[Congressional Record Volume 155, Number 55 (Wednesday, April 1, 2009)]
[Senate]
[Pages S4179-S4181]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself and Mr. Kennedy):
  S. 770. 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, tobacco is responsible for 1 in 5 deaths 
in the U.S.--that is 438,000 deaths every year. Sadly, another 50,000 
Americans die each year from exposure to second hand smoke. Just this 
year, scientists discovered another danger in ``third hand smoke'' 
which describes the chemicals that cling to smokers'' hair and 
clothing, and linger in cushions and carpeting long after smoke has 
cleared a room. This residue includes heavy metals, carcinogens and 
even radioactive materials that young children can get on their hands 
and ingest, especially if they are crawling or playing on the floor.
  Despite the known dangers of tobacco use, more than 45 million adults 
in the U.S. smoke cigarettes. Approximately 90 percent of those adults 
started smoking before the age of 14. Every day over 3,500 kids under 
age 18 try smoking for the first time, and of these, 1,100 will become 
regular, daily smokers. Between \1/3\ and \1/2\ will eventually die as 
a result of their addiction.
  The likelihood of being a smoker varies depending on your ethnicity, 
socioeconomic status, and even where you live. African-Americans are 
twice as likely as the general population to smoke, and communities in 
the South are more likely to be smoker-friendly than other communities 
in the country. While 22.5 percent of the general adult population in 
the U.S. currently smokes, the percentage is about 50 percent higher 
among Medicaid recipients. Thirty-six percent of adults covered by 
Medicaid smoke.
  The costs to our Nation of tobacco use are staggering. Total health 
costs attributable to tobacco approach $100 billion annually, and 
comprise an estimated 14 percent of all Medicaid costs. Our Federal 
Government pays $17.6 billion through Medicaid and $27.4 billion 
through Medicare for smoking related illnesses. Tobacco use is a 
leading cause of pregnancy complications, premature birth, and low 
birth weight.
  Despite the fact that nicotine is a highly addictive drug, research 
has confirmed that smoking cessation strategies that include evidence 
based counseling and FDA-approved pharmacotherapies are effective. More 
than 4 in 5 smokers say they want to quit, and each year about 1.3 
million smokers do quit. Overcoming an addiction to tobacco is arguably 
one of the single most important lifestyle changes that a person can 
make to improve and extend his or her health and life.
  Studies have shown that reducing adult smoking through tobacco 
cessation 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. Breaking an addition to nicotine is a very difficult 
process, and that is why we should make a variety of treatment options 
available to tobacco users.

[[Page S4180]]

  I am proud to be joined by my colleagues Senator Kennedy in 
introducing the Medicare, Medicaid and MCH Smoking Cessation Promotion 
Act of 2009. This legislation would make it easier for people to access 
tobacco cessation treatment therapies in three meaningful ways.
  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 seven 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.
  Finally, 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 examines 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.
  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. 770

       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 2009''.

     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)), as amended by section 152(b) of 
     the Medicare Improvements for Patients and Providers Act of 
     2008 (Public Law 110-275), is amended--
       (1) in subparagraph (DD), by striking ``and'' at the end;
       (2) in subparagraph (EE), by inserting ``and'' at the end; 
     and
       (3) by adding at the end the following new subparagraph:
       ``(FF) counseling for cessation of tobacco use (as defined 
     in subsection (hhh));''.
       (b) Services Described.--Section 1861 of the Social 
     Security Act (42 U.S.C. 1395x), as so amended, is amended by 
     adding at the end the following new subsection:
       ``(hhh) 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 ``(W)''; and
       (B) by inserting before the semicolon at the end the 
     following: ``, and (X) with respect to counseling for 
     cessation of tobacco use (as defined in section 1861(hhh)), 
     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(hhh))''.
       (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(hhh)) furnished by an 
     outpatient department of a hospital, the amount determined 
     under paragraph (1)(X),''.
       (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 ``(9)''; and
       (B) by inserting before the period the following: ``, and 
     (10) such deductible shall not apply with respect to 
     counseling for cessation of tobacco use (as defined in 
     section 1861(hhh))''.
       (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(hhh)(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:
       ``(O) Counseling for cessation of tobacco use (as defined 
     in subsection (hhh)).''.
       (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)), as 
     amended by section 175 of the Medicare Improvements for 
     Patients and Providers Act of 2008 (Public Law 110-275), 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:

[[Page S4181]]

       ``(29) at the option of the State, counseling for cessation 
     of tobacco use (as defined in section 1861(hhh)),''.
       (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 (K) as 
     subparagraphs (E) through (J), 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:
       ``(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(hhh)).
       ``(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.
                                 ______