[Congressional Record Volume 154, Number 107 (Thursday, June 26, 2008)]
[Senate]
[Pages S6290-S6292]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself, Mr Lautenberg, and Mr. Kennedy):
  S. 3206. A bill to amend titles V, XVIII, and XIX of the Social 
Security Act to promote cessation of tobacco use under the Medicare 
program, the Medicaid program, and the maternal and child health 
services block grant program; to the Committee on Finance.
  Mr. DURBIN. Mr. President, I rise today to introduce legislation to 
help millions of Americans overcome a deadly addiction: the addiction 
to tobacco. The Medicare, Medicaid and MCH Smoking Cessation Promotion 
Act of 2008 will help make smoking cessation therapy available to 
recipients of Medicare, Medicaid, and the Maternal and Child Health, 
MCH, Program.
  More than 45 million adults in the United States smoke cigarettes. 
Approximately 90 percent started smoking before the age of 14. Despite 
the fact that we have known for decades that cigarette smoking are the 
leading preventable cause of death, 1,600 adults become regular smokers 
each day, including 4,000 kids. Depending on your race/ethnicity, 
socioeconomic status, even where you live, the likelihood that you are 
a smoker varies greatly. African-Americans are twice as likely as the 
general population to smoke. Communities in the South are more likely 
to be smoker-friendly than other communities in the U.S. While 22.5 
percent of the general adult population in the U.S. are current 
smokers, the percentage is about 50 percent higher among Medicaid 
recipients. Thirty-six percent of adults covered by Medicaid smoke.
  We have a moral argument and an economic argument to end the 
addiction to nicotine. Morally, how do we ignore the deaths of 438,000 
smokers or 8.6 million Americans living with serious smoking-related 
illnesses? Smoking causes virtually all cases of lung cancer and 
contributes to primary heart disease, peripheral vascular disease, 
chronic obstructive pulmonary disease, COPD, and other deadly health 
ailments. It is too often a bleak future for smokers and their 
families. An American Legacy Foundation report reminds us that second-
hand smoke in children of smokers leads to asthma and chronic ear 
infections in children but also that 43,000 children are orphaned every 
year because of tobacco-related deaths.
  We are not only paying a heavy health toll, but an economic price as 
well. According to the Campaign for Tobacco Free Kids, health care 
expenditures caused by smoking is approaching $100 billion. Our federal 
government pays $17.6 billion in smoking-caused Medicaid payments and 
$27.4 billion in smoking-caused Medicare expenditures.
  Ironically, we do not hear that much about how many smokers America--
70 percent--want to quit. Unfortunately, they face long odds--in 2000, 
only about 5 percent of smokers were successful in quitting long-term. 
Overcoming an addiction to tobacco is arguably one of the single most 
important lifestyle changes that can improve and extend lives. However, 
most smokers who want to quit don't appreciate how hard it really is to 
break an addition to nicotine.
  This is why it is essential that we make this decision and the 
courage that it takes as easy as possible. States are already stepping 
up to the plate when it comes to smoking cessation. Last year in my 
home State of Illinois, a record-breaking 36 cities and counties 
enacted smoke-free laws, more than any other State in the Nation. More 
and more Illinoisans and Americans nationwide are realizing that life 
without smoking is possible. And the support for cessation does not end 
there. In fact, in 2003, 37 States had some form of coverage under 
Medicaid for at least one evidence-based treatment for smoking 
addiction. States like New Jersey and Oregon now have some of the 
lowest smoking-related Medicaid costs.
  Studies have shown that reducing adult smoking through tobacco use 
treatment pays immediate dividends, both in terms of health 
improvements and cost savings. Shortly after quitting smoking, blood 
circulation improves, carbon monoxide levels in the blood decrease, 
the risk of heart attack decreases, lung function and breathing are 
improved, and coughing decreases.

  Pregnant women who quit smoking before their second trimester 
decrease the chances that they will give birth to a low-birth-weight 
baby. Over the long term, quitting will reduce a person's risk of heart 
disease and stroke, improve symptoms of COPD, reduce the risk of 
developing smoking-caused cancer, and extend life expectancy.
  We are fortunate to have identified clinically proven, effective 
strategies to help smokers quit. Advancements in treating tobacco use 
and nicotine addiction using pharmacotherapy and counseling have helped 
millions kick the habit. An updated clinical practice guideline 
released in May of 2008 by the U.S. Public Health Service urges health 
care insurers and purchasers to include counseling and FDA-approved 
pharmacologic treatments as a covered benefit. The Guideline also 
emphasizes the role that counseling, especially in conjunction with 
medication, increases the odds of success in quitting. As we urge 
healthcare insurers and purchasers to offer this important benefit, so 
too should our government sponsored health programs keep pace.
  I am proud to be joined by my colleagues Senators Kennedy and 
Lautenberg to introduce the Medicare, Medicaid and MCH Smoking 
Cessation Promotion Act of 2008 and require government-sponsored health 
programs to cover this important benefit. The Medicare, Medicaid, and 
MCH Smoking Cessation Promotion Act of 2008 makes it easier for people 
to have access to smoking cessation treatment therapies. It does three 
meaningful things.
  First, this bill adds a smoking cessation counseling benefit and 
coverage of FDA-approved tobacco cessation drugs to Medicare. By 2020, 
17 percent of the U.S. population will be 65 years of age or older. It 
is estimated that Medicare will pay $800 billion to treat tobacco 
related diseases over the next 20 years.
  Second, this bill provides coverage for counseling, prescription and 
non-prescription smoking cessation drugs in the Medicaid program. The 
bill eliminates the provision in current federal law that allows States 
to exclude FDA-approved smoking cessation therapies from coverage under 
Medicaid. Despite the fact that the States have received payments from 
their successful Federal lawsuit against the tobacco industry, less 
than half the States provide coverage for smoking cessation in their 
Medicaid program. Even if Medicaid covered cessation products and 
services exclusively to pregnant women, we would see significant cost 
savings and health improvements. Children whose mothers smoke during 
pregnancy are almost twice as likely to develop asthma as those whose 
mothers did not. Over 7 years, reducing smoking prevalence by just one 
percentage point among pregnant women would prevent 57,200 low birth 
weight births and save $572 million in direct medical costs.
  Third, this bill ensures that the Maternal and Child Health Program 
recognizes that medications used to promote smoking cessation and the 
inclusion of anti-tobacco messages in health promotion are considered 
part of quality maternal and child health services.
  As Congress begins to examine more closely the impact of tobacco on 
our country--considering regulation by the FDA or raising taxes to pay 
for public health priorities--we must make sure we assist those 
fighting this deadly addiction. I hope my colleagues will join me in 
cosponsoring this legislation and taking a stand for the public health 
of our Nation.

[[Page S6291]]

  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. 3206

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Medicare, Medicaid, and MCH 
     Tobacco Cessation Promotion Act of 2008''.

     SEC. 2. MEDICARE COVERAGE OF COUNSELING FOR CESSATION OF 
                   TOBACCO USE.

       (a) Coverage.--Section 1861(s)(2) of the Social Security 
     Act (42 U.S.C. 1395x(s)(2)) is amended--
       (1) in subparagraph (Z), by striking ``and'' at the end;
       (2) in subparagraph (AA)(iii), by inserting ``and'' at the 
     end; and
       (3) by adding at the end the following new subparagraph:
       ``(BB) counseling for cessation of tobacco use (as defined 
     in subsection (ddd));''.
       (b) Services Described.--Section 1861 of the Social 
     Security Act (42 U.S.C. 1395x) is amended by adding at the 
     end the following new subsection:
       ``(ddd) Counseling for Cessation of Tobacco Use.--(1)(A) 
     Subject to subparagraph (B), the term `counseling for 
     cessation of tobacco use' means diagnostic, therapy, and 
     counseling services for cessation of tobacco use for 
     individuals who use tobacco products or who are being treated 
     for tobacco use which are furnished--
       ``(i) by or under the supervision of a physician;
       ``(ii) by a practitioner described in clause (i), (iii), 
     (iv), (v) or (vi) of section 1842(b)(18)(C); or
       ``(iii) by a licensed tobacco cessation counselor (as 
     defined in paragraph (2)).
       ``(B) Such term is limited to--
       ``(i) services recommended in `Treating Tobacco Use and 
     Dependence: A Clinical Practice Guideline', published by the 
     Public Health Service in May 2008, or any subsequent 
     modification of such Guideline; and
       ``(ii) such other services that the Secretary recognizes to 
     be effective.
       ``(2) In this subsection, the term `licensed tobacco 
     cessation counselor' means a tobacco cessation counselor 
     who--
       ``(A) is licensed as such by the State (or in a State which 
     does not license tobacco cessation counselors as such, is 
     legally authorized to perform the services of a tobacco 
     cessation counselor in the jurisdiction in which the 
     counselor performs such services); and
       ``(B) meets uniform minimum standards relating to basic 
     knowledge, qualification training, continuing education, and 
     documentation that are established by the Secretary for 
     purposes of this subsection.''.
       (c) Payment and Elimination of Cost-Sharing for Counseling 
     for Cessation of Tobacco Use.--
       (1) Payment and elimination of coinsurance.--Section 
     1833(a)(1) of the Social Security Act (42 U.S.C. 1395l(a)(1)) 
     is amended--
       (A) by striking ``and'' before ``(V)''; and
       (B) by inserting before the semicolon at the end the 
     following: ``, and (W) with respect to counseling for 
     cessation of tobacco use (as defined in section 1861(ddd)), 
     the amount paid shall be 100 percent of the lesser of the 
     actual charge for the service or the amount determined by a 
     fee schedule established by the Secretary for purposes of 
     this subparagraph''.
       (2) Elimination of coinsurance in outpatient hospital 
     settings.--
       (A) Exclusion from opd fee schedule.--Section 
     1833(t)(1)(B)(iv) of the Social Security Act (42 U.S.C. 
     1395l(t)(1)(B)(iv)) is amended by striking ``and diagnostic 
     mammography'' and inserting ``, diagnostic mammography, or 
     counseling for cessation of tobacco use (as defined in 
     section 1861(ddd))''.
       (B) Conforming amendments.--Section 1833(a)(2) of the 
     Social Security Act (42 U.S.C. 1395l(a)(2)) is amended--
       (i) in subparagraph (F), by striking ``and'' after the 
     semicolon at the end;
       (ii) in subparagraph (G)(ii), by striking the comma at the 
     end and inserting ``; and''; and
       (iii) by inserting after subparagraph (G)(ii) the following 
     new subparagraph:
       ``(H) with respect to counseling for cessation of tobacco 
     use (as defined in section 1861(ddd)) furnished by an 
     outpatient department of a hospital, the amount determined 
     under paragraph (1)(W),''.
       (3) Elimination of deductible.--The first sentence of 
     section 1833(b) of the Social Security Act (42 U.S.C. 
     1395l(b)) is amended--
       (A) by striking ``and'' before ``(8)''; and
       (B) by inserting before the period the following: ``, and 
     (9) such deductible shall not apply with respect to 
     counseling for cessation of tobacco use (as defined in 
     section 1861(ddd))''.
       (d) Application of Limits on Billing.--Section 
     1842(b)(18)(C) of the Social Security Act (42 U.S.C. 
     1395u(b)(18)(C)) is amended by adding at the end the 
     following new clause:
       ``(vii) A licensed tobacco cessation counselor (as defined 
     in section 1861(ddd)(2)).''.
       (e) Inclusion as Part of Initial Preventive Physical 
     Examination.--Section 1861(ww)(2) of the Social Security Act 
     (42 U.S.C. 1395x(ww)(2)) is amended by adding at the end the 
     following new subparagraph:
       ``(M) Counseling for cessation of tobacco use (as defined 
     in subsection (ddd)).''.
       (f) Effective Date.--The amendments made by this section 
     shall apply to services furnished on or after the date that 
     is 1 year after the date of enactment of this Act.

     SEC. 3. MEDICARE COVERAGE OF TOBACCO CESSATION 
                   PHARMACOTHERAPY.

       (a) Inclusion of Tobacco Cessation Agents as Covered 
     Drugs.--Section 1860D-2(e)(1) of the Social Security Act (42 
     U.S.C. 1395w-102(e)(1)) is amended--
       (1) in subparagraph (A), by striking ``or'' after the 
     semicolon at the end;
       (2) in subparagraph (B), by striking the comma at the end 
     and inserting ``; or''; and
       (3) by inserting after subparagraph (B) the following new 
     subparagraph:
       ``(C) any agent approved by the Food and Drug 
     Administration for purposes of promoting, and when used to 
     promote, tobacco cessation that may be dispensed without a 
     prescription (commonly referred to as an `over-the-counter' 
     drug), but only if such an agent is prescribed by a physician 
     (or other person authorized to prescribe under State law),''.
       (b) Establishment of Categories and Classes Consisting of 
     Tobacco Cessation Agents.--Section 1860D-4(b)(3)(C) of the 
     Social Security Act (42 U.S.C. 1395w-104(b)(3)(C)) is amended 
     by adding at the end the following new clause:
       ``(iv) Categories and classes of tobacco cessation 
     agents.--There shall be a therapeutic category or class of 
     covered part D drugs consisting of agents approved by the 
     Food and Drug Administration for cessation of tobacco use. 
     Such category or class shall include tobacco cessation agents 
     described in subparagraphs (A) and (C) of section 1860D-
     2(e)(1).''.
       (c) Conforming Amendment.--Section 1860D-2(e)(2)(A) of the 
     Social Security Act (42 U.S.C. 1395w-102(e)(2)(A)) is amended 
     by striking ``, other than subparagraph (E) of such section 
     (relating to smoking cessation agents),''.

     SEC. 4. PROMOTING CESSATION OF TOBACCO USE UNDER THE MEDICAID 
                   PROGRAM.

       (a) Coverage of Tobacco Cessation Counseling Services.--
       (1) In general.--Section 1905(a) of the Social Security Act 
     (42 U.S.C. 1396d(a)) is amended--
       (A) in paragraph (27), by striking ``and'' after the 
     semicolon at the end;
       (B) in paragraph (28), by striking the comma at the end and 
     inserting ``; and''; and
       (C) by inserting after paragraph (28) the following new 
     paragraph:
       ``(29) at the option of the State, counseling for cessation 
     of tobacco use (as defined in section 1861(ddd)),''.
       (2) Conforming amendment.--Section 1902(a)(10)(C)(iv) of 
     the Social Security Act (42 U.S.C. 1396a(a)(10)(C)(iv)) is 
     amended by inserting ``or (29)'' after ``(24)''.
       (b) Elimination of Optional Exclusion From Medicaid 
     Prescription Drug Coverage for Tobacco Cessation 
     Medications.--Section 1927(d)(2) of the Social Security Act 
     (42 U.S.C. 1396r-8(d)(2)) is amended--
       (1) by striking subparagraph (E);
       (2) by redesignating subparagraphs (F) through (J) as 
     subparagraphs (E) through (I), respectively; and
       (3) in subparagraph (F) (as redesignated by paragraph (2)), 
     by inserting before the period at the end the following: ``, 
     other than agents approved by the Food and Drug 
     Administration for purposes of promoting, and when used to 
     promote, tobacco cessation''.
       (c) Removal of Cost-Sharing for Tobacco Cessation 
     Counseling Services and Medications.--Subsections (a)(2) and 
     (b)(2) of section 1916 of the Social Security Act (42 U.S.C. 
     1396o) are each amended--
       (1) in subparagraph (D), by striking ``or'' after the comma 
     at the end;
       (2) in subparagraph (E), by striking ``; and'' and 
     inserting ``, or''; and
       (3) by adding at the end the following new subparagraph:
       ``(F)(i) counseling for cessation of tobacco use described 
     in section 1905(a)(29); or
       ``(ii) covered outpatient drugs (as defined in paragraph 
     (2) of section 1927(k), and including nonprescription drugs 
     described in paragraph (4) of such section) that are 
     prescribed for purposes of promoting, and when used to 
     promote, tobacco cessation; and''.
       (d) Increased FMAP for Tobacco Cessation Counseling 
     Services and Medications.--The first sentence of section 
     1905(b) of the Social Security Act (42 U.S.C. 1396d(b)) is 
     amended--
       (1) by striking ``and'' before ``(4)''; and
       (2) by inserting before the period the following: ``, and 
     (5) for purposes of this title, the Federal medical 
     assistance percentage shall be 80 percent with respect to 
     amounts expended as medical assistance for counseling for 
     cessation of tobacco use described in subsection (a)(29) and 
     for covered outpatient drugs (as defined in paragraph (2) of 
     section 1927(k), and including nonprescription drugs 
     described in paragraph (4) of such section) that are 
     prescribed for purposes of promoting, and when used to 
     promote, tobacco cessation''.
       (e) Effective Date.--The amendments made by this section 
     shall apply to services furnished on or after the date that 
     is 1 year after the date of enactment of this Act.

     SEC. 5. PROMOTING CESSATION OF TOBACCO USE UNDER THE MATERNAL 
                   AND CHILD HEALTH SERVICES BLOCK GRANT PROGRAM.

       (a) Quality Maternal and Child Health Services Includes 
     Tobacco Cessation Counseling and Medications.--Section 501 of 
     the Social Security Act (42 U.S.C. 701) is amended by adding 
     at the end the following new subsection:

[[Page S6292]]

       ``(d) For purposes of this title, quality maternal and 
     child health services include the following:
       ``(1) Counseling for cessation of tobacco use (as defined 
     in section 1861(ddd)).
       ``(2) The encouragement of the prescribing and use of 
     agents approved by the Food and Drug Administration for 
     purposes of tobacco cessation.
       ``(3) The inclusion of messages that discourage tobacco use 
     in health promotion counseling.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect on the date that is 1 year after the date 
     of enactment of this Act.
                                 ______