[Congressional Record Volume 154, Number 51 (Wednesday, April 2, 2008)]
[Senate]
[Pages S2348-S2362]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. DURBIN (for himself, Ms. Snowe, Mrs. Lincoln, and Mr.
Coleman):
S. 2795. A bill to amend the Public Health Service Act to establish a
nationwide health insurance purchasing pool for small businesses and
the self employed that would offer a choice of private health plans and
make health coverage more affordable, predictable, and accessible; to
the Committee on Finance.
Mr. DURBIN. 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. 2795
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Small Business Health
Options Program Act of 2008'' or the ``SHOP Act''.
SEC. 2. AMENDMENT TO THE PUBLIC HEALTH SERVICE ACT.
The Public Health Service Act (42 U.S.C. 201 et seq.) is
amended by adding at the end the following:
``TITLE XXX--SMALL BUSINESS HEALTH OPTIONS PROGRAM
``SEC. 3001. DEFINITIONS.
``(a) In General.--In this title:
``(1) Administrator.--The term `Administrator' means the
Administrator appointed under section 3002(a).
``(2) Small business health board.--The term `Small
Business Health Board' means the Board established under
section 3002(d).
``(3) Employee.--The term `employee' has the meaning given
such term under section 3(6) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1002(6)). Such term
shall not include an employee of the Federal Government.
``(4) Employer.--The term `employer' has the meaning given
such term under section 3(5) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1002(5)), except that
such term shall include employers who employed an average of
at least 1 but not more than 100 employees (who worked an
average of at least 35 hours per week) on business days
during the year preceding the date of application, and shall
include self-employed individuals with either not less than
$5,000 in net earnings or not less than $15,000 in gross
earnings from self-employment in the preceding taxable year.
Such term shall not include the Federal Government.
``(5) Health insurance coverage.--The term `health
insurance coverage' has the meaning given such term in
section 2791.
``(6) Health insurance issuer.--The term `health insurance
issuer' has the meaning given such term in section 2791.
``(7) Health status-related factor.--The term `health
status-related factor' has the meaning given such term in
section 2791(d)(9).
``(8) Participating employer.--The term `participating
employer' means an employer that--
``(A) elects to provide health insurance coverage under
this title to its employees; and
``(B) is not offering other comprehensive health insurance
coverage to such employees.
``(b) Application of Certain Rules in Determination of
Employer Size.--For purposes of subsection (a)(3):
``(1) Application of aggregation rule for employers.--All
persons treated as a single employer under subsection (b),
(c), (m), or (o) of section 414 of the Internal Revenue Code
of 1986 shall be treated as 1 employer.
``(2) Employers not in existence in preceding year.--In the
case of an employer which was not in existence for the full
year prior to the date on which the employer applies to
participate, the determination of whether such employer meets
the requirements of subsection (a)(4) shall be based on the
average number of employees that it is reasonably expected
such employer will employ on business days in the employer's
first full year.
``(3) Predecessors.--Any reference in this subsection to an
employer shall include a reference to any predecessor of such
employer.
``(c) Waiver and Continuation of Participation.--
``(1) Waiver.--The Administrator may waive the limitations
relating to the size of an employer which may participate in
the health insurance program established under this title on
a case by case basis if the Administrator determines that
such employer makes a compelling case for such a waiver.
[[Page S2349]]
In making determinations under this paragraph, the
Administrator may consider the effects of the employment of
temporary and seasonal workers and other factors.
``(2) Continuation of participation.--An employer
participating in the program under this title that
experiences an increase in the number of employees so that
such employer has in excess of 100 employees, may not be
excluded from participation solely as a result of such
increase in employees.
``(d) Treatment of Health Insurance Coverage as Group
Health Plan.--Health insurance coverage offered under this
title shall be treated as a group health plan for purposes of
applying the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1001 et seq.) except to the extent that a
provision of this title expressly provides otherwise.
``(e) Application of HIPAA Rules.--Notwithstanding any
provision of State law, the provisions of subparts 1, 3, and
4 of part A of title XXVII shall apply to health insurance
coverage offered under this title. A State may modify State
law as appropriate to provide for the enforcement of such
provisions for health insurance coverage offered in the State
under this title.
``SEC. 3002. ADMINISTRATION OF SMALL BUSINESS HEALTH
INSURANCE POOL.
``(a) Office and Administrator.--The Secretary shall
designate an office within the Department of Health and Human
Services to administer the program under this title. Such
office shall be headed by an Administrator to be appointed by
the Secretary.
``(b) Qualifications.--The Secretary shall ensure that the
individual appointed to serve as the Administrator under
subsection (a) has an appropriate background with experience
in health insurance, business, or health policy.
``(c) Duties.--The Administrator shall--
``(1) enter into contracts with health insurance issuers to
provide health insurance coverage to individuals and
employees who enroll in health insurance coverage in
accordance with this title;
``(2) maintain the contracts for health insurance policies
when an employee elects which health plan offered under this
title to enroll in as permitted under section 3007(d)(7);
``(3) ensure that health insurance issuers comply with the
requirements of this title;
``(4) ensure that employers meet eligibility requirements
for participation in the health insurance pool established
under this title;
``(5) enter into agreements with entities to serve as
navigators, as defined in section 3003;
``(6) collect premiums from employers and employees and
make payments for health insurance coverage;
``(7) collect other information needed to administer the
program under this title;
``(8) compile, produce, and distribute information (which
shall not be subject to review or modification by the States)
to employers and employees (directly and through navigators)
concerning the open enrollment process, the health insurance
coverage available through the pool, and standardized
comparative information concerning such coverage, which shall
be available through an interactive Internet website,
including a description of the coverage plans available in
each State and comparative information, about premiums, index
rates, benefits, quality, and consumer satisfaction under
such plans;
``(9) provide information to health insurance issuers,
including, at the discretion of the Administrator,
notification when proposed rates are not in a competitive
range;
``(10) conduct public education activities (directly and
through navigators) to raise the awareness of the public of
the program under this title and the associated tax credit
under the Internal Revenue Code of 1986;
``(11) develop methods to facilitate enrollment in health
insurance coverage under this title, including through the
use of the Internet;
``(12) if appropriate, enter into contracts for the
performance of administrative functions under this title as
permitted under section 3009;
``(13) carefully consider benefit recommendations that are
endorsed by at least two-thirds of the members of the Small
Business Health Board;
``(14) establish and administer a contingency fund for risk
corridors as provided for in section 3008; and
``(15) carry out any other activities necessary to
administer this title.
``(d) Limitations.--The Administrator shall not--
``(1) negotiate premiums with participating health
insurance issuers; or
``(2) exclude health insurance issuers from participating
in the program under this title except for violating
contracts or the requirements of this title.
``(e) Small Business Health Board.--
``(1) In general.--There shall be established a Small
Business Health Board to monitor the implementation of the
program under this title and to make recommendations to the
Administrator concerning improvements in the program.
``(2) Appointment.--The Comptroller General shall appoint
13 individuals who have expertise in health care benefits,
financing, economics, actuarial science or other related
fields, to serve as members of the Small Business Health
Board. In appointing members under the preceding sentence,
the Comptroller General shall ensure that such members
include--
``(A) a mix of different types of professionals;
``(B) a broad geographic representation;
``(C) not less than 3 individuals with an employee
perspective;
``(D) not less than 3 individuals with a small business
perspective, at least 1 of whom shall have a self-employed
perspective; and
``(E) not less than 1 individual with a background in
insurance regulation.
``(3) Terms.--Members of the Small Business Health Board
shall serve for a term of 3 years, such terms to end on March
15 of the applicable year, except as provided in paragraph
(4). The Comptroller General shall stagger the terms for
members first appointed. A member may be reappointed after
the expiration of a term. A member may serve after expiration
of a term until a successor has been appointed.
``(4) Small business representatives.--Beginning on March
16, 2012, 3 of the individuals the Comptroller General
appoints to the Small Business Health Board shall be
representatives of the 3 navigators through which the largest
number of individuals have enrolled for health insurance
coverage over the previous 2-year period. Such appointees
shall serve for 1 year. The Comptroller General shall
consider for appointment in years prior to the date specified
in this paragraph, individuals who are representatives of
entities that may serve as navigators.
``(5) Chairperson; vice chairperson.--The Comptroller
General shall designate a member of the Small Business Health
Board, at the time of appointment of such member, to serve as
Chairperson and a member to serve as Vice Chairperson for the
term of the appointment, except that in the case of a vacancy
of either such position, the Comptroller General may
designate another member to serve in such position for the
remainder of such member's term.
``(6) Compensation.--While serving on the business of the
Small Business Health Board (including travel time), a member
of the Small Business Health Board shall be entitled to
compensation at the per diem equivalent of the rate provided
for level IV of the Executive Schedule under section 5315 of
title 5, United States Code, and while so serving away from
home and the member's regular place of business, a member may
be allowed travel expenses, as authorized by the Chairperson
of the Small Business Health Board.
``(7) Disclosure.--The Comptroller General shall establish
a system for the public disclosure, by members of the Small
Business Health Board, of financial and other potential
conflicts of interest.
``(8) Meetings.--The Small Business Health Board shall meet
at the call of the Chairperson. Each such meeting shall be
open to the public.
``(9) Duties.--The Small Business Health Board shall--
``(A) provide general oversight of the program under this
title and make recommendations to the Administrator;
``(B) monitor and make recommendations to the Administrator
on the benefit requirements for national plans in this title;
``(C) make recommendations concerning information that the
Administrator, health plans, and navigators should distribute
to employers and employees participating in the program under
this title; and
``(D) monitor and make recommendations to the Administrator
on adverse selection within the program under this title and
between the coverage provided under the program and the
State-regulated health insurance market.
``(10) Approval of recommendations.--A recommendation shall
require approval by not less than two-thirds of the members
of the Board.
``(11) Public notice and comment on recommendations.--The
Administrator shall--
``(A) publish recommendations by the Small Business Health
Board in the Federal Register;
``(B) solicit written comments concerning such
recommendations; and
``(C) provide an opportunity for the presentation of oral
comments concerning such recommendations at a public meeting.
``SEC. 3003. NAVIGATORS.
``(a) In General.--The Administrator shall enter into
agreements with private and public entities, beginning a
reasonable period prior to the beginning of the first
calendar year in which health insurance coverage is offered
under this title, under which such entities will serve as
navigators.
``(b) Eligibility.--To be eligible to enter into an
agreement under subsection (a), an entity shall demonstrate
to the Administrator that the entity has existing
relationships with, or could readily establish relationships
with, employers and employees, and self-employed individuals,
likely to be eligible to participate in the program under
this title. Such entities may include trade, industry and
professional associations, chambers of commerce, unions,
small business development centers, and other entities that
the Administrator determines to be capable of carrying out
the duties described in subsection (c).
``(c) Duties.--An entity that serves as a navigator under
an agreement under subsection (a) shall--
``(1) coordinate with the Administrator on public education
activities to raise awareness of the program under this
title;
``(2) distribute information developed by the Administrator
on the open enrollment process, private health plans
available
[[Page S2350]]
through the program under this title, and standardized
comparative information about the health insurance coverage
under the program;
``(3) distribute information about the availability of the
tax credit under section 36 of the Internal Revenue Code of
1986 as added by the Small Business Health Options Program
Act of 2008;
``(4) assist employers and employees in enrolling in the
program under this title; and
``(5) respond to questions about the program under this
title and participating plans.
``(d) Supplemental Materials.--In addition to information
developed by the Administrator under subsection (c)(2), a
navigator may develop and distribute other information that
is related to the health insurance program established under
this title, subject to review and approval by the
Administrator and filing in each State in which the navigator
operates.
``(e) Standards.--
``(1) In general.--The Administrator shall establish
standards for navigators under this section, including
provisions to avoid conflicts of interest. Under such
standards, a navigator may not--
``(A) be a health insurance issuer; or
``(B) receive any consideration directly or indirectly from
any health insurance issuer in connection with the
participation of any employer in the program under this title
or the enrollment of any eligible employee in health
insurance coverage under this title.
``(2) Fair and impartial information and services.--The
Administrator shall consult with the Small Business Health
Board concerning the standards necessary to ensure that a
navigator will provide fair and impartial information and
services. An agreement between the Administrator and a
navigator may include specific provisions with respect to
such navigator to ensure that such navigator will provide
fair and impartial information and services. If a navigator,
or entity seeking to become a navigator, is a party to any
arrangement with any health insurance issuer to receive
compensation related to other health care programs not
covered under this title, the entity shall disclose the terms
of such compensation arrangements to the Administrator, and
the Administrator shall take such information into account in
determining the appropriate standards and agreement terms for
such navigator.
``SEC. 3004. CONTRACTS WITH HEALTH INSURANCE ISSUERS.
``(a) In General.--The Administrator may enter into
contracts with qualified health insurance issuers, without
regard to section 5 of title 41, United States Code, or other
statutes requiring competitive bidding, to provide health
benefits plans to employees of participating employers and
self-employed individuals under this title. Each contract
shall be for a uniform term of at least 1 year, but may be
made automatically renewable from term to term in the absence
of notice of termination by either party. In entering into
such contracts, the Administrator shall ensure that health
benefits coverage is provided for an individual only, two
adults in a household, one adult and one or more children,
and a family.
``(b) Eligibility.--A health insurance issuer shall be
eligible to enter into a contract under subsection (a) if
such issuer--
``(1) is licensed to offer health benefits plan coverage in
each State in which the plan is offered; and
``(2) meets such other reasonable requirements as
determined appropriate by the Administrator, after an
opportunity for public comment and publication in the Federal
Register.
``(c) Cost-Sharing and Networks.--The Administrator shall
ensure that health benefits plans with a range of cost-
sharing and network arrangements are available under this
title.
``(d) Revocation.--Approval of a health benefits plan
participating in the program under this title may be
withdrawn or revoked by the Administrator only after notice
to the health insurance issuer involved and an opportunity
for a hearing without regard to subchapter II of chapter 5
and chapter 7 of title 5, United States Code.
``(e) Conversion.--
``(1) In general.--Except as provided in paragraph (2), a
contract may not be made or a plan approved under this
section if the health insurance issuer under such contract or
plan does not provide to each enrollee whose coverage under
the plan is terminated, including a termination due to
discontinuance of the contract or plan, the option to have
issued to that individual a nongroup policy without evidence
of insurability. A health insurance issuer shall provide a
notice of such option to individuals who enroll in the plan.
An enrollee who exercises such conversion option shall pay
the full periodic charges for the nongroup policy.
``(2) Exceptions.--A health insurance issuer shall not be
required to offer a nongroup policy under paragraph (1) if
the termination under the plan occurred because--
``(A) the enrollee failed to pay any required monthly
premiums under the plan;
``(B) the enrollee performed an act or practice that
constitutes fraud in connection with the coverage under the
plan;
``(C) the enrollee made an intentional misrepresentation of
a material fact under the terms of coverage of the plan; or
``(D) the terminated coverage under the plan was replaced
by similar coverage within 31 days after the date of
termination.
``(f) Payment of Premiums.--
``(1) In general.--Employers shall collect premium payments
from their employees through payroll deductions and shall
forward such payments and the contribution of the employer
(if any) to the Administrator. The Administrator shall
develop procedures through which such payments shall be
received and forwarded to the health insurance issuer
involved.
``(2) Failure to pay.--
``(A) In general.--Failure to pay premiums shall be treated
as a debt owed to the United States in the same manner as the
failure to repay a loan made to an individual under the
Higher Education Act of 1965 is treated as such a debt.
``(B) Procedures.--The Administrator shall establish
procedures--
``(i) for the termination of employers that fail, for a two
consecutive month period (or such other time period as
determined appropriate by the Administrator), to make premium
payments in a timely manner; and
``(ii) for recovering the cost of unpaid and uncollected
premiums through an adjustment in the rates charged for the
subsequent year in accordance with section 3007(b)(1)(C).
``SEC. 3005. EMPLOYER PARTICIPATION.
``(a) Participation Procedure.--The Administrator shall
develop a procedure for employers and self-employed
individuals to participate in the program under this title,
including procedures relating to the offering of health
benefits plans to employees and the payment of premiums for
health insurance coverage under this title. For the purpose
of premium payments, a self-employed individual shall be
considered an employer that is making a 100 percent
contribution toward the premium amount.
``(b) Enrollment and Offering of Other Coverage.--
``(1) Enrollment.--A participating employer shall ensure
that each eligible employee has an opportunity to enroll in a
plan of the employer's choice or a plan of the employee's
choice in accordance with section 3007(d)(7).
``(2) Prohibition on offering other comprehensive health
benefit coverage.--A participating employer may not offer a
health insurance plan providing comprehensive health benefit
coverage to employees other than a health benefits plan
offered under this title.
``(3) Prohibition on coercion.--An employer shall not
pressure, coerce, or offer inducements to an employee to
elect not to enroll in coverage under the program under this
title or to select a particular health benefits plan.
``(4) Offer of supplemental coverage options.--
``(A) In general.--A participating employer may offer
supplementary coverage options to employees.
``(B) Definition.--In subparagraph (A), the term
`supplementary coverage' means benefits described as
`excepted benefits' under section 2791(c).
``(c) Regulatory Flexibility.--In developing the procedure
under subsection (a), the Administrator shall comply with the
requirements specified under the Regulatory Flexibility Act
under chapter 6 of title 5, United States Code, consider the
economic impacts that the regulation will have on small
businesses, and consider regulatory alternatives that would
mitigate such impact. The Administrator shall publish and
publicly disseminate a small business compliance guide,
pursuant to section 212 of the Small Business Regulatory
Enforcement Fairness Act, that explains the compliance
requirements for employer participation. Such compliance
guide shall be published not later than the date of the
publication of the final rule under this title, or the
effective date of such rules, whichever is later.
``(d) Rule of Construction.--Except as provided in section
3004(f), nothing in this title shall be construed to require
that an employer make premium contributions on behalf of
employees.
``SEC. 3006. ELIGIBILITY AND ENROLLMENT.
``(a) In General.--An individual shall be eligible to
enroll in health insurance coverage under this title for
coverage beginning in 2011 if such individual is an employee
of a participating employer described in section 3001(a)(4)
or is a self-employed individual as defined in section
401(c)(1)(B) of the Internal Revenue Code of 1986 and meets
the definition of a participating employer in section
3001(a)(8). An employer may allow employees who average fewer
than 35 hours per week to enroll.
``(b) Limitation.--A health insurance issuer may not refuse
to provide coverage to any eligible individual under
subsection (a) who selects a health benefits plan offered by
such issuer under this title.
``(c) Type of Enrollment.--An eligible individual may
enroll as an individual or as an adult with one or more
children regardless of whether another adult is present in
the enrollee's household or family.
``(d) Open Enrollment.--
``(1) In general.--The Administrator shall establish an
annual open enrollment period during which an employer may
elect to become a participating employer and an employee may
enroll in a health benefits plan under this title for the
following calendar year.
``(2) Open enrollment period.--For purposes of this title,
the term `open enrollment period' means, with respect to
calendar year 2011 and each succeeding calendar year, the
[[Page S2351]]
period beginning on October 1, 2010, and ending December 1,
2010, and each succeeding period beginning October 1 and
ending December 1. Coverage in a health benefits plan
selected during such an open enrollment period shall begin on
January 1 of the calendar year following the selection.
``(3) Newly eligible employers and employees.--
Notwithstanding the open enrollment period provided for under
paragraph (2), the Administrator shall establish an
enrollment process to enable a newly eligible employer or an
employer with an existing health benefits policy whose term
is ending to become a participating employer and for an
employee of such employer, or a new employee of a
participating employer, to enroll in a health benefits plan
under this title outside of an open enrollment period. The
Administrator may establish a process for setting the renewal
date for the participation of an employer that initially
becomes a participating employer outside of the open
enrollment period to coincide with a subsequent open
enrollment period.
``(4) Limitation of changing enrollment.--An employer or
employee (as the case may be) may elect to change the health
benefits plan that the employee is enrolled in only during an
open enrollment period.
``(5) Effectiveness of election and change of election.--An
election to change a health benefits plan that is made during
the open enrollment period under paragraph (2) shall take
effect as of the first day of the following calendar year.
``(6) Continuation of enrollment.--An employee who has
enrolled in a health benefits plan under this title is
considered to have been continuously enrolled in that health
benefits plan until such time as--
``(A) the employer or employee (as the case may be) elects
to change health benefits plans; or
``(B) the health benefits plan is terminated.
``(e) Providing Information to Promote Informed Choice.--
The Administrator shall compile, produce, and disseminate
information to employers, employees, and navigators under
section 3002(c)(8) to promote informed choice that shall be
made available at least 30 days prior to the beginning of
each open enrollment period.
``(f) Termination of Employment.--An employee may remain
enrolled in a health plan under this title for the remainder
of the calendar year following the termination or separation
of the employee from employment or termination of the
employer, if the employee pays 100 percent of the monthly
premium for the remainder of the year involved.
``(g) Rule of Construction.--Nothing in this title shall be
construed to prohibit a health insurance issuer providing
coverage through the program under this title from using the
services of a licensed agent or broker.
``SEC. 3007. HEALTH COVERAGE AVAILABLE WITHIN THE SMALL
BUSINESS POOL.
``(a) Preexisting Condition Exclusions.--
``(1) In general.--Each contract under this title may
include a preexisting condition exclusion as defined under
section 9801(b)(1) of the Internal Revenue Code of 1986.
``(2) Exclusion period.--A preexisting condition exclusion
under this subsection shall provide for coverage of a
preexisting condition to begin not later than 6 months after
the date on which the coverage of the individual under a
health benefits plan commences, reduced by the aggregate of 1
day for each day that the individual was covered under
creditable health insurance coverage (as defined for purposes
of section 2701(c)) immediately preceding the date the
individual submitted an application for coverage under this
title. This provision shall be applied notwithstanding the
applicable provision for the reduction of the exclusion
period provided for in section 701(a)(3) of the Employee
Retirement Income Security Act of 1974 (29 U.S.C.
1181(a)(3)).
``(b) Rates and Premiums; State Laws.--
``(1) In general.--Rates charged and premiums paid for a
health benefits plan under this title--
``(A) shall be determined in accordance with subsection
(d);
``(B) may be annually adjusted; and
``(C) shall be adjusted to cover the administrative costs
of the Administrator under this title and the office
established under section 3002.
``(2) Benefit mandate laws.--With respect to a contract
entered into under this title under which a health insurance
issuer will offer health benefits plan coverage, State
mandated benefit laws in effect in the State in which the
plan is offered shall continue to apply, except in the case
of a nationwide plan.
``(3) Limitation.--Nothing in this subsection shall be
construed to preempt any State or local law (including any
State grievance, claims, and appeals procedure laws, State
provider mandate laws, and State network adequacy laws)
except those laws and regulations described in subsection
(b)(2), (d)(2)(B), and (d)(5).
``(c) Termination and Reenrollment.--If an individual who
is enrolled in a health benefits plan under this title
voluntarily terminates the enrollment, except in the case of
an individual who has lost or changes employment or whose
employer is terminated for failure to pay premiums, the
individual shall not be eligible for reenrollment until the
first open enrollment period following the expiration of 6
months after the date of such termination.
``(d) Rating Rules and Transitional Application of State
Law.--
``(1) Years 2011 and 2012.--With respect to calendar years
2011 and 2012 (open enrollment period beginning October 1,
2010, and October 1, 2011), the following shall apply:
``(A) In the case of an employer that elects to participate
in the program under this title, the State rating
requirements applicable to employers purchasing health
insurance coverage in the small group market in the State in
which the employer is located shall apply with respect to
such coverage, except that premium rates for such coverage
shall not vary based on health-status related factors.
``(B) State rating requirements shall apply to health
insurance coverage purchased in the small group market in the
State, except that a State shall be prohibited from allowing
premium rates to vary based on health-status related factors.
``(2) Subsequent years.--
``(A) NAIC recommendations.--
``(i) Study.--Beginning in 2009, the Administrator shall
contract with the National Association of Insurance
Commissioners to conduct a study of the rating requirements
utilized in the program under this title and the rating
requirements that apply to health insurance purchased in the
small group markets in the States, and to develop
recommendations concerning rating requirements. Such
recommendations shall be submitted to the appropriate
committees of Congress during calendar year 2011.
``(ii) Consultation.--In conducting the study under clause
(i), the National Association of Insurance Commissioners
shall consult with key stakeholders (including small
businesses, self-employed individuals, employees of small
businesses, health insurance issuers, health care providers,
and patient advocates).
``(iii) Recommendations.--During calendar year 2011, the
recommendations of the National Association of Insurance
Commissioners shall be submitted to Congress (in the form of
a legislative proposal), and shall concern--
``(I) rating requirements for health insurance coverage
under this title for calendar year 2013 and subsequent
calendar years; and
``(II) a maximum permissible variance between State rating
requirements and the rating requirements for coverage under
this title that will allow State flexibility without causing
significant adverse selection for health insurance coverage
under this title.
``(B) Application of requirements.--If, pursuant to this
subsection, an Act is enacted to implement rating
requirements pursuant to the recommendations submitted under
subparagraph (A), or alternative rating requirements
developed by Congress, such rating requirements shall apply
to the program under this title beginning in calendar year
2013 (open enrollment periods beginning October 1, 2012, and
thereafter).
``(3) Failure to enact legislation.--If an Act is not
enacted as provided for in paragraph (2)(B), the fallback
rating rules under paragraph (5) shall apply beginning in
calendar year 2013 (open enrollment periods beginning October
1, 2012, and thereafter).
``(4) Expedited congressional consideration.--
``(A) Introduction and committee consideration.--
``(i) Introduction.--A legislative proposal submitted to
Congress pursuant to paragraph (2) shall be introduced in the
House of Representatives by the Speaker, and in the Senate by
the Majority Leader, immediately upon receipt of the language
and shall be referred to the appropriate committees of
Congress. If the proposal is not introduced in accordance
with the preceding sentence, legislation may be introduced in
either House of Congress by any member thereof.
``(ii) Committee consideration.--Legislation introduced in
the House of Representatives and the Senate under clause (i)
shall be referred to the appropriate committees of
jurisdiction of the House of Representatives and the Senate.
Not later than 45 calendar days after the introduction of the
legislation or February 15th, 2012, whichever is later, the
committee of Congress to which the legislation was referred
shall report the legislation or a committee amendment
thereto. If the committee has not reported such legislation
(or identical legislation) at the end of 45 calendar days
after its introduction, or February 15th, 2012, whichever is
later, such committee shall be deemed to be discharged from
further consideration of such legislation and such
legislation shall be placed on the appropriate calendar of
the House involved.
``(B) Expedited procedure.--
``(i) Consideration.--Not later than 15 calendar days after
the date on which a committee has been or could have been
discharged from consideration of legislation under this
paragraph, the Speaker of the House of Representatives, or
the Speaker's designee, or the Majority Leader of the Senate,
or the Leader's designee, shall move to proceed to the
consideration of the committee amendment to the legislation,
and if there is no such amendment, to the legislation. It
shall also be in order for any member of the House of
Representatives or the Senate, respectively, to move to
proceed to the consideration of the legislation at any time
after the conclusion of such 15-day period. All points of
order against the legislation (and against consideration of
the legislation) with the exception of points of order under
the Congressional Budget Act of 1974 are waived. A motion to
proceed to the consideration of the legislation is highly
privileged
[[Page S2352]]
in the House of Representatives and is privileged in the
Senate and is not debatable. The motion is not subject to
amendment, to a motion to postpone consideration of the
legislation, or to a motion to proceed to the consideration
of other business. A motion to reconsider the vote by which
the motion to proceed is agreed to or not agreed to shall not
be in order. If the motion to proceed is agreed to, the House
of Representatives or the Senate, as the case may be, shall
immediately proceed to consideration of the legislation in
accordance with the Standing Rules of the House of
Representatives or the Senate, as the case may be, without
intervening motion, order, or other business, and the
resolution shall remain the unfinished business of the House
of Representatives or the Senate, as the case may be, until
disposed of, except as provided in clause (iii).
``(ii) Consideration by other house.--If, before the
passage by one House of the legislation that was introduced
in such House, such House receives from the other House
legislation as passed by such other House--
``(I) the legislation of the other House shall not be
referred to a committee and shall immediately displace the
legislation that was introduced in the House in receipt of
the legislation of the other House; and
``(II) the legislation of the other House shall immediately
be considered by the receiving House under the same
procedures applicable to legislation reported by or
discharged from a committee under this paragraph.
``Upon disposition of legislation that is received by one
House from the other House, it shall no longer be in order to
consider the legislation that was introduced in the receiving
House.
``(iii) Senate vote requirement.--Legislation under this
paragraph shall only be approved in the Senate if affirmed by
the votes of 3/5 of the Senators duly chosen and sworn. If
legislation in the Senate has not reached final passage
within 10 days after the motion to proceed is agreed to
(excluding periods in which the Senate is in recess) it shall
be in order for the Majority Leader to file a cloture
petition on the legislation or amendments thereto, in
accordance with rule XXII of the Standing Rules of the
Senate. If such a cloture motion on the legislation fails, is
shall be in order for the Majority Leader to proceed to other
business and the legislation shall be returned to or placed
on the Senate calendar.
``(iv) Consideration in conference.--Immediately upon a
final passage of the legislation that results in a
disagreement between the two Houses of Congress with respect
to the legislation, conferees shall be appointed and a
conference convened. Not later than 15 days after the date on
which conferees are appointed (excluding periods in which one
or both Houses are in recess), the conferees shall file a
report with the House of Representatives and the Senate
resolving the differences between the Houses on the
legislation. Notwithstanding any other rule of the House of
Representatives or the Senate, it shall be in order to
immediately consider a report of a committee of conference on
the legislation filed in accordance with this subclause.
Debate in the House of Representatives and the Senate on the
conference report shall be limited to 10 hours, equally
divided and controlled by the Speaker of the House of
Representatives and the Minority Leader of the House of
Representatives or their designees and the Majority and
Minority Leaders of the Senate or their designees. A vote on
final passage of the conference report shall occur
immediately at the conclusion or yielding back of all time
for debate on the conference report. The conference report
shall be approved in the Senate only if affirmed by the votes
of 3/5 of the Senators duly chosen and sworn.
``(C) Rules of the senate and house of representatives.--
This paragraph is enacted by Congress--
``(i) as an exercise of the rulemaking power of the Senate
and House of Representatives, respectively, and is deemed to
be part of the rules of each House, respectively, but
applicable only with respect to the procedure to be followed
in that House in the case of legislation under this
paragraph, and it supersedes other rules only to the extent
that it is inconsistent with such rules; and
``(ii) with full recognition of the constitutional right of
either House to change the rules (so far as they relate to
the procedure of that House) at any time, in the same manner,
and to the same extent as in the case of any other rule of
that House.
``(5) Fallback rating rules.--For purposes of paragraph
(3), the fallback rating rules are as follows:
``(A) Program.--
``(i) Rating rules.--A health insurance issuer that enters
into a contract under the program under this title shall
determine the amount of premiums to assess for coverage under
a health benefits plan based on a community rate that may be
annually adjusted only--
``(I) based on the age of covered individuals (subject to
clause (iii));
``(II) based on the geographic area involved if the
adjustment is based on geographical divisions that are not
smaller than a metropolitan statistical area and the issuer
provides evidence of geographic variation in cost of
services;
``(III) based on industry (subject to clause (iv))
``(IV) based on tobacco use; and
``(V) based on whether such coverage is for an individual,
2 adults in a household, 1 adult and 1 or more children, or a
family.
``(ii) Limitation.--Premium rates charged for coverage
under the program under this title shall not vary based on
health-status related factors, gender, class of business, or
claims experience or any other factor not described in clause
(i).
``(iii) Age adjustments.--
``(I) In general.--With respect to clause (i)(I), in making
adjustments based on age, the Administrator shall establish
not more than 5 age brackets to be used by a health insurance
issuer in establishing rates for individuals under the age of
65. The rates for any age bracket shall not exceed 300
percent of the rate for the lowest age bracket. Age-related
premiums may not vary within age brackets.
``(II) Ages 65 and older.--With respect to clause (i)(I), a
health insurance issuer may develop separate rates for
covered individuals who are 65 years of age or older for whom
the primary payor for health benefits coverage is the
medicare program under title XVIII of the Social Security
Act, for the coverage of health benefits that are not
otherwise covered under medicare.
``(iv) Industry adjustment.--With respect to clause
(i)(III), in making adjustments based on industry, the rates
for any industry shall not exceed 115 percent of the rate for
the lowest industry and shall be based on evidence of
industry variation in cost of services.
``(B) State rating rules.--State rating requirements shall
apply to health insurance coverage purchased in the small
group market, except that a State shall not permit premium
rates to vary based on health-status related factors.
``(6) State with less premium variation.--Effective
beginning in calendar year 2013, in the case of a State that
provides a rating variance with respect to age that is less
than the Federal limit established under paragraph (2)(B) or
(3) or that provides for some form of community rating, or
that provides a rating variance with respect to industry that
is less than the Federal limit established under paragraph
(2)(B) or (3), or that provides a rating variance with
respect to the geographic area involved that is less than the
Federal limit established in paragraph (2)(B) or (3), premium
rates charged for health insurance coverage under this title
in such State with respect to such factor shall reflect the
rating requirements of such State.
``(7) Employee choice.--
``(A) Calendar years 2011 and 2012.--With respect to
calendar years 2011 and 2012 (open enrollment periods
beginning October 1, 2010, and October 1, 2011), in the case
of a State that applies community rating or adjusted
community rating where any age bracket does not exceed 300
percent of the lowest age bracket, employees of an employer
located in that State may elect to enroll in any health plan
offered under this title.
``(B) Subsequent years.--Beginning in calendar year 2013
(open enrollment periods beginning October 1, 2012, and
thereafter), employees of an employer that participates in
the program under this title may elect to enroll in any
health plan offered under this title.
``(C) Exception.--In any State or year in which an employee
is not able to select a health plan as provided for in
subparagraph (A) or (B), the employer shall select the health
plan or plans that shall be made available to the employees
of such employer.
``(8) State approval of rates.--State laws requiring the
approval of rates with respect to health insurance shall
continue to apply to health insurance coverage under this
title in such State unless the State fails to enforce the
application of rates that would otherwise apply to health
insurance issuers under the program under this title.
``(e) Benefits.--
``(1) Statement of benefits.--Each contract under this
title shall contain a detailed statement of benefits offered
and shall include information concerning such maximums,
limitations, exclusions, and other definitions of benefits as
the Administrator considers necessary or reasonable.
``(2) Nationwide plans.--
``(A) In general.--In the case of contracts with health
insurance issuers that offer a health benefit plan on a
nationwide basis, in the first year after the date of
enactment of this title, the benefit package shall include
benefits established by the Administrator.
``(B) Process for establishing benefits for nationwide
plans.--The benefits provide for under subparagraph (A) shall
be determined as follows:
``(i) Not later than 30 days after the date of enactment of
this title, the Secretary shall enter into a contract with
the Institute of Medicine to develop a minimum set of
benefits to be offered by nationwide plans.
``(ii) In developing such minimum set of benefits, the
Institute of Medicine shall convene public forums to allow
input from key stakeholders (including small businesses,
self-employed individuals, employees of small businesses,
health insurance issuers, insurance regulators, health care
providers, and patient advocates) and shall consult with the
Small Business Health Board.
``(iii) The Institute of Medicine shall consider--
``(I) the clinical appropriateness and effectiveness of the
benefits covered;
``(II) the affordability of the benefits covered;
``(III) the financial protection of enrollees against high
health care expenses;
[[Page S2353]]
``(IV) access to necessary health care services; and
``(V) benefits similar to those available in the small
group market on the date of enactment of this title.
``(iv) The benefits package shall not be discriminatory or
be likely to promote or induce adverse selection.
``(v) The Administrator shall publish the benefits
recommended by the Institute of Medicine for public comment.
``(vi) Based on the comments received, the Administrator
may make changes only to the extent that the recommendation
from the Institute of Medicine is not consistent with the
criteria contained in clause (iii) or there is a compelling
need for the changes to ensure the effective functioning of
the program.
``(C) Changes to benefits.--
``(i) In genera1.--By a vote of a two-thirds majority, the
Small Business Health Board may recommend to the
Administrator changes to the benefit package for nationwide
plans under this paragraph for years subsequent to the first
year in which such benefits are in effect.
``(ii) Reduction in benefits.--The Administrator may reduce
benefits that were previously covered under this paragraph
only if--
``(I) two-thirds of the Small Business Health Board
recommend such change; or
``(II) there is a compelling need for the change to prevent
a substantial reduction in participation in the program under
this title.
``(f) Additional Premium for Delayed Enrollment.--
``(1) In general.--A self-employed individual who is
eligible to participate in the program under this title, who
does not reside in a State where a self-employed individual
is eligible for coverage in the small group market, and who
does not elect to enroll in coverage under such program in
the first year in which the self-employed individual is
eligible to so enroll, shall be subject to an additional
premium for delayed enrollment.
``(2) Amount.--The Administrator shall establish the amount
of the additional premium under paragraph (1), which shall be
the amount determined by the Administrator to be actuarially
appropriate, to encourage enrollment, and to reduce adverse
selection. The amount of the additional premium shall be
calculated by the Administrator based on the number of years
specified in paragraph (4).
``(3) Payment.--A self-employed individual shall pay the
additional premium under this subsection, if any, for a
period of time equal to the number of years specified in
paragraph (4). After the expiration of such period the
additional premium for delayed enrollment shall be
terminated.
``(4) Years.--The number of years specified in this
paragraph is the number of years that the self-employed
individual involved was eligible to participate in the
program under this title but did not enroll in coverage under
such program and did not otherwise have creditable coverage
(as defined for purposes of section 2701(c)).
``(g) State Enforcement.--
``(1) State authority.--With respect to the enforcement of
provisions in this title that supersede State law (as
described in paragraph (2)), a State may require that health
insurance issuers that issue, sell, renew, or offer health
insurance coverage in the State in the small group market or
through the program under this title, comply with the
requirements of this title with respect to such issuers.
``(2) Provisions described.--The provisions described in
this paragraph shall include the following:
``(A) Prohibitions on varying premium rates based on
health-status related factors (subsections (d)(1)(A) and (B)
of section 3007).
``(B) The implementation of rating requirements that shall
apply to the program under this title beginning in calendar
year 2013 (subsections (d)(2)(B) and (d)(3) of section 3007).
``(C) Benefit requirements for nationwide plans available
in the program under this title (subsection (e)).
``(3) Failure to implement or enforce provisions.--In the
case of a determination by the Secretary that a State has
failed to substantially enforce a provision (or provisions)
described in paragraph (2) with respect to health insurance
issuers in the State, the Secretary shall enforce such
provision (or provisions).
``(4) Secretarial enforcement authority.--The Secretary
shall have the same authority in relation to the enforcement
of the provisions of this title with respect to issuers of
health insurance coverage in a State as the Secretary has
under section 2722(b)(2) in relation to the enforcement of
the provisions of part A of title XXVII with respect to
issuers of health insurance coverage in the small group
market in the State.
``(h) State Opt Out.--A State may prohibit small employers
and self-employed individuals in the State from participating
in the program under this title if the State--
``(1) defines its small group market to include groups of
one (so that self-employed individuals are eligible for
coverage in such market);
``(2) prohibits the use of health-status related factors
and other factors described in subsection (d)(5)(A);
``(3) has in effect rating rules that--
``(A) in calendar years 2011 and 2012, comply with
subsection (d)(5)(A); and
``(B) in calendar year 2013 and thereafter, comply with
subsection (d)(2)(B) or (d)(3), whichever is in effect for
such calendar year;
except that such rules may impose limits on rating variation
in addition to those provided for in such subsection;
``(4) maintains a State-wide purchasing pool that provides
purchasers in the small group market a choice of health
benefit plans, with comparative information provided
concerning such plans and the premiums charged for such plans
made available through the Internet; and
``(5) enacts a law to request an opt out under this
subsection.
``SEC. 3008. ENCOURAGING PARTICIPATION BY HEALTH INSURANCE
ISSUERS THROUGH ADJUSTMENTS FOR RISK.
``(a) Application of Risk Corridors.--
``(1) In general.--This section shall only apply to health
insurance issuers with respect to health benefits plans
offered under this Act during any of calendar years 2011
through 2013.
``(2) Notification of costs under the plan.--In the case of
a health insurance issuer that offers a health benefits plan
under this title in any of calendar years 2011 through 2013,
the issuer shall notify the Administrator, before such date
in the succeeding year as the Administrator specifies, of the
total amount of costs incurred in providing benefits under
the health benefits plan for the year involved and the
portion of such costs that is attributable to administrative
expenses.
``(3) Allowable costs defined.--For purposes of this
section, the term `allowable costs' means, with respect to a
health benefits plan offered by a health insurance issuer
under this title, for a year, the total amount of costs
described in paragraph (2) for the plan and year, reduced by
the portion of such costs attributable to administrative
expenses incurred in providing the benefits described in such
paragraph.
``(b) Adjustment of Payment.--
``(1) No adjustment if allowable costs within 3 percent of
target amount.--If the allowable costs for the health
insurance issuer with respect to the health benefits plan
involved for a calendar year are at least 97 percent, but do
not exceed 103 percent, of the target amount for the plan and
year involved, there shall be no payment adjustment under
this section for the plan and year.
``(2) Increase in payment if allowable costs above 103
percent of target amount.--
``(A) Costs between 103 and 108 percent of target amount.--
If the allowable costs for the health insurance issuer with
respect to the health benefits plan involved for the year are
greater than 103 percent, but not greater than 108 percent,
of the target amount for the plan and year, the Administrator
shall reimburse the issuer for such excess costs through
payment to the issuer of an amount equal to 75 percent of the
difference between such allowable costs and 103 percent of
such target amount.
``(B) Costs above 108 percent of target amount.--If the
allowable costs for the health insurance issuer with respect
to the health benefits plan involved for the year are greater
than 108 percent of the target amount for the plan and year,
the Administrator shall reimburse the issuer for such excess
costs through payment to the issuer in an amount equal to the
sum of--
``(i) 3.75 percent of such target amount; and
``(ii) 90 percent of the difference between such allowable
costs and 108 percent of such target amount.
``(3) Reduction in payment if allowable costs below 97
percent of target amount.--
``(A) Costs between 92 and 97 percent of target amount.--If
the allowable costs for the health insurance issuer with
respect to the health benefits plan involved for the year are
less than 97 percent, but greater than or equal to 92
percent, of the target amount for the plan and year, the
issuer shall be required to pay into a contingency reserve
fund established and maintained by the Administrator, an
amount equal to 75 percent of the difference between 97
percent of the target amount and such allowable costs.
``(B) Costs below 92 percent of target amount.--If the
allowable costs for the health insurance issuer with respect
to the health benefits plan involved for the year are less
than 92 percent of the target amount for the plan and year,
the issuer shall be required to pay into the contingency fund
established under subparagraph (A), an amount equal to the
sum of--
``(i) 3.75 percent of such target amount; and
``(ii) 90 percent of the difference between 92 percent of
such target amount and such allowable costs.
``(4) Target amount described.--
``(A) In general.--For purposes of this subsection, the
term `target amount' means, with respect to a health benefits
plan offered by an issuer under this title in any of calendar
years 2011 through 2013, an amount equal to--
``(i) the total of the monthly premiums estimated by the
health insurance issuer and accepted by the Administrator to
be paid for enrollees in the plan under this title for the
calendar year involved; reduced by
``(ii) the amount of administrative expenses that the
issuer estimates, and the Administrator accepts, will be
incurred by the issuer with respect to the plan for such
calendar year.
``(B) Submission of target amount.--Not later than December
31, 2010, and each December 31 thereafter through calendar
year
[[Page S2354]]
2012, an issuer shall submit to the Administrator a
description of the target amount for such issuer with respect
to health benefits plans provided by the issuer under this
title.
``(c) Disclosure of Information.--
``(1) In general.--Each contract under this title shall
provide--
``(A) that a health insurance issuer offering a health
benefits plan under this title shall provide the
Administrator with such information as the Administrator
determines is necessary to carry out this subsection
including the notification of costs under subsection (a)(2)
and the target amount under subsection (b)(4)(B); and
``(B) that the Administrator has the right to inspect and
audit any books and records of the issuer that pertain to the
information regarding costs provided to the Administrator
under such subsections.
``(2) Restriction on use of information.--Information
disclosed or obtained pursuant to the provisions of this
subsection may be used by the office designated under section
3002(a) and its employees and contractors only for the
purposes of, and to the extent necessary in, carrying out
this section.
``SEC. 3009. ADMINISTRATION THROUGH REGIONAL OR OTHER
ADMINISTRATIVE ENTITIES.
``(a) In General.--In order to provide for the
administration of the benefits under this title with maximum
efficiency and convenience for participating employers and
health care providers and other individuals and entities
providing services to such employers, the Administrator--
``(1) shall enter into contracts with eligible entities, to
the extent appropriate, to perform, on a regional or other
basis, activities to receive, disburse, and account for
payments of premiums to participating employers by
individuals, and for payments by participating employers and
employees to health insurance issuers; and
``(2) may enter into contracts with eligible entities, to
the extent appropriate, to perform, on a regional or other
basis, one or more of the following:
``(A) Collect and maintain all information relating to
individuals, families, and employers participating in the
program under this title.
``(B) Serve as a channel of communication between health
insurance issuers, participating employers, and individuals
relating to the administration of this title.
``(C) Otherwise carry out such activities for the
administration of this title, in such manner, as may be
provided for in the contract entered into under this section.
``(b) Application.--To be eligible to receive a contract
under subsection (a), an entity shall prepare and submit to
the Administrator an application at such time, in such
manner, and containing such information as the Administration
may require.
``(c) Process.--
``(1) Competitive bidding.--All contracts under this
section shall be awarded through a competitive bidding
process on a bi-annual basis.
``(2) Requirement.--No contract shall be entered into with
any entity under this section unless the Administrator finds
that such entity will perform its obligations under the
contract efficiently and effectively and will meet such
requirements as to financial responsibility, legal authority,
and other matters as the Administrator finds pertinent.
``(3) Publication of standards and criteria.--If the
Administrator enters into contracts under subsection (a), the
Administrator shall publish in the Federal Register standards
and criteria for the efficient and effective performance of
contract obligations under this section, and opportunity
shall be provided for public comment prior to implementation.
In establishing such standards and criteria, the
Administrator shall provide for a system to measure an
entity's performance of responsibilities.
``(4) Term.--Each contract under this section shall be for
a term of at least 2 years, and may be made automatically
renewable from term to term in the absence of notice by
either party of intention to terminate at the end of the
current term, except that the Administrator may terminate any
such contract at any time (after such reasonable notice and
opportunity for hearing to the entity involved as the
Administrator may provide in regulations) if the
Administrator finds that the entity has failed substantially
to carry out the contract or is carrying out the contract in
a manner inconsistent with the efficient and effective
administration of the program established by this title.
``(d) Terms of Contract.--A contract entered into under
this section shall include--
``(1) a description of the duties of the contracting
entity;
``(2) an assurance that the entity will furnish to the
Administrator such timely information and reports as the
Administrator determines appropriate;
``(3) an assurance that the entity will maintain such
records and afford such access thereto as the Administrator
finds necessary to assure the correctness and verification of
the information and reports under paragraph (2) and otherwise
to carry out the purposes of this title;
``(4) an assurance that the entity shall comply with such
confidentiality and privacy protection guidelines and
procedures as the Administrator may require;
``(5) an assurance that the entity does not have, and will
continue to avoid, any conflicts of interest relative to any
functions it will perform; and
``(6) such other terms and conditions not inconsistent with
this section as the Administrator may find necessary or
appropriate.
``SEC. 3010. PUBLIC EDUCATION CAMPAIGN AND REPORT.
``(a) In General.--In carrying out this title, the
Administrator shall develop and implement an educational
campaign with interagency participation (including at a
minimum the Small Business Administration, the Department of
Labor, and employees of the office established under section
3002 who oversee the provision of information through
navigators) to provide information to employers and the
general public concerning the health insurance program
developed under this title, including the contact information
relating to an individual or individuals who will be
available to resolve various types of problems with health
insurance coverage provided under this title.
``(b) Public Education Campaign.--There is authorized to be
appropriated to carry out this section, such sums as may be
necessary for each of fiscal years 2008 through 2010.
``(c) Reports to Congress.--Not later than 1 year and 2
years after the implementation of the campaign under
subsection (a), the Administrator shall submit to the
appropriate committees of Congress a report that describes
the activities of the Administrator under subsection (a),
including a determination by the Administrator of the
percentage of employers with knowledge of the health benefits
program under this title.
``SEC. 3011. APPROPRIATIONS.
``There are authorized to be appropriated to the
Administrator such sums as may be necessary in each fiscal
year for the development and administration of the program
under this title.
``SEC. 3012. EFFECTIVE DATE.
``This title shall take effect on the date of enactment of
this title.''.
SEC. 3. AMENDMENT TO ERISA.
Section 514(b)(2) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1144(b)(2)) is amended by
adding at the end the following:
``(C) Notwithstanding subparagraph (A), the provisions of
subsections (d)(1)(B) and (g)(2)(A) of section 3007 of the
Public Health Service Act (relating to the prohibition on
health-status related rating and the Federal enforcement of
such provisions) shall supercede any State law that conflicts
with such provisions.''.
SEC. 4. CREDIT FOR SMALL BUSINESS EMPLOYEE HEALTH INSURANCE
EXPENSES.
(a) In General.--Subpart D of part IV of subchapter A of
chapter 1 of the Internal Revenue Code of 1986 (relating to
credits) is amended by inserting after section 45N the
following new section:
``SEC. 45O. SMALL BUSINESS EMPLOYEE HEALTH INSURANCE CREDIT.
``(a) Determination of Credit.--In the case of a qualified
small employer, there shall be allowed as a credit against
the tax imposed by this chapter for the taxable year an
amount equal to the credit amount described in subsection
(b).
``(b) General Credit Amount.--For purposes of this
section--
``(1) In general.--The credit amount described in this
subsection is the product of--
``(A) the amount specified in paragraph (2),
``(B) the employer size factor specified in paragraph (3),
and
``(C) the percentage of year factor specified in paragraph
(4).
``(2) Applicable amount.--For purposes of paragraph (1)--
``(A) In general.--The applicable amount is equal to--
``(i) $1,000 for each employee of the employer who receives
self-only health insurance coverage through the employer,
``(ii) $2,000 for each employee of the employer who
receives family health insurance coverage through the
employer, and
``(iii) $1,500 for each employee of the employer who
receives health insurance coverage for two adults or one
adult and one or more children through the employer.
``(B) Bonus for payment of greater percentage of
premiums.--The applicable amount otherwise specified in
subparagraph (A) shall be increased by $200 in the case of
subparagraph (A)(i), $400 in the case of subparagraph
(A)(ii), and $300 in the case of subparagraph (A)(iii), for
each additional 10 percent of the qualified employee health
insurance expenses exceeding 60 percent which are paid by the
qualified small employer.
``(3) Employer size factor.--For purposes of paragraph (1),
the employer size factor is the percentage determined in
accordance with the following table:
----------------------------------------------------------------------------------------------------------------
``If the employer size is: The percentage is:
----------------------------------------------------------------------------------------------------------------
10 or fewer full-time employees 100%
More than 10 but not more than 20 full-time employees 80%
More than 20 but not more than 30 full-time employees 60%
[[Page S2355]]
More than 30 but not more than 40 full-time employees 40%
More than 40 but not more than 50 full-time employees 20%
More than 50 full-time employees 0%
----------------------------------------------------------------------------------------------------------------
``(4) Percentage of year factor.--For purposes of paragraph
(1), the percentage of year factor is equal to the ratio of--
``(A) the number of months during the taxable year for
which the employer paid or incurred qualified employee health
insurance expenses, and
``(B) 12.
``(c) Definitions and Special Rules.--For purposes of this
section--
``(1) Qualified small employer.--
``(A) In general.--The term `qualified small employer'
means any employer (as defined in section 3001(a)(4) of the
Public Health Service Act) which--
``(i) either--
``(I) purchases health insurance coverage for its employees
in a small group market in a State which meets the
requirements under subparagraph (B), or
``(II) with respect to any taxable year beginning after
2010, is a participating employer (as defined in section
3001(a)(8) of such Act) in the program under title XXX of
such Act,
``(ii) pays or incurs at least 60 percent of the qualified
employee health insurance expenses of such employer or is
self-employed, and
``(iii) employed an average of 50 or fewer full-time
employees during the preceding taxable year or was a self-
employed individual with either not less than $5,000 in net
earnings or not less than $15,000 in gross earnings from
self-employment in the preceding taxable year.
``(B) State small group market requirements.--A State meets
the requirements of this subparagraph if--
``(i) during calendar years 2009 and 2010, the State--
``(I) defines its small group market to include groups of
one (so that self-employed individuals are eligible for
coverage in such market),
``(II) prohibits the use of health-status related factors
and other factors described in section 3007(d)(5)(A) of such
Act, and
``(III) has in effect rating rules that comply with section
3007(d)(5)(A) of such Act (except that such rules may impose
limits on rating variation in addition to those provided for
in such section),
``(ii) during calendar years 2011 and 2012, the State--
``(I) meets the requirements under clause (i), and
``(II) maintains a State-wide purchasing pool that provides
purchasers in the small group market a choice of health
benefit plans, with comparative information provided
concerning such plans and the premiums charged for such plans
made available through the Internet, and
``(iii) for calendar years after 2012, the State--
``(I) meets the requirements under clauses (i)(I), (i)(II),
and (ii)(II), and
``(II) has in effect rating rules that comply with
paragraph (2)(B) or (3) of section 3007(d) of such Act,
whichever is in effect for such calendar year (except that
such rules may impose limits on rating variation in addition
to those provided for in such section).
``(2) Qualified employee health insurance expenses.--
``(A) In general.--The term `qualified employee health
insurance expenses' means any amount paid by an employer or
an employee of such employer for health insurance coverage
under such Act to the extent such amount is attributable to
coverage--
``(i) provided to any employee (as defined in subsection
3001(a)(3) of such Act), or
``(ii) for the employer, in the case of a self-employed
individual.
``(B) Exception for amounts paid under salary reduction
arrangements.--No amount paid or incurred for health
insurance coverage pursuant to a salary reduction arrangement
shall be taken into account under subparagraph (A).
``(3) Full-time employee.--The term `full-time employee'
means, with respect to any period, an employee (as defined in
section 3001(a)(3) of such Act) of an employer if the average
number of hours worked by such employee in the preceding
taxable year for such employer was at least 35 hours per
week.
``(d) Inflation Adjustment.--
``(1) In general.--For each taxable year after 2009, the
dollar amounts specified in subsections (b)(2)(A), (b)(2)(B),
and (c)(1)(A)(iii) (after the application of this paragraph)
shall be the amounts in effect in the preceding taxable year
or, if greater, the product of--
``(A) the corresponding dollar amount specified in such
subsection, and
``(B) the ratio of the index of wage inflation (as
determined by the Bureau of Labor Statistics) for August of
the preceding calendar year to such index of wage inflation
for August of 2008.
``(2) Rounding.--If any amount determined under paragraph
(1) is not a multiple of $100, such amount shall be rounded
to the next lowest multiple of $100.
``(e) Application of Certain Rules in Determination of
Employer Size.--For purposes of this section--
``(1) Application of aggregation rule for employers.--All
persons treated as a single employer under subsection (b),
(c), (m), or (o) of section 414 shall be treated as 1
employer.
``(2) Employers not in existence in preceding year.--In the
case of an employer which was not in existence for the full
preceding taxable year, the determination of whether such
employer meets the requirements of this section shall be
based on the average number of full-time employees that it is
reasonably expected such employer will employ on business
days in the employer's first full taxable year.
``(3) Predecessors.--Any reference in this subsection to an
employer shall include a reference to any predecessor of such
employer.
``(f) Coordination With Advance Payments of Credit.--With
respect to any taxable year, the amount which would (but for
this subsection) be allowed as a credit to the taxpayer under
subsection (a) shall be reduced by the aggregate amount paid
on behalf of such taxpayer under section 7527A for months
beginning in such taxable year. If the amount determined
under this subsection is less than zero, the taxpayer shall
owe additional tax in such amount under this chapter.
``(g) Credits for Nonprofit Organizations.--Any credit
which would be allowable under subsection (a) with respect to
a qualified small business if such qualified small business
were not exempt from tax under this chapter shall be treated
as a credit allowable under this subpart to such qualified
small business.''.
(b) Advance Payments of Credit.--Chapter 77 of the Internal
Revenue Code of 1986 is amended by inserting after section
7527 the following new section:
``SEC. 7527A. ADVANCE PAYMENT OF CREDIT FOR HEALTH INSURANCE
COSTS FOR QUALIFIED SMALL EMPLOYERS.
``(a) General Rule.--Not later than December 31, 2008, the
Secretary shall establish a program for making monthly
payments on behalf of qualified small employers to the
program established under title XXX of the Public Health
Service Act. The amount of the monthly payment for a
qualified small employer shall be one twelfth of the amount
of the credit for the tax year to which the qualified small
employer is entitled under section 36. If a monthly payment
is made by the Secretary for which the employer is not
entitled to a corresponding credit, the employer shall owe
additional tax in such amount under this chapter.
``(b) Qualified Small Employer.--For purposes of this
section, the term `qualified small employer' has the meaning
given such term in section 36(c)(1).''.
(c) Conforming Amendments.--
(1) The table of sections for subpart D of part IV of
subchapter A of chapter 1 of the Internal Revenue Code of
1986 is amended by adding at the end the following new items:
``Sec. 45O. Small business employee health insurance credit.''.
(2) The table of sections for chapter 77 of such Code is
amended by inserting after the item relating to section 7527
the following new item:
``Sec. 7527A. Advance payment of credit for health insurance costs for
qualified small employers.''.
(d) Deductibility.--The payment of premiums by a
participating employer under this Act shall be considered to
be an ordinary and necessary expense in carrying on a trade
or business for purposes of the Internal Revenue Code of 1986
and shall be deductible.
(e) Effective Date.--The amendments made by this section
shall apply to amounts paid or incurred in taxable years
beginning after December 31, 2008.
Ms. SNOWE. Mr. President, I rise today to join with my colleagues
Senators Durbin, Coleman, and Lincoln, to introduce the landmark Small
Business Health Options Program Act of 2008 or the SHOP Act because
after more than 10 years of discussion in Congress of this No. 1
priority for America's small businesses, this bill should finally be
the vehicle that brings us to the finish line in passing legislation
that's critical not only to our small businesses but also to millions
of America's uninsured.
This compromise proposal represents the culmination of 15 months of
coming together, of reaching across the partisan divide, to fashion a
workable solution to pass this year. So I want to thank Assistant
Majority Leader Durbin for his steadfast and stalwart leadership on
this issue--he has been a true champion in this cause--and Senator
Lincoln, my esteemed colleague on the Senate Finance Committee--she and
I had pledged to work together on small business health insurance at
the start of this Congress--for her remarkable
[[Page S2356]]
dedication to making this moment possible. I also thank Senator
Coleman, who recently held a Small Business Committee field hearing on
health insurance reform in St. Paul, Minnesota, for joining us and for
his staunch support of our Nation's small businesses.
As former chair and now ranking member of the Senate Small Business
Committee, if there is one concern I have heard time and again--from
small businesses in Maine and across the country--it is the exorbitant
cost to small businesses of providing health insurance to their
employees. Throughout America, health insurance premiums have increased
by a staggering 78 percent since 2001--far outpacing inflation and wage
gains. In Maine, annual premiums in the small group market now average
an astronomical $4,868 for individual coverage and $14,605 for a family
plan. Just recently a group of Maine small businesses told me that,
incredibly, the most ``affordable'' insurance policies available to
them included a $636 monthly premium with a $2,500 annual deductible
This is just simply unacceptable. And the reality of these unreal
increases is that it perpetuates a vicious cycle of spiraling costs and
declining access--as fewer and fewer small businesses can afford to
offer health insurance to their employees. Today, only 45 percent of
our smallest businesses are able to provide this workplace benefit--a
13-percent drop from 2002. No wonder that nearly 9 out of 10 to firms
told the National Association of Manufacturers last year that the cost
of health insurance is one of their top-three concerns--even above
Government regulations and foreign competition. And when you couple all
this with the fact there are already around 47 million uninsured in
America, shouldn't we be helping to add to the rolls of the insured,
rather than the uninsured? What exactly is there not to get when the
status quo absolutely makes no sense?
That is why in the 108th and 109th Congresses, when I was chair of
the Small Business Committee, I championed a Small Business Health
Insurance Plan bill the full Senate considered back in May 2006--thanks
largely to the stewardship of Senator Enzi--and we came up just a
handful of votes short. At the same time, Senators Durbin and Lincoln
advocated for a different approach, the Small Employer Health Benefits
Program. Yet, regrettably, Congress has failed to muster the bipartisan
support to pass either of these measures--despite overwhelming public
support, on both sides of the aisle, to pass something.
Well, the clock has been ticking for far too long for America's small
businesses--and with this bill, we believe their hour may have finally
arrived because with the SHOP Act, we blend the best of the
previous approaches and address the major concerns critics have
expressed in a package that both the National Federation of Independent
Businesses, the National Association of Realtors, and the Service
Employees International Union agree on--and that is what I call a
diverse base of support that speaks volumes for this bill's chances for
success.
In short, we make health insurance more affordable and accessible by
encouraging development of State-based purchasing pools backstopped by
a voluntary, nationwide small business risk pool. The SHOP Act
maintains the basic premise of allowing small businesses and the self-
employed to pool together, across State lines--just as larger employers
are able to do--to secure quality coverage that is more affordable,
thanks to a reduction in administrative costs, which today account for
an astonishing 25 percent of small business premiums--compared to just
10 percent for large employers.
So the creation of these purchasing pools will increase competition
among insurers and provide more coverage choices for small businesses.
And that is all the more critical as small group insurance markets--
like those in Maine--currently have no real competition. In fact, the
largest insurers now control 43 percent of the small group markets, and
in Maine, a sum total of 4 large insurers now control 98 percent of the
small group market. This cannot be allowed to continue because no
competition means higher costs. Higher costs mean no health insurance.
And we need more insured in America, not fewer.
Moreover, under the SHOP Act, business and trade associations would
serve as health plan ``navigators,'' helping employers and employees
alike with enrollment in health insurance plans and in responding to
questions and distributing information about SHOP. And to assist small
employers who offer health insurance, we provide a targeted tax credit
of up to $1,000 for each covered employee, and $2,000 for family
coverage--with a bonus credit for employers who contribute more than 60
percent of the premium--encouraging our Nation's smallest businesses to
offer health insurance for their employees as a workplace benefit.
But perhaps most significantly, what this bill does that others have
not is it resolves the persistent policy concerns that have thwarted
previous attempts to pass small business health insurance legislation
in the Senate.
As we know, some have voiced concern that small business health
insurance plans could offer stripped-down, ``bare-bones'' coverage
plans that would leave out such key benefits as cancer screenings,
diabetic supplies, mammograms, and maternity care. Well, we agree and
we address this concern by requiring SHOP's nationwide plans to meet or
exceed a minimum benefit ``floor'' to be developed by the nonpartisan
and highly respected National Academies of Science's Institute of
Medicine--based on clinically appropriate and affordable practices in
today's small group market. So this issue of coverage should no longer
be a legitimate roadblock.
Others have said that small business health insurance legislation
could drive up premium costs for all those who don't participate in
these new small business plans because these plans would be playing by
different and more advantageous rules. They have been concerned that,
as a result, companies would set up plans that would attract a
healthier pool of individuals--who would pay lower premiums--while
potentially relegating the less healthy to existing group or individual
plans that would then have to raise premiums.
So we worked closely with the nonpartisan National Association of
Insurance Commissioners to create strong incentives for states to
ensure a level playing field for all plans--both inside and outside of
SHOP. We say, if you want the small businesses in your State to be
eligible for that targeted tax credit of up to $1,000 for individual
employees and $2,000 for family coverage that's included in our bill,
you must have rules prohibiting ``health status'' as a factor for
varying insurance and reducing excessive variations for other factors.
As an additional benefit to the self-employed, States must also ensure
that those individuals have the option to purchase a small group plan--
rather than being left with only the far more expensive option of the
individual insurance market.
Still others have expressed concerns about a potential role of the
Federal Government in insurance regulation, which has traditionally
been left to the States. So under the SHOP Act, we ensure that State
insurance commissioners--not the Federal Government--would handle all
consumer complaints about health plans and would be responsible for
ensuring that all SHOP health plans operating in their State meet State
requirements for financial solvency and for grievance claim and appeals
procedures.
In conclusion, for all of these reasons I firmly believe they Small
Business Health Options Program Act represents our best hope for
achieving passage this Congress. By addressing the major concerns about
previous legislation, frankly there is now no longer any good reason we
cannot make it happen. I look forward to working with Chairman Baucus
and Ranking Member Grassley on the Finance Committee to consider this
bipartisan measure, so it can be passed by the full Senate.
______
By Mr. AKAKA:
S. 2796. A bill to require a pilot program on the use of community-
based organizations to ensure that veterans receive the care and
benefits they need, and for other purposes; to the Committee on
Veterans' Affairs.
Mr. AKAKA. Mr. President, I am pleased to introduce legislation today
that will help the Department of Veterans Affairs reach out to
underserved veterans, through collaboration with community
organizations.
[[Page S2357]]
The Department of Veterans Affairs is the second largest cabinet
level Federal department, operating the Nation's largest health care
system. VA provides benefits and health care to millions of veterans
and their families every year. Without question, VA helps countless
veterans through its various programs every day, largely thanks to its
employees, who make it their mission to serve those who served their
country honorably.
Unfortunately, while VA makes a positive impact on the veterans it
serves, many others are left underserved. Far too often, these are
veterans already in difficult circumstances, those who could benefit
most from VA support. For example, veterans from rural areas must do
without the kind of local support systems urban and suburban veterans
often enjoy. Many veterans from racial and ethnic minority groups also
remain underserved by VA, regardless of their physical proximity to
veterans' programs.
More must be done for these veterans, who look at VA and see a system
either out of reach or out of touch. The legislation I have introduced
today pursues one potential solution: VA partnerships with community
based organizations.
If enacted, this bill would require VA to work with community based
organizations to reach out to veterans who are underserved. Five
community organizations, chosen by VA, would be selected for pilot
partnerships. Special consideration would be given to rural communities
and areas with a high proportion of minorities and other underserved
veterans. The five pilots, each in partnership with a VA medical
center, would focus on providing support to their underserved group by
helping servicemembers transition from military service to veteran
status, and helping them navigate the complicated veterans' health care
and benefits system. Also, the pilot programs would reach out to the
families of veterans, in recognition of the central role that families
play in helping veterans readjust and reintegrate.
As Mental Health America, the country's oldest and largest mental
health nonprofit, has pointed out, America's newest generation of
veterans is returning from combat with invisible wounds that require
care. These and other complicated injuries place new challenges on VA
to provide the quality health care and benefits veterans have earned
through their service. I hope that through the partnerships outlined in
this legislation, VA will be better able to provide services to
veterans who deserve support, yet are underserved.
______
By Mr. AKAKA:
S. 2797. A bill to authorize major medical facility projects and
major medical facility leases for the Department of Veterans Affairs
for fiscal year 2009, and for other purposes; to the Committee on
Veterans' Affairs.
Mr. AKAKA. Mr. President, today I introduce legislation requested by
the Secretary of Veterans Affairs, as a courtesy to the Secretary and
the Department of Veterans Affairs. Except in unusual circumstances, it
is my practice to introduce legislation requested by the administration
so that such measures will be available for review and consideration.
This ``by-request'' bill would authorize $1.87 billion in
construction projects in various areas of the country in fiscal year
2009. It also would authorize one new polytrauma center in San Antonio,
TX, and upgrades to the polytrauma center in Palo Alto, CA.
The bill would also extend and increase the total authorizations for
new VA Medical Centers in Denver, CO, and New Orleans, LA.
Finally, this bill authorizes $60 million in leases for 12 outpatient
clinics in various States and territories.
I am introducing this bill for the review and consideration of my
colleagues at the request of the administration. As chairman of the
Committee on Veterans' Affairs, I have not taken a position on this
legislation.
Mr. President, I ask unanimous consent that the text of the bill and
a transmittal letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 2797
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. AUTHORIZATION OF FISCAL YEAR 2009 MAJOR MEDICAL
FACILITY PROJECTS.
The Secretary of Veterans Affairs may carry out the
following major medical facility projects in fiscal year
2009, with each project to be carried out in the amount
specified for each project:
(1) Construction of an 80-bed replacement facility in Palo
Alto, California, to replace a seismically unsafe acute
psychiatric inpatient building, in an amount not to exceed
$54,000,000.
(2) Construction of an outpatient clinic to meet the
increased demand for diagnostic procedures, ambulatory
surgery, and specialty care in Lee County, Florida, in an
amount not to exceed $131,800,000.
(3) Seismic corrections to Building 1 at the Department of
Veterans Affairs Medical Center in San Juan, Puerto Rico, in
an amount not to exceed $225,900,000.
(4) Construction of a facility for a state-of-the-art
polytrauma healthcare and rehabilitation center in San
Antonio, Texas, in an amount not to exceed $66,000,000.
SEC. 2. EXTENSION OF AUTHORIZATION FOR MAJOR MEDICAL FACILITY
CONSTRUCTION PROJECTS PREVIOUSLY AUTHORIZED.
The Secretary of Veterans Affairs may carry out the
following major medical facility projects in fiscal year
2009, as originally authorized by section 801 of the Veterans
Benefits, Health Care, and Information Technology Act of 2006
(Public Law 109-461; 120 Stat. 3442) and as follows with each
project to be carried out in the amount specified for that
project:
(1) Replacement of the Department of Veterans Affairs
Medical Center, Denver, Colorado, in an amount not to exceed
$769,200,000.
(2) Restoration, new construction, or replacement of the
medical center facility for the Department of Veterans
Affairs Medical Center, New Orleans, Louisiana, due to damage
from Hurricane Katrina, in an amount not to exceed
$625,000,000.
SEC. 3. AUTHORIZATION OF FISCAL YEAR 2009 MAJOR MEDICAL
FACILITY LEASES.
The Secretary of Veterans Affairs may carry out the
following major medical facility leases in fiscal year 2009
at the locations specified, and in an amount for each lease
not to exceed the amount shown for each such location:
(1) For an outpatient clinic, Brandon, Florida, $4,326,000.
(2) For a community-based outpatient clinic, Colorado
Springs, Colorado, $3,995,000.
(3) For an outpatient clinic, Eugene, Oregon, $5,826,000.
(4) For expansion of an outpatient clinic, Green Bay,
Wisconsin, $5,891,000.
(5) For an outpatient clinic, Greenville, South Carolina,
$3,731,000.
(6) For a community-based outpatient clinic, Mansfield,
Ohio, $2,212,000.
(7) For a satellite outpatient clinic, Mayaguez, Puerto
Rico, $6,276,000.
(8) For a community-based outpatient clinic for Southeast
Phoenix, Mesa, Arizona, $5,106,000.
(9) For interim research space, Palo Alto, California,
$8,636,000.
(10) For expansion of a community-based outpatient clinic,
Savannah, Georgia, $3,168,000.
(11) For a community-based outpatient clinic for Northwest
Phoenix, Sun City, Arizona, $2,295,000.
(12) For a primary care annex, Tampa, Florida, $8,652,000.
SEC. 4. AUTHORIZATION OF APPROPRIATIONS.
(a) Authorization of Appropriations for Major Medical
Facility Projects.--There is authorized to be appropriated to
the Secretary of Veterans Affairs for fiscal year 2009 for
the Construction, Major Projects, account--
(1) $477,700,000 for the projects authorized in section 1;
and
(2) $1,394,200,000 for projects whose authorization is
extended by section 2.
(b) Authorization of Appropriations for Medical Facility
Leases.--There is authorized to be appropriated to the
Secretary of Veterans Affairs for fiscal year 2009 for the
Medical Facilities account, $60,114,000 for the leases
authorized in section 3.
(c) Limitation.--The projects authorized in sections 1 and
2 may only be carried out using--
(1) funds appropriated for fiscal year 2009 pursuant to the
authorization of appropriations in subsection (a) of this
section;
(2) funds available for Construction, Major Projects, for a
fiscal year before fiscal year 2009 that remain available for
obligation;
(3) funds available for Construction, Major Projects, for a
fiscal year after fiscal year 2009 that remain available for
obligation;
(4) funds appropriated for Construction, Major Projects,
for fiscal year 2009 for a category of activity not specific
to a project;
(5) funds appropriated for Construction, Major Projects,
for a fiscal year before 2009 for a category of activity not
specific to a project; and
(6) funds appropriated for Construction, Major Projects,
for a fiscal year after 2009 for a category of activity not
specific to a project.
[[Page S2358]]
____
Secretary of Veterans Affairs,
Washington, DC, February 13, 2008.
Hon. Richard B. Cheney,
President of the Senate,
Washington, DC.
Dear Mr. Vice President: I am pleased to submit the
enclosed draft bill to authorize $1,871,900,000 for
Department of Veterans Affairs (VA) major facility
construction projects for Fiscal Year 2009 and $60,114,000
for major facility leases for Fiscal Year 2009.
Title 38 U.S.C. section 8104(a)(2) requires statutory
authorization for all VA major medical facility construction
projects and all major medical facility leases prior to the
appropriation of funds. In accordance with title 38, the
draft bill authorizes six major medical facility construction
projects and twelve major medical facility leases. The six
major medical facility construction projects are located in:
Lee County, Florida; Palo Alto, California; San Antonio,
Texas; San Juan, Puerto, Rico; Denver, Colorado; and New
Orleans, Louisiana. Previously, Congress authorized funds
necessary for Denver and New Orleans under P.L. 109-461. This
proposed bill would authorize additional funds necessary to
complete the remaining construction for these projects.
The proposed project in Lee County provides a state-of-the-
art ambulatory care facility which is expected to improve the
``quality of life'' of the veteran population. Needed
services for diagnostic procedures, ambulatory surgery, and
specialty care will be provided in response to these areas
being identified as service shortfalls in the CARES analysis.
The proposed project in Palo Alto is required to replace a
functionally deficient and seismically unsafe acute
psychiatric inpatient building. This will be accomplished by
constructing an approximately 80-bed replacement facility.
The proposed project in San Antonio is for a state-of-the-art
polytrauma healthcare and rehabilitation center that will
include patient ward space and transitional housing space.
The proposed project in San Juan will provide needed seismic
corrections to Building 1 at the VA Medical Center.
The proposed project in Denver will provide a replacement
facility near the University of Colorado, Fitzsimons campus.
The project will accommodate the tertiary, secondary and
primary care operations for the Eastern Colorado Health Care
System. Previous authorization, in the amount of $98,000,000,
provided pursuant to P.L. 109-461, only satisfied the cost of
land acquisition and some architect engineering costs.
Additional authorization is required to complete this
project.
The proposed project in New Orleans will reestablish the
services in Southeast Louisiana that existed prior to
Hurricane Katrina. A tertiary care medical complex will be
constructed and will include 200 inpatient beds with 60
nursing home beds. Through P.L. 109-461, this project, as a
facility to be co-located with the Louisiana State University
Health Sciences Center in New Orleans (LSU), was authorized
in the amount of $300,000,000; however, additional
authorization is required to deliver the project described.
Authorization is requested in an amount not to exceed
$625,000,000 regardless of whether the project is co-located
with LSU as prescribed in P.L. 109-461.
The proposed authorization will allow leases for Outpatient
Clinics in Brandon, Florida; Eugene, Oregon; and Greenville,
South Carolina. An Outpatient Clinic will be expanded through
a lease in Green Bay, Wisconsin. A lease for a Satellite
Outpatient Clinic will be acquired in Mayaguez, Puerto Rico.
Leases for Community Based Outpatient Clinics will be
acquired in Colorado Springs, Colorado; Mansfield; Ohio;
Mesa, Arizona; and Sun City, Arizona. A lease in Savannah,
Georgia, will expand its Community Based Outpatient Clinic. A
lease for Interim Research Space will be acquired in Palo
Alto, California. A lease for a Primary Care Annex will be
acquired in Tampa, Florida.
The Office of Management and Budget advises that the
transmission of this legislative package is in accord with
the Administration's program.
Sincerely yours,
James B. Peake.
______
By Mr. NELSON of Florida:
S. 2803. A bill to amend the Act entitled ``An Act authorizing
associations of producers of aquatic products'' to include persons
engaged in the fishery industry as charter boats or recreational
fishermen, and for other purposes; to the Committee on Commerce,
Science, and Transportation.
Mr. NELSON of Florida. Mr. President. I rise today to introduce
legislation to aid an industry that is vital to the State of Florida
and that, like many others in this Nation, is suffering during the
current economic downturn: the charter and recreational fishing
industry.
I am introducing the Charter and Recreational Fishing Collective
Marketing Act of 2008. This bill would allow charter boat and other
recreational fishermen to act together in associations for the purposes
of catching, producing, and marketing aquatic products. By gaining
strength in numbers through such associations, charter and recreational
fishermen could negotiate lower prices when purchasing services and
products, such as insurance, fuel, ice, and other supplies.
If they choose to do so, this bill would also allow these
associations to implement vessel capacity reduction programs--in other
words, to buy-out those members who already wish to leave the industry
voluntarily but lack the financial wherewithal to do so. These
associations could also undertake research, such as scientific
monitoring of their fisheries, and in the process help improve
conservation and management of fishery resources.
Mr. President, this legislation does nothing more than provide
charter and recreational fishermen the same rights and abilities to
work collectively that commercial fishermen have enjoyed since 1934.
This legislation has no hearing on fishing allocations or related
regulations. In light of the great economic challenges that our country
is facing, we have an obligation to ensure the viability of industries
that support our coastal communities. The Charter and Recreational
Fishing Collective Marketing Act of 2008 would help us meet that
obligation.
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. 2803
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 ``The Charter and Recreational
Fishing Collective Marketing Act of 2008''.
SEC. 2. CHARTER BOATS AND RECREATIONAL FISHERMEN.
(a) In General.--The Act entitled ``An Act authorizing
associations of producers of aquatic products'', approved
June 25, 1934 (15 U.S.C. 521), is amended--
(1) in the second undesignated paragraph, by inserting
``and recreational'' after ``includes all commercial''; and
(2) by inserting after the first undesignated paragraph the
following:
``Persons engaged in the fishery industry, as charter boat
or recreational fishermen catching aquatic products, may act
together in associations, corporate or otherwise, with or
without capital stock, in collectively catching, producing,
and marketing such aquatic products, including implementing a
vessel capacity reduction program, improving the operational
and economic efficiency of a fishery, undertaking research,
and improving the conservation and management of a fishery
resource.''.
(b) Construction.--Nothing in this section or the
amendments made by this section shall be construed to
diminish or supersede any authority or provision of the
Magnuson-Sevens Fishery Conservation and Management Act (16
U.S.C. 1801 et seq.).
______
By Mr. NELSON of Florida (for himself and Mr. Martinez):
S. 2804. A bill to adjust the boundary of the Everglades National
Park, and for other purposes; to the Committee on Energy and Natural
Resources.
Mr. NELSON of Florida. 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. 2804
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 ``Everglades National Park
Boundary Adjustment Act of 2008''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Tarpon Basin property proposed for acquisition by
the Secretary (acting through the Director of the National
Park Service) contains habitat for--
(A) the wood stork and the West Indian manatee, each of
which is listed as an endangered species under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.); and
(B) the roseate spoonbill and the white-crowned pigeon,
each of which is listed as a threatened species by the
Florida Game and Fresh Water Fish Commission;
(2) the Tarpon Basin property also includes approximately
10 acres of subtropical hardwood hammock, a habitat found
only in South Florida and the Florida Keys;
(3) more than 70 percent of the hardwood hammock in South
Key Largo has been lost to development; and
(4) vessel owners often anchor the vessels of the owners in
a saltwater pond--
(A) that is located within the Tarpon Basin property; and
(B) to protect the vessels from tropical storms and
hurricanes.
SEC. 3. DEFINITIONS.
In this Act:
(1) Hurricane hole.--The term ``Hurricane Hole'' means the
saltwater pond that--
[[Page S2359]]
(A) is located east of the Intracoastal Waterway as the
Waterway passes through Dusenbury Creek; and
(B) has been used historically to moor sailboats during
tropical storms and hurricanes.
(2) Map.--The term ``map'' means the map entitled
``Proposed Tarpon Basin Boundary Revision'' and dated April
14, 2003.
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(4) Tarpon basin property.--The term ``Tarpon Basin
property'' means the land that--
(A) is comprised of approximately 600 acres of land and
water surrounding Tarpon Basin, as generally depicted on the
map; and
(B) is located in South Key Largo.
SEC. 4. BOUNDARY REVISION.
(a) Boundary Revision.--The boundary of the Everglades
National Park is adjusted to include the Tarpon Basin
property.
(b) Acquisition Authority.--
(1) In general.--In accordance with paragraph (2), the
Secretary may acquire, through a voluntary donation, sale, or
exchange, any land or interest in land that is located in the
Tarpon Basin property.
(2) Requirement relating to sales.--With respect to a sale
to acquire any land or interest in land under paragraph (1)
that is located in the Tarpon Basin property, the Secretary
may only use donated or appropriated funds.
(c) Availability of Map.--The map shall be on file and
available for public inspection in the appropriate offices of
the National Park Service.
(d) Administration.--The Secretary shall administer each
land and water added to the Everglades National Park by
subsection (a), or through a voluntary donation, sale, or
exchange under subsection (b)--
(1) as part of the Everglades National Park; and
(2) in accordance with applicable laws (including
regulations).
SEC. 5. USE OF HURRICANE HOLE.
(a) Authority to Issue Permits.--The Secretary may issue a
permit to any owner of a sailing vessel who, before the date
of enactment of this Act, had secured the sailing vessel of
the owner in Hurricane Hole to protect the sailing vessel
from a tropical storm or hurricane.
(b) Eligibility.--
(1) Evidence of prior use.--To be eligible to receive a
permit under subsection (a), an owner of a sailing vessel
shall provide to the Secretary evidence that the Secretary
determines to be sufficient to establish that the owner of
the sailing vessel had, before the date of enactment of this
Act, secured the sailing vessel of the owner in Hurricane
Hole to protect the vessel from a tropical storm or
hurricane.
(2) Indemnity requirement.--To be eligible to receive a
permit under subsection (a), an owner of a sailing vessel
shall agree to hold the United States harmless, and to
indemnify the United States from any claim or damage that may
arise from any activity conducted under the permit (including
damage to the sailing vessel that is the subject of the
permit).
(c) Conditions of Permit.--
(1) Sailing vessels.--A permit issued under subsection (a)
shall be valid only for a sailing vessel.
(2) Transferability.--A permit issued under subsection (a)
shall not be transferrable.
(3) Expiration.--A permit issued under subsection (a) shall
expire on the date of the death of the holder of the permit.
(d) Protection of Resources.--
(1) Authority of secretary.--The Secretary may include in a
permit issued under subsection (a) any term or condition that
the Secretary determines to be necessary--
(A) to protect the resources of the Everglades National
Park; and
(B) to ensure the safety of the public at the Everglades
National Park.
(2) Bond.--To accomplish each goal described in paragraph
(1), the Secretary may require each holder of a permit issued
under subsection (a) to post a bond.
(e) Fees.--The Secretary may charge a fee to recover the
cost of issuing, and monitoring the compliance of, the
permits under subsection (a).
SEC. 6. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to carry out this Act.
______
By Mr. BINGAMAN:
S. 2805. A bill to direct the Secretary of the Interior, acting
through the Commissioner of Reclamation, to assess the irrigation
infrastructure of the Rio Grande Pueblos in the State of New Mexico and
provide grants to, and enter into cooperative agreements with, the Rio
Grande Pueblos to repair, rehabilitate, or reconstruct existing
infrastructure, and for other purposes; to the Committee on Energy and
Natural Resources.
Mr. BINGAMAN. Mr. President, I rise today to introduce the Rio Grande
Pueblos Irrigation Infrastructure Improvement Act of 2008. This
legislation is based on recommendations made by the 2000 report by the
Bureau of Reclamation and Bureau of Indian Affairs entitled Pueblo
Irrigation Facilities Rehabilitation Report. This report identifies the
serious needs that exist in rehabilitating Pueblo Indian irrigation
infrastructure, and more importantly, the lack of any existing program
to meet these challenges.
The 18 Pueblos of the Rio Grande basin have historically sustained
themselves through agriculture, irrigating their crops with water from
the Rio Grande watershed. However, the number of Pueblo irrigation
works in serious disrepair has placed this way of life in jeopardy. In
many cases, diversion structures and other facilities are unsafe,
barely operable, and wholly inefficient, thereby preventing the
irrigation of historical farmland. Despite the time and effort the
Pueblo people have committed to operating and maintaining these
irrigation systems, the tribes lack the financial and technical
resources to carry out the necessary improvements by themselves.
Unfortunately, according to a recent GAO Report on the Bureau of
Indian Affairs' irrigation program, it appears that the BIA also lacks
the resources necessary to maintain irrigation infrastructure on Indian
land. Given this and the BIA's historical lack of attention to the
issue, it is clear that the Bureau of Reclamation may be best suited to
provide the technical expertise needed to assist the Pueblos. Over the
last 5 years, Reclamation has funded a number of water conservation
efforts within its irrigation projects in New Mexico. The work that's
been done has been highly beneficial, and it's time to include the Rio
Grande Pueblos in that effort.
Accordingly, this bill directs the Secretary of the Interior, through
the Bureau of Reclamation, to work with the eighteen Pueblos in the Rio
Grande basin to assess Pueblo irrigation infrastructure and initiate
projects to rehabilitate and repair such infrastructure on Pueblo
lands. Moreover, the activity authorized in the bill is consistent with
the goals of Reclamation's Water 2025 program. Recognizing the limited
resources available within Reclamation, though, the bill directs the
Secretary of the Interior to work with BIA, the Natural Resources
Conservation Service, and the Army Corps of Engineers to identify
opportunities to use the authorities of those agencies to collaborate
on projects that make sense to all involved.
By focusing Federal resources and expertise on this problem now, the
federal government, as part of its trust responsibility, will help
prevent further deterioration of Pueblo irrigation systems and any
additional rehabilitation costs in the future. The Rio Grande Pueblos
will benefit markedly from increased agricultural productivity,
increased water conservation, and overall safer facilities. More
importantly however, these improvements have the capacity to assist the
Pueblos in sustaining their historical way of life, both economically
and culturally. Finally, the overall health of the Rio Grande basin
will likely benefit through increased efficiency in water use. For
these reasons, I urge my colleagues to support this legislation.
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. 2805
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 ``Rio Grande Pueblos
Irrigation Infrastructure Improvement Act''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds that--
(1) drought, population increases, and environmental needs
are exacerbating water supply issues across the western
United States, including the Rio Grande Basin in New Mexico;
(2) a report developed by the Bureau of Reclamation and the
Bureau of Indian Affairs in 2000 identified a serious need
for the rehabilitation and repair of irrigation
infrastructure of the Rio Grande Pueblos;
(3) inspection of existing irrigation infrastructure of the
Rio Grande Pueblos shows that many key facilities, such as
diversion structures and main conveyance ditches, are unsafe
and barely, if at all, operable;
(4) the benefits of rehabilitating and repairing irrigation
infrastructure of the Rio Grande Pueblos include--
(A) water conservation;
(B) extending available water supplies;
(C) increased agricultural productivity;
(D) economic benefits;
(E) safer facilities; and
[[Page S2360]]
(F) the preservation of the culture of Indian Pueblos in
the State;
(5) certain Indian Pueblos in the Rio Grande Basin receive
water from facilities operated or owned by the Bureau of
Reclamation; and
(6) rehabilitation and repair of irrigation infrastructure
of the Rio Grande Pueblos would improve--
(A) overall water management by the Bureau of Reclamation;
and
(B) the ability of the Bureau of Reclamation to help
address potential water supply conflicts in the Rio Grande
Basin.
(b) Purpose.--The purpose of this Act is to direct the
Secretary--
(1) to assess the condition of the irrigation
infrastructure of the Rio Grande Pueblos;
(2) to establish priorities for the rehabilitation of
irrigation infrastructure of the Rio Grande Pueblos in
accordance with specified criteria; and
(3) to implement projects to rehabilitate and improve the
irrigation infrastructure of the Rio Grande Pueblos.
SEC. 3. DEFINITIONS.
In this Act:
(1) 2004 agreement.--The term ``2004 Agreement'' means the
agreement entitled ``Agreement By and Between the United
States of America and the Middle Rio Grande Conservancy
District, Providing for the Payment of Operation and
Maintenance Charges on Newly Reclaimed Pueblo Indian Lands in
the Middle Rio Grande Valley, New Mexico'' and executed in
September 2004 (including any successor agreements and
amendments to the agreement).
(2) Designated engineer.--The term ``designated engineer''
means a Federal employee designated under the Act of February
14, 1927 (69 Stat. 1098, chapter 138) to represent the United
States in any action involving the maintenance,
rehabilitation, or preservation of the condition of any
irrigation structure or facility on land located in the Six
Middle Rio Grande Pueblos.
(3) District.--The term ``District'' means the Middle Rio
Grande Conservancy District, a political subdivision of the
State established in 1925.
(4) Pueblo irrigation infrastructure.--The term ``Pueblo
irrigation infrastructure'' means any diversion structure,
conveyance facility, or drainage facility located on land of
a Rio Grande Pueblo that is associated with the delivery of
water for the irrigation of agricultural land.
(5) Rio grande basin.--The term ``Rio Grande Basin'' means
the headwaters of the Rio Chama and the Rio Grande Rivers
(including any tributaries) from the State line between
Colorado and New Mexico downstream to the elevation
corresponding with the spillway crest of Elephant Butte Dam
at 4,457.3 feet mean sea level.
(6) Rio grande pueblo .--The term ``Rio Grande Pueblo''
means any of the 18 Pueblos that--
(A) occupy land in the Rio Grande Basin; and
(B) are included on the list of federally recognized Indian
tribes published by the Secretary in accordance with section
104 of the Federally Recognized Indian Tribe List Act of 1994
(25 U.S.C. 479a-1).
(7) Secretary.--The term ``Secretary'' means the Secretary
of the Interior, acting through the Commissioner of
Reclamation.
(8) Six middle rio grande pueblos.--The term ``Six Middle
Rio Grande Pueblos'' means each of the Pueblos of Cochiti,
Santo Domingo, San Felipe, Santa Ana, Sandia, and Isleta.
(9) Special project.--The term ``special project'' has the
meaning given the term in the 2004 Agreement.
(10) State.--The term ``State'' means the State of New
Mexico.
SEC. 4. IRRIGATION INFRASTRUCTURE STUDY.
(a) Study.--
(1) In general.--On the date of enactment of this Act, the
Secretary, in accordance with paragraph (2), and in
consultation with the Rio Grande Pueblos, shall--
(A) conduct a study of Pueblo irrigation infrastructure;
and
(B) based on the results of the study, develop a list of
projects (including a cost estimate for each project), that
are recommended to be implemented over a 10-year period to
repair, rehabilitate, or reconstruct Pueblo irrigation
infrastructure.
(2) Required consent.--The Secretary shall carry out
paragraph (1) with the consent of each Pueblo that notifies
the Secretary of the intention of the Pueblo to participate
in--
(A) the conduct of the study under paragraph (1)(A); and
(B) the development of the list of projects under paragraph
(1)(B).
(b) Priority.--
(1) Consideration of factors.--
(A) In general.--In developing the list of projects under
subsection (a)(1)(B), the Secretary shall--
(i) consider each of the factors described in paragraph
(2); and
(ii) prioritize the projects recommended for implementation
based on--
(I) a review of each of the factors; and
(II) a consideration of the projected benefits of the
project on completion of the project.
(B) Eligibility of projects.--A project is eligible to be
considered and prioritized by the Secretary if the project
addresses at least 1 factor described in paragraph (2).
(2) Factors.--The factors referred to in paragraph (1)
are--
(A)(i) the extent of disrepair of the Pueblo irrigation
infrastructure; and
(ii) the effect of the disrepair on the ability of the
applicable Rio Grande Pueblo to irrigate agricultural land
using Pueblo irrigation infrastructure;
(B) whether, and the extent that, the repair,
rehabilitation, or reconstruction of the Pueblo irrigation
infrastructure would provide an opportunity to conserve
water;
(C)(i) the economic and cultural impacts that the Pueblo
irrigation infrastructure that is in disrepair has on the
applicable Rio Grande Pueblo; and
(ii) the economic and cultural benefits that the repair,
rehabilitation, or reconstruction of the Pueblo irrigation
infrastructure would have on the applicable Rio Grande
Pueblo;
(D) the opportunity to address water supply or
environmental conflicts in the applicable river basin if the
Pueblo irrigation infrastructure is repaired, rehabilitated,
or reconstructed; and
(E) the overall benefits of the project to efficient water
operations on the land of the applicable Rio Grande Pueblo.
(c) Consultation.--In developing the list of projects under
subsection (a)(1)(B), the Secretary shall consult with the
Director of the Bureau of Indian Affairs (including the
designated engineer with respect to each proposed project
that affects the Six Middle Rio Grande Pueblos), the Chief of
the Natural Resources Conservation Service, and the Chief of
Engineers to evaluate the extent to which programs under the
jurisdiction of the respective agencies may be used--
(1) to assist in evaluating projects to repair,
rehabilitate, or reconstruct Pueblo irrigation
infrastructure; and
(2) to implement--
(A) a project recommended for implementation under
subsection (a)(1)(B); or
(B) any other related project (including on-farm
improvements) that may be appropriately coordinated with the
repair, rehabilitation, or reconstruction of Pueblo
irrigation infrastructure to improve the efficient use of
water in the Rio Grande Basin.
(d) Report.--Not later than 18 months after the date of
enactment of this Act, the Secretary shall submit to the
Committee on Energy and Natural Resources of the Senate and
the Committee on Resources of the House of Representatives a
report that includes--
(1) the list of projects recommended for implementation
under subsection (a)(1)(B); and
(2) any findings of the Secretary with respect to--
(A) the study conducted under subsection (a)(1)(A);
(B) the consideration of the factors under subsection
(b)(2); and
(C) the consultations under subsection (c).
(e) Biennial Review.--Not later than 2 years after the date
on which the Secretary submits the report under subsection
(d) and biennially thereafter, the Secretary, in consultation
with each Rio Grande Pueblo, shall--
(1) review the report submitted under subsection (d); and
(2) update the list of projects described in subsection
(d)(1) in accordance with each factor described in subsection
(b)(2), as the Secretary determines to be appropriate.
SEC. 5. IRRIGATION INFRASTRUCTURE GRANTS.
(a) In General.--The Secretary may provide grants to, and
enter into cooperative agreements with, the Rio Grande
Pueblos to plan, design, construct, or otherwise implement
projects to repair, rehabilitate, reconstruct, or replace
Pueblo irrigation infrastructure that are recommended for
implementation under section 4(a)(1)(B)--
(1) to increase water use efficiency and agricultural
productivity for the benefit of a Rio Grande Pueblo;
(2) to conserve water; or
(3) to otherwise enhance water management or help avert
water supply conflicts in the Rio Grande Basin.
(b) Limitation.--Assistance provided under subsection (a)
shall not be used for--
(1) the repair, rehabilitation, or reconstruction of any
major impoundment structure;
(2) any on-farm improvements; or
(3) the rehabilitation of any Pueblo irrigation
infrastructure for the purpose of irrigating Rio Grande
Pueblo land that has not been historically irrigated.
(c) Consultation.--In carrying out a project under
subsection (a), the Secretary shall--
(1) consult with, and obtain the approval of, the
applicable Rio Grande Pueblo;
(2) consult with the Director of the Bureau of Indian
Affairs; and
(3) as appropriate, coordinate the project with any work
being conducted under the irrigation operations and
maintenance program of the Bureau of Indian Affairs.
(d) Cost-Sharing Requirement.--
(1) Federal share.--
(A) In general.--Except as provided in subparagraph (B),
the Federal share of the total cost of carrying out a project
under subsection (a) shall be not more than 75 percent.
(B) Exception.--The Secretary may waive or limit the non-
Federal share required under subparagraph (A) if the
Secretary determines, based on a demonstration of financial
hardship by the Rio Grande Pueblo, that the Rio Grande Pueblo
is unable to contribute the required non-Federal share.
(2) District contributions.--
[[Page S2361]]
(A) In general.--The Secretary may accept from the District
a partial or total contribution toward the non-Federal share
required for a project carried out under subsection (a) on
land located in any of the Six Middle Rio Grande Pueblos if
the Secretary determines that the project is a special
project.
(B) Limitation.--Nothing in subparagraph (A) requires the
District to contribute to the non-Federal share of the cost
of a project carried out under subsection (a).
(3) State contributions.--
(A) In general.--The Secretary may accept from the State a
partial or total contribution toward the non-Federal share
for a project carried out under subsection (a).
(B) Limitation.--Nothing in subparagraph (A) requires the
State to contribute to the non-Federal share of the cost of a
project carried out under subsection (a).
(4) Form of non-federal share.--The non-Federal share under
paragraph (1)(A) may be in the form of in-kind contributions,
including the contribution of any valuable asset or service
that the Secretary determines would substantially contribute
to a project carried out under subsection (a).
(e) Operation and Maintenance.--The Secretary may not use
any amount made available under section 8(b) to carry out the
operation or maintenance of any project carried out under
subsection (a).
SEC. 6. EFFECT ON EXISTING AUTHORITY AND RESPONSIBILITIES.
Nothing in this Act--
(1) affects any existing project-specific funding
authority; or
(2) limits or absolves the United States from any
responsibility to any Rio Grande Pueblo (including any
responsibility arising from a trust relationship or from any
Federal law (including regulations), Executive order, or
agreement between the Federal Government and any Rio Grande
Pueblo).
SEC. 7. EFFECT ON PUEBLO WATER RIGHTS OR STATE WATER LAW.
(a) Pueblo Water Rights.--Nothing in this Act (including
the implementation of any project carried out in accordance
with this Act) affects the right of any Pueblo to receive,
divert, store, or claim a right to water, including the
priority of right and the quantity of water associated with
the water right under Federal or State law.
(b) State Water Law.--Nothing in this Act preempts or
affects--
(1) State water law; or
(2) an interstate compact governing water.
SEC. 8. AUTHORIZATION OF APPROPRIATIONS.
(a) Study.--There is authorized to be appropriated to carry
out section 4 $4,000,000.
(b) Projects.--There is authorized to be appropriated to
carry out section 5 $6,000,000 for each of fiscal years 2010
through 2019.
______
By Mrs. FEINSTEIN (for herself and Ms. Snowe):
S. 2806. A bill to require the Administrator of the Environmental
Protection Agency to reconsider the decision of the Administrator to
deny the request of the State of California to regulate greenhouse gas
emissions from new motor vehicles, and to complete further proceedings
in accordance with the decision of the Supreme Court in Massachusetts
v. Environmental Protection Agency; to the Committee on Environment and
Public Works.
Mrs. FEINSTEIN. Mr. President, I rise today, on the 1-year
anniversary of the Supreme Court's landmark Massachusetts v. EPA
decision on global warming pollution, to introduce the Greenhouse Gas
Endangerment Finding Deadline and California Waiver Reconsideration
Act. The bill would force the EPA and this administration to act--at
long last--against global warming.
This legislation will impose two significant deadlines on the
Environmental Protection Agency.
First, the legislation gives EPA 60 days to respond to the
Massachusetts v. EPA ruling.
Second, this bill requires EPA to reconsider its unprecedented
decision to deny the State of California a Federal waiver that would
have allowed the State to limit tailpipe greenhouse gas pollution from
cars and trucks.
Unfortunately, deadlines for EPA action are necessary in both cases.
In its landmark Massachusetts v. EPA ruling, issued 1 year ago today,
the Supreme Court gave EPA a specific task: Determine whether the
emissions of greenhouse gases endanger public health and welfare, and
then comply with the Clean Air Act requirements that result from this
determination.
Yet 1 year later, EPA has done nothing. EPA Administrator Johnson
pledged to act by December, but that day came and went.
I wrote to Administrator Johnson in January asking for a timeline for
action.
He wrote back to tell me he could not give me one.
Last month, when I asked Mr. Johnson how many people were working on
this endangerment finding, he could not tell me if anyone was working
on it.
In a March 27, 2008, letter to me and many of my colleagues, EPA
indicated that it intends to begin soliciting comments from the public
as the Agency ``considers'' regulations of greenhouse gas emissions.
EPA's letter indicates that it does not intend to determine whether
greenhouse gases endanger public health and welfare, as the court
instructed it to do, anytime in the near future.
Instead EPA's Administrator stated that ``implementing the Supreme
Court's decision could affect many sources beyond just the cars and
trucks considered by the Court,'' suggesting that the U.S. Supreme
Court would have come to a different conclusion had it better
understood the Clean Air Act.
The process will not begin until ``later this spring.''
EPA has no further timeline for action, nor has it set a deadline for
completion.
The plaintiffs in the Massachusetts v. EPA case today returned to
court to compel the EPA to act. This bill is intended to work in tandem
with their suit, compelling EPA to take an action, which both the
courts and the law indicate should not be unreasonably delayed. No one
should interpret this bill as a substitute for the courts taking action
to compel EPA to act without delay under existing law. Both the new
lawsuit and this bill are prompted by the clear failure of EPA to act
on a reasonable timeline.
Bottom Line: Responding to the Supreme Court's remand cannot and
should not be delayed for an undefined period of time.
EPA has had a full year to collect public comment and consider the
implications of its response, and it has done so. EPA staff told
Congress that they spent thousands of hours writing an endangerment
finding and proposed regulations this past autumn. A draft has already
been submitted to the White House Office of Management and Budget.
This legislation puts EPA on the clock to finish the job it was
assigned by the highest court in the land.
The second deadline in this legislation requires the EPA
Administrator to reconsider, and either confirm or reject, EPA
Administrator Johnson's December decision to deny California a Clean
Air Act waiver.
Without the waiver, California and 15 other States are unable to
control greenhouse gas emissions from automobiles.
EPA Administrator Johnson denied this waiver even though EPA's legal
and technical staff unanimously recommended that the waiver be issued.
EPA's attorneys had told Mr. Johnson that a waiver denial in this
case would ``in effect, amend the Clean Air Act by Administrative
Action.''
They told him that EPA would be sued and ``was likely to lose suit.''
The decision was made before the legal justification had been
written. EPA staff had been cut out of the process entirely.
His official legal document, issued more than 2 months after Mr.
Johnson issued the decision, asserts that the waiver was denied based
almost entirely on the legislative history of the 1967 Clean Air Act.
His legal document made no mention of the fact that Congress rewrote
the operative section in 1977.
In hearing after hearing, Mr. Johnson has asserted that he made this
decision himself. Apparently he read the law differently than every one
of his agency's experts and attorneys--a different reading he has never
explained. But even he has acknowledged that the process under which
this decision was made was unusual.
I believe that an unusual process led to an unusual result.
This bill would give EPA the opportunity to reconsider this decision.
And with this reconsideration we will see whether a normal process will
produce a different result.
This legislation sets firm deadlines by which EPA must complete its
work. It instructs the administration to act in the face of climate
change. It brings an end to the delay and obfuscation that impede
progress.
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:
[[Page S2362]]
S. 2806
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 ``Greenhouse Gas Endangerment
Finding Deadline and California Waiver Reconsideration Act''.
SEC. 2. REQUIREMENTS OF ADMINISTRATOR OF ENVIRONMENTAL
PROTECTION AGENCY.
(a) Reconsideration of Denial.--Not later than June 30,
2009, the Administrator of the Environmental Protection
Agency (referred to in this section as the ``Administrator'')
shall reconsider, and confirm or reverse, the decision of the
Administrator to deny the request of the State of California
to regulate greenhouse gas emissions from new motor vehicles.
(b) Issuance of Finding.--Not later than 60 days after the
date of enactment of this Act, the Administrator shall issue
a finding in accordance with--
(1) section 202(a)(1) of the Clean Air Act (42 U.S.C.
7521(a)(1)) with respect to whether the emission of
greenhouse gases from any 1 or more classes of new motor
vehicles or new motor vehicle engines, in the judgment of the
Administrator, causes or contributes to air pollution that
may reasonably be anticipated to endanger public health or
welfare; and
(2) the decision of the Supreme Court in Massachusetts v.
Environmental Protection Agency, 127 S. Ct. 1438 (2007).
____________________