennedy):
S. 2784. A bill to amend the Federal Food, Drug and Cosmetic Act to
extend the food labeling requirements of the Nutrition Labeling and
Education Act of 1990 to enable customers to make informed choices
about the nutritional content of standard menu items in large chain
restaurants; to the Committee on Health, Education, Labor, and
Pensions.
Mr. HARKIN. Mr. President, today I am introducing a bill, the Menu
Education and Labeling Act, on behalf of myself and my colleagues, Ms.
Feinstein of California, and Mr. Kennedy of Massachusetts.
Poor nutrition and obesity are a major public health problem in the
U.S. The issue is far from merely cosmetic. It is medical and economic.
Diet-related disease are prevalent in the U.S. Cardiovascular disease,
which is the leading cause of death in the U.S., is clearly linked to
poor diets. Type-2 diabetes, results in amputation, blindness, and
premature death.
Diet is also clearly associated with rising rates of overweight and
obesity. More than 65 percent of American adults are overweight, and
more than 30 percent are clinically obese. We lead the world in this
dubious distinction, which is growing worse. Increasingly the problem
starts in childhood. According to the Institute of Medicine, since
1963, obesity rates have quadrupled among older children ages 6 to 11
years, and tripled for adolescents between the ages of 12 and 19. If we
do not change course, kids attending school today will be the first
generation in American history to live a shorter lifespan than their
parents
The obesity epidemic has far-reaching consequences. Overweight people
have an increased risk of diabetes, cardiovascular disease, cancers and
other illnesses. Sixty percent of overweight youth already have at lest
one risk factor for heart disease, which is the leading cause of death
in the U.S. Obesity also causes or contributes to $117 billion a year
in health care and related costs, more than half borne by taxpayers.
There is no single solution to the complex problem of poor nutrition
and diet-related disease, but we must start taking meaningful steps to
address this growing problem by giving people the tools necessary to
consume healthier diets. The legislation that we are introducing today
will extend nutrition labeling beyond packaged foods to include foods
at chain restaurants with 20 or more locations, as well as food in
vending machines. This common-sense idea will give consumers a needed
tool to make wiser choices and live healthier lives.
In 1990, Congress passed the Nutrition Labeling and Education Act,
NLEA, requiring food manufacturers to provide nutrition information on
nearly all packaged foods. The impact has been tremendous. Not only do
nearly three-quarters of adults use the food labels on packaged foods,
but studies indicate that consumers who read labels have healthier
diets.
American adults and children now consume a third of their calories at
restaurants and nutrition and health experts say that rising caloric
consumption and growing portion sizes are causes of obesity. However,
restaurants were excluded from the Nutrition Labeling and Education
Act. Consumers say that they would like nutrition information provided
when they order their food at restaurants, yet, while they have good
nutrition information in supermarkets, at restaurants they can only
guess.
Similarly, vending machine food sales also play a large role in
contributing to the diets of Americans. Over the last three decades
vending machine sales have shot up 85 percent after inflation. Most
vending machine sales include foods of low nutritional value.
The Menu Education and Labeling Act will require fast-food and other
chain restaurants to provide point of sale information on calories,
saturated fat, trans fat, and sodium and will require point of sale
labeling of calories on foods sold in vending machines.
I would also like to note that last night, one of the true lions of
the Senate, my old friend Howard M. Metzenbaum from Ohio, passed away.
Senator Metzenbaum was a good friend and a great senator. One of his
great achievements in the Senate is that he was the author of and the
driving force behind the Nutrition Education Labeling Act, which first
established nutrition labeling for packaged foods. The bill that we are
introducing today builds upon Senator Metzenbaum's work on nutrition
labeling, and in honor of his work and his distinguished career, I am
naming this bill after him.
Let there be no doubt: poor nutrition in America is indeed an
epidemic, and it is continuing to grow. This is a public health crisis
and we must address it. Although this bill alone will not end poor
nutrition or halt rising obesity in its tracks, it provides consumers
with an important tool with which to make better choices about the food
that they and their children consume.
F_____
By Mr. GRASSLEY:
S. 2786. A bill to amend title XVIII of the Social Security Act to
improve access to health care under the Medicare program for
beneficiaries residing in rural areas; to the Committee on Finance.
Mr. GRASSLEY. Mr. President, I am pleased to introduce the Medicare
Rural Health Access Improvement Act of 2008.
The purpose of this legislation is to continue ongoing efforts to
ensure that Americans in rural areas have access to health care
services. Much has been done in the past to improve access to rural
providers such as hospitals and doctors. Much more still needs to be
done.
I hold town meetings in each of the 99 counties in the great State of
Iowa every year. As many know, Iowa is largely a rural State, and a
significant concern that I consistently hear during these meetings is
the difficulty my constituents experience in accessing health care
services. As the former chairman and currently the ranking member of
the Finance Committee, it has, therefore, been a priority for me to
improve the availability of health care in rural areas.
In Iowa, as in many rural areas across the country, hospitals are
often
[[Page S2160]]
not only the sole provider of health care in rural areas, but also
employers and purchasers in the community. Moreover, the presence of a
hospital is essential for purposes of economic development because
businesses check to see if a hospital is in the community in which they
might set up shop. As you can see, it is vital that these institutions
are able to keep their doors open.
In previous legislation, Congress has been able to improve the
financial viability of rural hospitals. For instance, the creation and
subsequent improvements to the Critical Access Hospital designation has
greatly improved the financial health of certain small rural hospitals
and ensured that community residents have access to health care.
However, there are still a group of rural hospitals that need help. I
am referring to what are known as ``tweener'' hospitals, which are too
large to be Critical Access Hospitals, but too small to be financially
viable under the Medicare hospital prospective payment systems. These
facilities are struggling to stay afloat despite their tireless
efforts. Like in many communities across the country, the staff of
tweener hospitals and their community residents take great pride in the
quality of care at these facilities. I have heard countless stories of
the exemplary work tweener hospitals in Iowa perform not only as
providers of essential health care, but also as responsible members of
their communities. It is for this reason that many provisions in this
bill are intended to improve the financial health of tweener hospitals
and ensure that people have access to health care.
Most tweener hospital are currently designated as Medicare Dependent
Hospitals and Sole Community Hospitals under the Medicare program.
There are provisions, both temporary and permanent, included in this
bill that would improve Medicare payments for both types of hospitals.
This includes improvements to the payment methodologies so that
inpatient payments to these facilities would better reflect the costs
they incur in providing care. Improvements are also proposed in this
bill to Medicare hospital outpatient payments for both Medicare
Dependent Hospitals and Sole Community Hospitals so they would both
share the benefit of hold harmless payments and add-on payments.
Also, a major driver of the financial difficulties that tweener
hospitals face is the fact that many have relatively low volumes of
inpatient admissions. This bill would improve the existing low-volume
add-on payment for hospitals so that more rural facilities with low
volumes would receive the assistance they desperately need.
Over the years, many have commented that it is simply unfair for many
rural hospitals to receive only a limited amount of Medicare
Disproportionate Share Hospital, or DSH, payments while many urban
hospitals are not subject to such a cap. This bill would eliminate the
cap for DSH payments for those rural hospitals for a 2-year period.
There are also other provisions that would continue to help rural
hospitals. The rural flexibility program would be extended for an
additional year. Certain rural hospitals that are paid on a cost basis
for the outpatient laboratory services they provide would continue to
do so on a permanent basis. And Critical Access Hospitals that provide
outpatient laboratory services would be paid 101 percent of their costs
regardless of whether the specimen was collected from a patient of the
CAH or whether the specimen was collected in a skilled nursing facility
or clinic associated with the CAH.
This legislation also seeks to improve incentives for physicians
located in rural areas and increase beneficiaries' access to rural
health care providers. It includes provisions designed to reduce
inequitable disparities in physician payment resulting from the
Geographic Practice Cost Indices, or adjusters, known as GPCIs.
Medicare payment for physician services varies from one area to another
based on the geographic adjustments for a particular area. Geographic
adjustments are intended to reflect cost differences in a given area
compared to a national average of 1.0 so that an area with costs above
the national average would have an index greater than 1.0, and an area
below the national average would have an index less than 1.0. There are
currently three geographic adjustments: for physician work, practice
expense, and malpractice expense.
Unfortunately, the existing geographic adjusters result in
significant disparities in physician reimbursement which penalize,
rather than equalize, physician payment in Iowa and other rural states.
These geographic disparities in payment lead to rural states
experiencing significant difficulties in recruiting and retaining
physicians and other health care professionals due to their
significantly lower reimbursement rates.
These disparities have perverse effects when it comes to realigning
Medicare payment to reward quality of care. Let me put that into
context. Iowa is widely recognized as providing some of the highest
quality health care in the country yet Iowa physicians receive some of
the lowest Medicare reimbursement due to these inequitable geographic
adjustments. Medicare reimbursement for some procedures is at least 30
percent lower in Iowa than payment for those very procedures in other
parts of the country. That is a significant disincentive for Iowa
physicians who are providing some of the best quality care in the
country, and it is fundamentally unfair. Congress needs to reduce these
disparities in payment and focus on rewarding physicians who provide
high quality care.
The inequitable geographic payment formulas have also exacerbated the
problems that rural areas face in terms of access to health care. Rural
America today has far fewer physicians per capita than urban areas. The
GPCI formulas are a dismal failure in promoting an adequate supply of
physicians in States such as Iowa, and more severe physician shortages
in rural areas are predicted in the future.
The legislation I am introducing today makes changes in the GPCI
formulas for work and practice expense to reverse this trend. It
establishes a 1.0 floor for the physician work and practice expense
adjustments. It also revises the calculation of the work and practice
expense formulas to reduce payment differences and more accurately
compensate physicians in rural areas for their true practice costs. We
must act now to help rural States recruit and retain more physicians so
that beneficiaries will continue to have access to needed health care.
Congress has previously enacted a number of other provisions to
improve Medicare payment for health care professionals and providers in
rural areas that will expire soon. This bill extends the five percent
incentive payments for primary care and specialty physicians in
scarcity areas through December 2009. It also extends the existing
payment arrangements which allow independent laboratories to bill
Medicare directly for certain physician pathology services.
The bill includes several new provisions to improve beneficiary
access to health care services. It increases rural ambulance payments
by 5 percent for the next 18 months. It permanently increases the
payment limits for rural health clinics. It allows hospital-based renal
dialysis centers and skilled nursing facilities to provide telehealth
services. It also allows physician assistants to order post-hospital
extended care services and to serve hospice patients.
Finally, the bill would protect rural areas from being adversely
affected by the new Medicare competitive bidding program for durable
medical equipment. It would ensure that home medical equipment
suppliers who provide equipment and services in rural areas and small
metropolitan statistical areas, MSAs, with a population of 600,000 or
less can continue to serve the Medicare program by exempting these
areas from competitive bidding. We must ensure that rural areas
continue to have medical equipment suppliers available to serve
beneficiaries in these areas.
Mr. President, as you can see, we still have much to do when it comes
to ensuring access to health care in rural America. I look forward to
working with my colleagues on this important matter.
Mr. President, I ask unanimous consent to have printed in the Record
a summary of the bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S2161]]
Medicare Rural Health Access Improvement Act of 2008
Title I--Provisions Relating to Medicare Part A
Section 101. Extension of Medicare Rural Hospital
Flexibility Grant Program.
Current Law
Presently, the Medicare Rural Hospital Flexibility Grant
Program is authorized for $35 million from FY2005 through
FY2008.
Explanation of Provision
The provision would extend this grant program through
FY2009.
Section 102. Improvements to the Medicare Dependent Hospital
(MDH) Program.
Current Law
MDHs are small rural hospitals with a high proportion of
patients who are Medicare beneficiaries (have at least 60% of
acute inpatient days or discharges attributable to Medicare
in FY1987 or in two of the three most recently audited cost
reporting periods). An MDH cannot be a Sole Community
Hospital (SCH) and must have 100 or fewer beds. Until October
1, 2006, MDHs were paid at the wage-adjusted national
standardized amount or, if higher, 50% of their adjusted
FY1982 or FY1987 hospital specific costs. Starting for
discharges on October 1, 2006, an MDH would be able to elect
payments based on its FY2002 hospital specific costs if that
would result in higher Medicare payments. Also, starting for
discharges on October 1, 2006, an MDH that elected to be paid
using its hospital-specific costs would have its payments
based on 75% of those costs.
Explanation of Provision
Starting for discharges on October 1, 2008 until October
1, 2011, an MDH that elects to be paid using the national
standardized amount would not have that per discharge payment
amount adjusted by an area wage adjustment unless such
adjustment will result in improved payments to the MDH.
Starting for discharges on October 1, 2008 until October 1,
2011, those MDHs would have their payments based on 85% of
their hospital specific costs.
Section 103. Rebasing for Sole Community Hospitals (SCHs).
Current Law
Medicare payments to SCHs for inpatient hospital services
are made on the basis of the federal per discharge payment
amount or on the basis of its updated hospital-specific per
discharge amount from FY1982, FY1987, or FY1996, whichever
would result in the largest payment.
Explanation of Provision
Starting for discharges on October 1, 2008, SCHs would be
able to elect payment based on their FY2002 hospital-specific
payment amount per discharge. This amount would be increased
by the annual update starting in FY2008.
Section 104. Temporary Improvements to the Medicare
Inpatient Hospital Payment Adjustment for Low-volume
Hospitals.
Current Law
Under Medicare's Inpatient Prospective Payment System
(IPPS), certain low-volume hospitals receive a payment
adjustment to account for their higher costs per discharge. A
low volume hospital is defined as an acute care hospital that
is located more than 25 road miles from another comparable
hospital and that has less than 800 total discharges during
the fiscal year. Under current law, the Secretary is required
to determine an appropriate percentage increase for these
low-volume hospitals based on the empirical relationship
between the standardized cost-per-case for such hospitals and
their total discharges to account for the additional
incremental costs (if any) that are associated with such
number of discharges. The low-volume adjustment is limited to
no more than 25 percent. Accordingly, under regulations,
qualifying hospitals (those located more than 25 road miles
from another comparable hospital) with less than 200 total
discharges receive a 25% payment increase for every Medicare
discharge.
Explanation of Provision
This provision would make a temporary adjustment that
would provide payments in FY2009 and FY2010 to more low-
volume hospitals. A low-volume hospital could be located more
than 15 road miles from another comparable hospital and have
2,000 discharges of individuals entitled to or enrolled for
Medicare Part A benefits. The Secretary would determine the
applicable percentage increase using a linear sliding scale
ranging from 25% for low-volume hospitals below a certain
threshold to no adjustment for hospitals with greater than
2,000 discharges of individuals with Medicare Part A
benefits.
Section 105. Temporarily Lifting the Disproportionate Share
Hospital (DSH) Adjustment Cap.
Current Law
Medicare will increase its payments to hospitals that
qualify for a DSH adjustment. In many instances, the size of
a hospital's DSH adjustment will depend upon the number of
patient days provided to poor Medicare patients or Medicaid
patients (DSH patient share). However, small urban hospitals
and many rural hospitals have their DSH adjustment capped at
12%.
Explanation of Provision
The provision would eliminate the DSH adjustment cap for
these hospitals for discharges occurring in FY2009 and
FY2010. For discharges on or after October 1, 20010, the DSH
adjustment cap would revert to 12%.
Title II--Provisions Relating to Medicare Part B
Section 201. Extension and Expansion of the Medicare
Hospital Outpatient Department Hold Harmless Provision
for Small Rural Hospitals.
Current Law
Small rural hospitals (with no more than 100 beds) that
are not Sole Community Hospitals (SCHs) can receive
additional Medicare payments if their outpatient payments
under the prospective payment system are less than under the
prior reimbursement system. For CY2006, these hospitals will
receive 95% of the difference between payments under the
prospective payment system and those that would have been
made under the prior reimbursement system. The hospitals will
receive 90% of the difference in CY2007 and 85% of the
difference in CY2008.
Explanation of Provision
The provision would establish that in CY 2009 and CY 2010,
small rural hospitals, including Medicare Dependent Hospitals
and SCHs, would receive 100% of the difference between
payments made under the Medicare Hospital Outpatient
Prospective Payment System and those made under the prior
reimbursement system.
Section 202. Expansion of the Medicare Hospital Outpatient
Department Add-on Payment for Rural Sole Community
Hospitals (SCHs).
Current Law
Under Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (MMA), the Secretary was required
to study to determine whether the costs incurred by rural
hospitals were greater than urban hospitals and whether the
prospective payment system (PPS) for hospital outpatient
departments (HOPD) accounted for those cost differences. The
Secretary was authorized to provide a payment adjustment for
rural hospitals by January 1, 2006 if such an adjustment was
warranted. Starting in CY2006, rural SCHs have had their
Medicare payments for outpatient services increased by 7.1%.
Explanation of Provision
This provision would establish that the Secretary's
authority to provide a payment adjustment would apply to
services furnished in 2006, 2007 and 2008. The Medicare
statute would be amended so that SCHs and Medicare Dependent
Hospitals (MDHs) in rural areas would receive a 7.1% increase
in payments for covered HOPD services for services starting
January 1, 2009. The increase would be applied before
calculating outliers and coinsurance. The Secretary would be
able to revise this percentage starting for services
furnished after January 1, 2010 through promulgation of a
regulation. The increase would not apply to pass-through
drugs and biologicals. The increased payments as they relate
to SCHs and MDHs would not be implemented in a budget-neutral
manner.
Section 203. Permanent Treatment of Medicare Reasonable
Costs Payments for Certain Clinical Diagnostic Laboratory
Tests Furnished to Hospital Patients in Certain Rural
Areas.
Current Law
Generally, hospitals that provide clinical diagnostic
laboratory services under Part B are reimbursed using a fee
schedule. Hospitals with under 50 beds in qualified rural
areas (certain rural areas with low population densities)
receive 100% of reasonable cost reimbursement for the
clinical diagnostic laboratories covered under Part B that
are provided as outpatient hospital services. Reasonable cost
reimbursement for laboratory services provided by these
hospitals will expire on July 1, 2008.
Explanation of Provision
This provision would add Section 1833(v) to the Social
Security Act which would make reasonable cost reimbursement
for laboratory services provided by qualified rural hospitals
permanent starting July 1, 2008. The Secretary would be
required to apply the current rules that are used to
determine whether clinical diagnostic laboratory services are
furnished as an outpatient Critical Access Hospital service
(without regard to amendments enacted in this legislation.)
Section 204. Clarification of Payment for Clinical
Laboratory Tests Furnished by Critical Access Hospitals
(CAHs).
Current Law
Medicare outpatient covered clinical laboratory services
are generally paid based on a fee schedule. Clinical
diagnostic laboratory services provided to patients who
receive services directly from CAHs on an outpatient basis
are paid 101% of reasonable costs. Clinical laboratory
services provided by CAHs to those who are not patients are
paid on the basis of the Medicare fee schedule. In no
instance are Medicare beneficiaries liable for any
coinsurance or deductible amounts.
Explanation of Provision
Under this provision, clinical diagnostic laboratory
services furnished by a CAH starting in January 1, 2009 would
be reimbursed at 101% of costs as outpatient hospital
services without regard to whether the specimen was collected
from a patient of the CAH or whether the specimen was
collected in a skilled nursing facility or clinic that is
owned by or co-located with the CAH.
[[Page S2162]]
Section 205. Extension of Medicare Incentive Payment Program
for Physician Scarcity Areas.
Current Law
MMA provided for an additional 5% in payments for certain
physicians in scarcity areas for the period January 1, 2005
through December 31, 2007. The Medicare, Medicaid, and SCHIP
Extension Act of 2007 (MMSEA) extended these payments through
June 30, 2008. The Secretary was required to calculate,
separately for practicing primary care physicians and
specialists, the ratios of such physicians to Medicare
beneficiaries in the county, rank each county (or equivalent
area) according to its ratio for primary care and specialists
separately, and then identify those scarcity areas with the
lowest ratios which collectively represented 20% of the total
Medicare beneficiary population in those areas. The list of
counties was to be revised no less often than once every
three years unless there were no new data. There would be no
administrative or judicial review of the designation of the
county or area as a scarcity area, the designation of an
individual physician's specialty, or the assignment of a
postal zip code to the county or other area. The listing of
counties appeared in Appendix I and Appendix J of the 2005
physician fee schedule update.
Explanation of Provision
The provision would extend the add-on payments through
December 31, 2009.
Section 206. Revisions to the Work Geographic Adjustment
Under the Medicare Physician Fee Schedule.
Current Law
Medicare's physician fee schedule assigns relative values
to services that reflect physician work (i.e., the time,
skill, and intensity it takes to provide the service),
practice expenses, and malpractice costs. The relative values
are adjusted for geographic variations in costs. The adjusted
relative values are then converted into a dollar payment
amount by a conversion factor.
The geographic adjustment factors are indices that reflect
the relative cost difference in a given area in comparison to
a national average. An area with costs above the national
average would have an index greater than 1.00 while an area
with costs below the average would have an index below 1.00.
The physician work geographic adjustment factor is based on a
sample of median hourly earnings in six professional
specialty occupational categories. Unlike the other
geographic adjustments, the work adjustment factor reflects
only one-quarter of the cost differences in an area. The
Secretary is required to periodically review and adjust the
geographic indices.
MMA required the Secretary to increase the value of any
work geographic index that was below 1.00 to 1.00 for
services furnished on or after January 1, 2004 and before
January 1, 2007. TRHCA extended the provision for an
additional year, through December 31, 2008, and MMSEA
extended the provision for an additional six months, for
services provided before July 1, 2008.
Explanation of Provision
Subsection (a) would extend the 1.0 work floor through
December 31,2009. Subsection (b) would recognize the equality
of physician work in all geographic areas and eliminate
differing work index values by establishing a national value
of 1.0, effective 2010.
Section 207. Revisions to the Practice Expense Geographic
Adjustment Under the Medicare Physician Fee Schedule.
Current Law
Medicare's physician fee schedule assigns relative values
to services that reflect physician work (i.e., the time,
skill, and intensity it takes to provide the service),
practice expenses, and malpractice costs. The relative values
are adjusted for geographic variations in costs. The adjusted
relative values are then converted into a dollar payment
amount by a conversion factor.
The geographic adjustment factors are indices that reflect
the relative cost difference in a given area in comparison to
a national average. An area with costs above the national
average would have an index greater than 1.00 while an area
with costs below the average would have an index below 1.00.
The practice expense geographic adjustment is calculated by
measuring variations in employee wages, office rents, and
miscellaneous. The Secretary is required to periodically
review and adjust the geographic indices.
Explanation of Provision
Subsection (a) would establish a practice expense floor of
1.0 for 2009 by requiring the Secretary to increase the value
of any practice expense geographic index that was below 1.0
to 1.0 for services furnished on or after January 1, 2009 and
before January 1, 2010. Subsection (b) would reduce the
geographic adjustment for practice expense to 50 percent of
the current adjustment for employee wages and rent, effective
2010.
Section 208. Extension of Treatment of Certain Physician
Pathology Services Under Medicare.
Current Law
BBA 97 specified that independent labs that had agreements
with hospitals on July 22, 1999, to bill directly for the
technical component of pathology services could continue to
do so in 2001 and 2002. The provision has been periodically
extended. TRHCA extended the provision through 2007, and
MMSEA further extended it through June 30, 2008.
Explanation of Provision
The provision would be extended through December 31, 2009.
Section 209. Extension of Increased Medicare Payments for
Rural Ground Ambulance Services.
Current Law
Ambulance services are paid on the basis of a national fee
schedule, which is being phased in. The fee schedule
establishes seven categories of ground ambulance services and
two categories of air ambulance services. The payment for a
service equals a base rate for the level of service plus
payment for mileage. Geographic adjustments are made to a
portion of the base rate.
Explanation of Provision
The provision would provide for an increase in the rates
otherwise established for ground ambulance services of 5% in
rural areas for the period July 1, 2008-December 31, 2009.
Sec. 210. Adding Hospital-Based Renal Dialysis Centers
(Including Satellites) As Originating Sites for Payment
of Telehealth Services.
Current Law
Medicare may cover a telehealth service for beneficiaries
who are located (i) in an area designated as a rural health
professional shortage area; (ii) in a county that is not
included in a Metropolitan Statistical Area; or (iii) at an
entity that participates in a federal telemedicine
demonstration project that has been approved by (or receives
funding from) the Secretary of Health and Human Services as
of December 31, 2000. If a beneficiary is located in those
areas, counties, or entities, then the beneficiary is
permitted to receive telemedicine at one of the following
sites: (1) a physician or practitioner's office; (ii) a
critical access hospital; (iii) a rural health clinic; (iv) a
federally qualified health center; or (v) a hospital.
Explanation of Provision
This provision would permit a hospital-based or critical
access hospital-based renal dialysis center (including
satellites) to serve as a telemedicine site. The provision
would be effective for services furnished on or after January
1, 2009.
Section 211. Expansion of Telehealth Services to Skilled
Nursing Facilities.
Current Law
Medicare covers certain services including professional
consultations, office and other outpatient visits, individual
psychotherapy, pharmacological management, psychiatric
diagnostic interview examinations and end stage renal disease
related services delivered via an eligible telecommunications
system. The originating site (the location of the beneficiary
receiving the telehealth service) can be a physician or
practitioner's office, a critical access hospital, a rural
health clinic, a federally qualified health center, or a
hospital. The originating site must be in a rural health
professional shortage area or in a county that is not in a
metropolitan statistical area or at an entity that
participates in a specified federal telemedicine
demonstration project.
Explanation of Provision
The provision would permit otherwise qualifying skilled
nursing facilities to be the originating site for the
provision of covered telehealth services furnished on or
after January 1, 2009.
Section 212. Rural Health Clinic Improvements.
Current Law
Most rural health clinics (RHCs) receive cost-based
reimbursement from Medicare, subject to per-visit payment
limits and certain productivity standards. Each year the
limit is increased by the percentage increase in the Medicare
Economic Index (MEI). For CY2007, the RHC upper payment limit
is $74.29 per visit.
Explanation of Provision
The provision would establish the RHC upper payment limit
at $92 per visit in 2009. The limit would be increased in
subsequent years by the limit established for the previous
year increased by the percentage increase in the MEI
applicable to primary care services.
Section 213. Exemption for suppliers in small MSAs and rural
areas.
Current Law
The MMA established Medicare competitive bidding for
durable medical equipment, supplies, and other items. The
Secretary is required to establish competitive acquisition
areas, but has discretion to exempt rural areas and areas
with low population density within urban areas that are not
competitive, unless a significant national market exists
through mail order for a particular item or service. The
programs are required to be phased-in so that competition
under the programs occurs in 10 of the largest metropolitan
statistical areas (MSAs) beginning in 2007, 80 of the largest
MSAs in 2009, and remaining areas after 2009.
Explanation of Provision
The provision would require the Secretary to exempt rural
areas and small MSAs with a population of 600,000 or less.
Competitively bid prices would not apply to rural and small
MSAs exempted under this section. The provision would be
effective as if included in the MMA, other than for contracts
entered into pursuant to implementation of competitive
bidding prior to September 1, 2008.
[[Page S2163]]
Section 214. Permitting Physician Assistants to Order Post-
Hospital Extended Care Services and to Provide for
Recognition of Attending Physician Assistants as
Attending Physicians to Serve Hospice Patients.
(a) Ordering Post-Hospital Extended Care Services.
Current Law
In a skilled nursing facility (SNF), Medicare law allows
physicians, as well as nurse practitioners and clinical nurse
specialists who do not have a direct or indirect employment
relationship with a SNF, but who are working in collaboration
with a physician, to certify the need for post-hospital
extended care services for purposes of Medicare payment.
Section 20.2.1 of Chapter 8 of the Medicare Benefit Policy
Manual defines post-hospital extended care services as
services provided as an extension of care for a condition for
which the individual received inpatient hospital services.
Extended care services are considered ``post-hospital'' if
they are initiated within 30 days after discharge from a
hospital stay that included at least three consecutive days
of medically necessary inpatient hospital care.
Explanation of Provision
The provision would allow a physician assistant who does
not have a direct or indirect employment relationship with a
SNF, but who is working in collaboration with a physician, to
certify the need for post-hospital extended care services for
Medicare payment purposes.
(b) Recognition of Attending Physician Assistants as
Attending Physicians to Serve Hospice Patients.
Current Law
Under the Medicare program, hospice services may only be
provided to terminally ill individuals under a written plan
of care established and periodically reviewed by the
individual's attending physician and the medical director
(and by the interdisciplinary group of the hospice program).
For purposes of a hospice written plan of care, Medicare
defines an attending physician as a physician or nurse
practitioner who may be employed by a hospice program and who
the individual identifies as having the most significant role
in the determination and delivery of medical care to the
individual at the time the individual makes an election to
receive hospice care.
For an individual to be eligible for Medicare-covered
hospice services, the individual's attending physician (not
including a nurse practitioner) and the medical director (or
physician member of the interdisciplinary group of the
hospice program) must each certify in writing that the
individual is terminally ill at the beginning of the first
90-day period of hospice.
Explanation of Provision
For purposes of a hospice written plan of care, the
provision would include a physician assistant in the
definition of an attending physician. The provision would
continue to exclude physician assistants from the authority
to certify an individual as terminally ill.
Both provisions would apply to items and services furnished
on or after January 1, 2009.
______
By Ms. MIKULSKI (for herself, Ms. Klobuchar, Ms. Stabenow, Mr.
Coleman, Mr. Harkin, Mr. Casey, Mr. Sanders, Mr. Schumer, Mr.
Cardin, Mr. Brown, Ms. Collins, Mr. Leahy, Mrs. Clinton, Mr.
Levin, Mr. Kennedy, Mr. Kerry, Mrs. Boxer, Mr. Reid, and Mr.
Bingaman):
S.J. Res. 30. A joint resolution providing for congressional
disapproval under chapter 8 of title 5, United States Code, of the rule
submitted by the Centers for Medicare & Medicaid Services within the
Department of Health and Human Services relating to optional State plan
case management services under the Medicaid program; to the Committee
on Finance.
Ms. MIKULSKI. Mr. President, I ask unanimous consent that the text of
the joint resolution be printed in the Record.
There being no objection, the text of the joint resolution was
ordered to be printed in the Record, as follows:
S.J. Res. 30
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That Congress
disapproves the rule submitted by the Centers for Medicare &
Medicaid Services within the Department of Health and Human
Services relating to optional State plan case management
services under the Medicaid program (published at 72 Fed.
Reg. 68077 (December 4, 2007)), and such rule shall have no
force or effect.
____________________