[Congressional Record Volume 157, Number 110 (Thursday, July 21, 2011)]
[Senate]
[Pages S4803-S4807]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BARRASSO (for himself, Mr. Alexander, Mr. Kyl, Mr. Wicker, 
        Mr. Roberts, Mr. Inhofe, Mrs. Hutchison, Mr. Cornyn, and Mr. 
        Grassley):
  S. 1395. A bill to ensure that all Americans have access to waivers 
from the Patient Protection and Affordable Care Act; to the Committee 
on Finance.
  Mr. BARRASSO. Mr. President, I come to the floor, as I have just 
about every week since the health care law has been passed, with a 
doctor's second opinion about the health care law. I have great 
concerns about the law that was forced through this Senate.
  I come to the floor because it seems that the more Americans find out 
and learn about this health care law, the less they like it. A majority 
of Americans now in national polls say they want out. They absolutely 
want out.
  Since October of 2010, the administration has granted waivers--
waivers--to unions, businesses, insurers, and actually to whole States 
because they cannot afford the health care law's burdensome mandates.
  The Secretary of Health and Human Services continues to release more 
waivers and did so again last Friday. They have now granted a total of 
1,471 annual benefit limit waivers, and this has covered 3.2 million 
Americans.
  That is why I come to the floor to introduce a bill that will allow 
every American--every American--to apply for a waiver from the 
President's health care law.
  Under my bill, any American can submit a waiver application seeking 
relief from any or all of the health care law's mandates. All those 
Americans will have to do is simply show what unions and corporations 
have shown in order to get their waivers--nothing more, nothing less.
  Waivers will be granted to individuals who show that the health care 
law is either increasing their insurance premiums or decreasing their 
access to benefits. That is all they have to show.
  So far, this administration has ignored most Americans demand for a 
way out of the health care law, and Americans are looking for a way out 
of it. Instead, this administration has granted half the waivers--half 
the waivers--to people who get their health coverage through unions. 
Although those people represent a very small percentage of the workers 
in America, they got half of all the waivers. It is neither fair nor is 
it reasonable.

[[Page S4804]]

  These are the same unions--the same unions--that lobbied for and 
supported the health care law. But now that they have actually read it 
and found out what is in it, even though it has been passed--too late 
now; we thought too late--but they have been getting waivers so they do 
not have to live under the mandates of the health care law.
  We are talking about unions such as the Service Employees 
International Union. This is what they said about the health care law. 
These are people who lobbied for the health care law. Now they have 
found out what is in it, and they say to live under it would be 
financially impossible. A union that lobbied for the health care law 
now says it would be financially impossible to live under it.
  It does not just apply to that union; it applies to Americans all 
across this great land. So I do not think any Americans should have to 
bear financially impossible costs because of the law.
  The financially impossible mandates and elements of this bill have 
absolutely become more obvious to more Americans as they have taken the 
time to look at the rules and the regulations. That is why, frankly, 
this steady drip of waivers coming out of Health and Human Services--
giving waivers to many of their friends--has become such an 
embarrassment for this administration and why they actually recently 
abruptly changed the rules.
  In June, the Centers for Medicare and Medicaid Services announced 
that all employees and organizations that cannot afford the law's 
crushing mandates--and there are many--must jump through a new set of 
hoops. It used to be that they would get a 1-year waiver. Now all 
employers and organizations, even those that have already gotten a 
waiver, must apply for long-term waivers by September of this year. The 
long-term waivers will last all the way until 2014.
  Instead of ending the waiver process, the administration should 
extend the waiver process to include all Americans. That is what my 
bill does. If not, families, companies, and organizations of all sizes 
will soon be hit with these crushing mandates.
  Under the administration's current plan, employers will be forced to 
provide $750,000 worth of coverage to every employee this year. By next 
September, that number balloons to $2 million. Beyond that, there is no 
limit--it continues to go higher and higher. So if you are an employer 
and you cannot afford $2 million in coverage next year, well, you 
better apply for your waiver now, that long-term waiver, before 
September of this year; otherwise, you are going to be stuck with costs 
that only get higher and higher. This, to me, is what the 
administration wants to do because they do not want to put out waivers 
in 2012, an election year, which is going to cause additional attention 
to how unpopular this health care law continues to be.
  Let's talk about some Americans who get together--people in any 
community, in my State, in your State, Mr. President--and want to start 
a new business. They are thinking about starting a new business after 
September, thinking about, Do we do it this summer? Do we wait until 
the fall? If these people want to start a new business and hire people 
and they want to start that business after September, they are going to 
be faced with two difficult choices: They can offer high-cost, 
government-approved health insurance--that is what the health care law 
says--making it very expensive for them to try to open a new business, 
to try to hire workers, to put America back to work--we are at a time 
when there is 9.2 percent unemployment in this country--or these people 
trying to start a new business can refuse to offer coverage at all 
because they can't afford the health care law's sky-high mandates.
  So the incentives in the health care law will encourage businesses to 
do what? Well, to drop insurance coverage if they are providing it 
right now. Under the law, businesses are permitted to drop out of 
paying for employer-provided coverage as long as they pay a fine. The 
fine is going to be $2,000 per employee. The fine is far smaller than 
the exploding costs imposed by the health care law. So I think this 
explains why McKinsey & Company recently reported that up to 50 percent 
of employers are expected to stop offering employer-provided health 
care coverage.
  The employees who are dumped--what happens to them? Well, they will 
be forced to get their insurance through a government exchange, an 
exchange run by Washington, which is heavily subsidized by the American 
taxpayers. They are going to be dumped into the exchange. The annual 
cost of subsidizing these ballooning numbers of insurance policies, by 
my calculation, is about $900 billion. Well, that is nine times higher 
than what the White House has claimed. In short, the taxpayers of this 
country will be stuck with a bill of nearly $1 trillion every year.
  Well, I am going to continue to come to the floor week after week, 
continue to fight to repeal and replace this health care law with 
patient-centered care--patient-centered care--that lowers costs for all 
Americans and improves their care. So I will continue with the second 
opinions because until we are able to repeal and replace the health 
care law, I am going to move forward with what is now the Waive Act. 
This bill offers all Americans the freedom to choose--the freedom that 
has been taken away from them by the President's health care law. It 
gives them the right to seek and be granted a waiver out of the 
President's health care law. It is time to transfer power from 
Washington back to the American people. This will ensure they can get 
the care they need from the doctor they want at a price they can 
afford.
                                 ______
                                 
      By Mr. FRANKEN (for himself, Mr. Durbin, Mrs. Gillibrand, and Ms. 
        Klobuchar):
  S. 1399. A bill to protect children affected by immigration 
enforcement actions, and for other purposes; to the Committee on the 
Judiciary.
  Mr. FRANKEN. 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. 1399

       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 ``Humane Enforcement and Legal 
     Protections for Separated Children Act'' or the ``HELP 
     Separated Children Act''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Apprehension.--The term ``apprehension'' means the 
     detention, arrest, or custody by officials of the Department 
     or cooperating entities.
       (2) Child.--Except as otherwise specifically provided, the 
     term ``child'' has the meaning given to the term in section 
     101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 
     1101(b)(1)).
       (3) Child welfare agency.--The term ``child welfare 
     agency'' means the State or local agency responsible for 
     child welfare services under subtitles B and E of title IV of 
     the Social Security Act (42 U.S.C. 601 et seq.).
       (4) Cooperating entity.--The term ``cooperating entity'' 
     means a State or local entity acting under agreement with the 
     Secretary.
       (5) Department.--The term ``Department'' means the 
     Department of Homeland Security.
       (6) Detention facility.--The term ``detention facility'' 
     means a Federal, State, or local government facility, or a 
     privately owned and operated facility, that is used to hold 
     individuals suspected or found to be in violation of the 
     Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
       (7) Immigration enforcement action.--The term ``immigration 
     enforcement action'' means the apprehension of, detention of, 
     or request for or issuance of a detainer for, 1 or more 
     individuals for suspected or confirmed violations of the 
     Immigration and Nationality Act (8 U.S.C. 1101 et seq.) by 
     the Secretary or a cooperating entity.
       (8) Local educational agency.--The term ``local educational 
     agency'' has the meaning given to the term in section 9101 of 
     the Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     7801).
       (9) NGO.--The term ``NGO'' means a nongovernmental 
     organization that provides social services or humanitarian 
     assistance to the immigrant community.
       (10) Secretary.--Except as otherwise specifically provided, 
     the term ``Secretary'' means the Secretary of the Department.

     SEC. 3. APPREHENSION PROCEDURES FOR IMMIGRATION ENFORCEMENT-
                   RELATED ACTIVITIES.

       (a) Notification.--
       (1) Advance notification.--Subject to paragraph (2), when 
     conducting any immigration enforcement action, the Secretary 
     and cooperating entities shall notify the Governor of the 
     State, the local child welfare agency, and relevant State and 
     local law enforcement before commencing the action, or, if 
     advance notification is not possible, immediately after 
     commencing such action, of--

[[Page S4805]]

       (A) the approximate number of individuals to be targeted in 
     the immigration enforcement action; and
       (B) the primary language or languages believed to be spoken 
     by individuals at the targeted site.
       (2) Hours of notification.--To the extent possible, the 
     advance notification required by paragraph (1) should occur 
     during business hours and allow the notified entities 
     sufficient time to identify resources to conduct the 
     interviews described in subsection (b)(1).
       (3) Other notification.--When conducting any immigration 
     action, the Secretary and cooperating entities shall notify 
     the relevant local educational agency and local NGOs of the 
     information described in paragraph (1) immediately after 
     commencing the action.
       (b) Apprehension Procedures.--In any immigration 
     enforcement action, the Secretary and cooperating entities 
     shall--
       (1) as soon as possible and not later than 6 hours after an 
     immigration enforcement action, provide licensed social 
     workers or case managers employed or contracted by the child 
     welfare agency or local NGOs with confidential access to 
     screen and interview individuals apprehended in such 
     immigration enforcement action to assist the Secretary or 
     cooperating entity in determining if such individuals are 
     parents, legal guardians, or primary caregivers of a child in 
     the United States;
       (2) as soon as possible and not later than 8 hours after an 
     immigration enforcement action, provide any apprehended 
     individual believed to be a parent, legal guardian, or 
     primary caregiver of a child in the United States with--
       (A) free, confidential telephone calls, including calls to 
     child welfare agencies, attorneys, and legal services 
     providers, to arrange for the care of children or wards, 
     unless the Secretary has reasonable grounds to believe that 
     providing confidential phone calls to the individual would 
     endanger public safety or national security; and
       (B) contact information for--
       (i) child welfare agencies in all 50 States, the District 
     of Columbia, all United States territories, counties, and 
     local jurisdictions; and
       (ii) attorneys and legal service providers capable of 
     providing free legal advice or free legal representation 
     regarding child welfare, child custody determinations, and 
     immigration matters;
       (3) ensure that personnel of the Department and cooperating 
     entities do not--
       (A) interview individuals in the immediate presence of 
     children; or
       (B) compel or request children to translate for interviews 
     of other individuals who are encountered as part of an 
     immigration enforcement action; and
       (4) ensure that any parent, legal guardian, or primary 
     caregiver of a child in the United States--
       (A) receives due consideration of the best interests of his 
     or her children or wards in any decision or action relating 
     to his or her detention, release, or transfer between 
     detention facilities; and
       (B) is not transferred from his or her initial detention 
     facility or to the custody of the Secretary until the 
     individual--
       (i) has made arrangements for the care of his or her 
     children or wards; or
       (ii) if such arrangements are impossible, is informed of 
     the care arrangements made for the children and of a means to 
     maintain communication with the children.
       (c) Nondisclosure and Retention of Information About 
     Apprehended Individuals and Their Children.--
       (1) In general.--Information collected by child welfare 
     agencies and NGOs in the course of the screenings and 
     interviews described in subsection (b)(1) may not be 
     disclosed to Federal, State, or local government entities or 
     to any person, except pursuant to written authorization from 
     the individual or his or her legal counsel.
       (2) Child welfare agency or ngo recommendation.--
     Notwithstanding paragraph (1), a child welfare agency or NGO 
     may--
       (A) submit a recommendation to the Secretary or a 
     cooperating entity regarding whether an apprehended 
     individual is a parent, legal guardian, or primary caregiver 
     who is eligible for the protections provided under this Act; 
     and
       (B) disclose information that is necessary to protect the 
     safety of the child, to allow for the application of 
     subsection (b)(4)(A), or to prevent reasonably certain death 
     or substantial bodily harm.

     SEC. 4. ACCESS TO CHILDREN, LOCAL AND STATE COURTS, CHILD 
                   WELFARE AGENCIES, AND CONSULAR OFFICIALS.

       (a) In General.--The Secretary shall ensure that all 
     detention facilities operated by or under agreement with the 
     Department implement procedures to ensure that the best 
     interest of the child, including a preference for family 
     unity wherever appropriate, is considered in any decision and 
     action relating to the custody of children whose parent, 
     legal guardian, or primary caregiver is detained as the 
     result of an immigration enforcement action.
       (b) Access to Children, State and Local Courts, Child 
     Welfare Agencies, and Consular Officials.--At all detention 
     facilities operated by, or under agreement with, the 
     Department, the Secretary shall--
       (1) prominently post in a manner accessible to detainees 
     and visitors and include in detainee handbooks information on 
     the protections of this Act as well as information on 
     potential eligibility for parole or release;
       (2) ensure that individuals who are detained by reason of 
     their immigration status may receive the screenings and 
     interviews described in section 3(b)(1) not later than 6 
     hours after their arrival at the detention facility;
       (3) ensure that individuals who are detained by reason of 
     their immigration status and are believed to be parents, 
     legal guardians, or primary caregivers of children in the 
     United States are--
       (A) permitted daily phone calls and regular contact visits 
     with their children or wards;
       (B) able to participate fully, and to the extent possible 
     in-person, in all family court proceedings and any other 
     proceeding impacting upon custody of their children or wards;
       (C) able to fully comply with all family court or child 
     welfare agency orders impacting upon custody of their 
     children or wards;
       (D) provided with contact information for family courts in 
     all 50 States, the District of Columbia, all United States 
     territories, counties, and local jurisdictions;
       (E) granted free and confidential telephone calls to child 
     welfare agencies and family courts as often as is necessary 
     to ensure that the best interest of the child, including a 
     preference for family unity whenever appropriate, can be 
     considered;
       (F) granted free and confidential telephone calls and 
     confidential in-person visits with attorneys, legal 
     representatives, and consular officials;
       (G) provided United States passport applications for the 
     purpose of obtaining travel documents for their children or 
     wards;
       (H) granted adequate time before removal to obtain 
     passports and other necessary travel documents on behalf of 
     their children or wards if such children or wards will 
     accompany them on their return to their country of origin or 
     join them in their country of origin; and
       (I) provided with the access necessary to obtain birth 
     records or other documents required to obtain passports for 
     their children or wards; and
       (4) facilitate the ability of detained parents, legal 
     guardians, and primary caregivers to share information 
     regarding travel arrangements with their children or wards, 
     child welfare agencies, or other caregivers well in advance 
     of the detained individual's departure from the United 
     States.

     SEC. 5. MEMORANDA OF UNDERSTANDING.

       The Secretary shall develop and implement memoranda of 
     understanding or protocols with child welfare agencies and 
     NGOs regarding the best ways to cooperate and facilitate 
     ongoing communication between all relevant entities in cases 
     involving a child whose parent, legal guardian, or primary 
     caregiver has been apprehended or detained in an immigration 
     enforcement action to protect the best interests of the 
     child, including a preference for family unity whenever 
     appropriate.

     SEC. 6. MANDATORY TRAINING.

       The Secretary, in consultation with the Secretary of Health 
     and Human Services and independent child welfare experts, 
     shall require and provide in-person training on the 
     protections required under sections 3 and 4 to all personnel 
     of the Department and of States and local entities acting 
     under agreement with the Department who regularly come into 
     contact with children or parents in the course of conducting 
     immigration enforcement actions.

     SEC. 7. RULEMAKING.

       Not later than 120 days after the date of the enactment of 
     this Act, the Secretary shall promulgate regulations to 
     implement this Act.

     SEC. 8. SEVERABILITY.

       If any provision of this Act or amendment made by this Act, 
     or the application of a provision or amendment to any person 
     or circumstance, is held to be unconstitutional, the 
     remainder of this Act and amendments made by this Act, and 
     the application of the provisions and amendment to any person 
     or circumstance, shall not be affected by the holding.

     SEC. 9. REPORT ON PROTECTIONS FOR CHILDREN IMPACTED BY 
                   IMMIGRATION ENFORCEMENT ACTIVITIES.

       (a) Requirement for Report.--Not later than 1 year after 
     the date of the enactment of this Act, and annually 
     thereafter, the Secretary shall submit to Congress a report 
     that describes the impact of immigration enforcement 
     activities on children, including children who are citizens 
     of the United States.
       (b) Content.--The report submitted under subsection (a) 
     shall include for the previous 1-year period an assessment 
     of--
       (1) the number of individuals removed from the United 
     States who are the parent of a child who is a citizen of the 
     United States;
       (2) the number of occasions in which both parents or the 
     primary caretaker of such a child was removed from the United 
     States;
       (3) the number of children who are citizens of the United 
     States who leave the United States with parents who are 
     removed;
       (4) the number of such children who remained in the United 
     States after the removal of a parent;
       (5) the age of each such child at the time a parent is 
     removed; and
       (6) the number of instances in which such a child whose 
     parent is apprehended, detained, or removed is referred to 
     the local child welfare agency by officers or employees of 
     the Department.
                                 ______
                                 
      By Mr. HARKIN (for himself, Mr. Durbin, Mr. Blumenthal, Mr.

[[Page S4806]]

        Lautenberg, Mrs. Murray, Mr. Whitehouse, Mr. Leahy, Mr. Bennet, 
        Mr. Franken, Ms. Mikulski, Mr. Reed, Mrs. Shaheen, Mr. Johnson 
        of South Dakota, and Mr. Begich):
  S. 1403. A bill to amend part B of the Individuals with Disabilities 
Education Act to provide full Federal funding of such part; to the 
Committee on Finance.
  Mr. HARKIN. Mr. President, throughout my career in public service I 
have focused on ensuring that each and every child with a disability 
has a right to a good education. To this end, I have fought tirelessly 
to safeguard the rights of children with disabilities under the 
Individuals with Disabilities Education Act, IDEA, the landmark 
legislation that has been improving the educational outcomes of 
millions of students across the nation since 1975 through the 
principles of inclusion and equality. When Congress passed IDEA with 
strong bipartisan support, we understood that our commitment to provide 
high-quality educational opportunities and serve the needs of students 
with disabilities in our classrooms entailed excess costs compared to 
other students, which would have a significant financial impact on 
States and school districts. As a result, Congress committed to cover 
up to 40 percent of the excess cost of educating students with 
disabilities; however, we have failed to deliver on that promise and 
the law has been greatly underfunded. This is why I am pleased to 
introduce the IDEA Full Funding Act, with my colleagues Richard Durbin, 
Frank Lautenberg, Richard Blumenthal, Patty Murray, Sheldon Whitehouse, 
Patrick Leahy, Michael Bennet, Al Franken, Barbara Mikulski, Jack Reed, 
Jeanne Shaheen, Tim Johnson, and Mark Begich, which will meet the full 
Federal commitment at no additional cost to taxpayers. Given the 
current financial difficulties that many State and local governments 
are facing, this legislation is more essential than ever for ensuring 
that students with disabilities get the high-quality education and 
services they need to fulfill their potential.
  Since the enactment of IDEA, students with disabilities across the 
United States have made tremendous progress. Today, over 6.6 million 
students receive special education services designed to meet their 
individual needs. Mr. President, 95 percent of students with 
disabilities attend a neighborhood school, and almost \2/3\ of those 
spend at least 80 percent of their day in the regular school 
environment. Nearly 350,000 infants and toddlers receive early 
intervention services. Almost 6 out of 10 students with disabilities 
graduate high school with a regular diploma--twice the percentage of 25 
years ago. Moreover, approximately half of students with disabilities 
enroll in postsecondary education. We must do our best to continue this 
progress and make good on a 36-year-old promise because we still have a 
long way to go: students with disabilities who graduate from high 
school have an employment rate that is less than half the employment 
rate of the general population.
  Today, the Federal Government provides about 16 percent of special 
education costs or less than half of the committed level of 40 percent. 
In the current fiscal year, this means that Federal funds are almost 
$24 billion short, which forces States and school districts to make up 
the Federal shortfall at a time when they are cash strapped. The IDEA 
Full Funding Act will fully fund the Federal commitment to IDEA by 
gradually increasing the Federal Government's share of the excess costs 
of educating students with disabilities to its committed level over 10 
years. Specifically, this legislation will increase the Federal dollars 
appropriated from $11.5 billion in fiscal year 2011 to $35.3 billion in 
fiscal year 2021.
  By making good on our 36-year-old promise, which has a history of 
bipartisan support, we will supply schools with the necessary funding 
to enhance the quality and range of services available to students with 
disabilities. The funding increase will help to raise salaries for 
teachers and related services personnel, thereby allowing districts to 
enhance recruitment and retention possibilities, and will support 
school districts in increasing graduation rates and postsecondary 
enrollment rates of students with disabilities.
  In these difficult times, it is essential for Congress to provide 
these revenues without increasing the deficit. The IDEA Full Funding 
Act is fully paid for by doubling the tax on cigarettes and small 
cigars and setting equivalent increases to other tobacco products. In 
addition to the benefit of offsetting the cost of fully funding IDEA, 
these tax provisions will help an estimated 1 million Americans reduce 
their tobacco use or quit altogether and prevent an estimated 2.2 
million children from taking up smoking in the first place. The stakes 
are incredibly high: smoking kills more people than alcohol, AIDS, car 
accidents, illegal drugs, murders, and suicides combined, with 
thousands more dying from spit tobacco use. Every day at least 1,000 
children become new regular, daily smokers in the U.S. and of those, 
almost a third will ultimately die from it. Furthermore, every year 
Americans incur the cost of $96 billion in public and private health 
care expenditures caused by smoking, including an estimated $54.6 
billion in Federal Medicare and Medicaid Federal expenditures. Overall, 
this legislation, which I hope will enjoy bipartisan support, will 
impact children's lives in important ways, both by improving the 
educational outcomes of students with disabilities and by improving 
their health through smoking prevention.
                                 ______
                                 
      By Mr. CARDIN (for himself and Mr. Enzi):
  S. 1404. A bill to amend the Internal Revenue Code of 1986 to 
increase participation in medical flexible spending arrangements; to 
the Committee on Finance.

  Mr. CARDIN. Mr. President, I rise today to introduce the Medical FSA 
Improvement Act of 2011. I am joined in this effort by Senator Enzi and 
I thank him for his support. Our bill would allow employees who have 
medical FSAs to cash out unused amounts, effectively repealing the 
current ``use-it-or-lose-it'' policy.
  Our legislation would modernize and encourage participation in FSAs, 
which are a helpful tool for health care consumers who face significant 
cost sharing burdens. It would remove the penalty on employees who act 
prudently throughout the year and save their FSA dollars.
  Flexible spending arrangements are an important benefit for many of 
my constituents in Maryland, Federal, State, and private sector 
employees, that allows them to set aside a portion of their income tax-
free to pay for out-of-pocket medical expenses, such as co-payments for 
doctor visits and prescription drugs, medical supplies, and equipment.
  Nationwide, about 35 million Americans have FSAs, and the median 
salary of FSA participants is $55,000. It is estimated that one-third 
of Federal employees contribute to an FSA. Currently in Maryland, there 
are over 50,000 Federal employees who benefit from FSAs. These plans 
are efficient, the administrative costs are between two and three 
percent of claims, far lower than other health insurance administrative 
costs, and over 90 percent of claims can be substantiated 
electronically, meaning that paperwork for participants is minimized.

  More than 85 percent of America's large employers offer FSAs, but 
only about 20 percent of eligible employees enroll. According to 
several surveys of eligible participants, the primary reason for 
declining to enroll or for underfunding accounts is concern about the 
``use-it-or-lose-it'' rule, which requires participants to spend their 
entire contribution before the end of the plan year or risk forfeiting 
the unused funds back to their employer. This ``use-it-or-lose-it'' 
rule was initially enacted to prevent participants from putting 
excessive amounts in their FSA, and it served to regulate what used to 
be an uncapped benefit. With the enactment of the Affordable Care Act 
in 2010, annual contributions to FSAs will be capped at $2,500 
beginning in 2013, which makes the ``use-it-or-lose-it'' rule 
unnecessary.
  It is unreasonable to expect FSA participants, especially those with 
chronic conditions, to be able to accurately forecast their out-of-
pocket medical expenses a year in advance, and it is unfair to penalize 
them at the end of the plan year if their estimates are incorrect by 
making them forfeit any unspent amounts. Ending the ``use-it-

[[Page S4807]]

or-lose-it'' rule and allowing for this cash-out option is a wise and 
sensible improvement to FSAs that will encourage more efficient 
participation in medical flexible spending accounts.
  It is time to modernize FSAs to eliminate this burdensome ``use-it-
or-lose-it'' rule. It is both fair and sound health policy to allow FSA 
participants to cash-out remaining funds at the end of the plan year 
rather than forfeiting the balance to their employer. The amounts 
cashed out would be taxable for the year of the cash-out. Moreover, 
just as it is at the discretion of employers to establish FSAs for 
their employees, it would be the employer's option to offer the cash-
out feature. But I believe many employers will offer this option, as 
they too will save money through increased employer payroll tax 
savings.
  Data provided by WageWorks shows that the average unused balance in 
the end of the year in an FSA is about $100, and each year a total of 
nearly $400 million remains in FSA accounts. The static analysis, 
before considering the effects of greater participation in FSAs, would 
indicate that allowing a cash-out of these funds and taxing these 
unused amounts would increase federal revenues by about $70 million a 
year, holding everything else constant.
  Our legislation is supported by the Employers' Council on Flexible 
Compensation, representing more than 100 member companies, including 
employers, accounting and consulting firms, third party administrators, 
and actuarial companies. I am also pleased to announce the support of 
the National Treasury Employees Union, which represents more than 
150,000 Federal employees in 31 agencies.
  I commend Representatives Charles Boustany and John Larson for having 
introduced a bipartisan companion bill in the House of Representatives, 
and urge my colleagues to support this common-sense measure.
                                 ______
                                 
      By Mrs. FEINSTEIN:
  S. 1405. A bill for the relief of Guy Privat Tape and Lou Nazie 
Raymonde Toto; to the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, today I am introducing a private 
relief bill on behalf of Guy Privat Tape and Lou Nazie Raymonde Toto. 
Mr. Tape and Ms. Toto are citizens of the Ivory Coast, but have been 
living in the San Francisco area of California for approximately 17 
years.
  The story of Mr. Tape and Ms. Toto is compelling and I believe they 
merit Congress' special consideration for such an extraordinary form of 
relief as a private bill.
  Mr. Tape and Ms. Toto were subjected to numerous atrocities in the 
early 1990's in the Ivory Coast. After participating in a demonstration 
against the ruling party, they were jailed and tortured by their own 
government. Ms. Toto was brutally raped by her captors and several 
years later learned that she had contracted HIV.
  Despite the hardships that they suffered, Mr. Tape and Ms. Toto were 
able to make a better life for themselves in the United States. Mr. 
Tape arrived in the U.S in 1993 on a B1/B2 non-immigrant visa. Ms. Toto 
entered without inspection in 1995 from Spain. Despite being diagnosed 
with HIV, Ms. Toto gave birth to two healthy children, Melody, age 13, 
and Emmanuel, age 8.
  Since arriving in the United States, this family has dedicated 
themselves to community involvement and a strong work ethic. They are 
active members of Easter Hill United Methodist Church.
  Mr. Tape is employed as a security guard and unfortunately, in 2002, 
he was diagnosed with prostate cancer. While his doctor states that the 
cancer is currently in remission, he will continue to require life-long 
surveillance to monitor for recurrence of the disease.
  In addition to raising her two children, Ms. Toto obtained a 
certificate to be a nurse's aide and currently works as a Resident Care 
Specialist at a nursing home in San Pablo, California. Ms. Toto 
continues to receive medical treatment for HIV. According to her 
doctor, without access to adequate health care and laboratory 
monitoring, she is at risk of developing life-threatening illnesses.
  Mr. Tape and Ms. Toto applied for asylum when they arrived in the 
U.S., but after many years of litigation, the claim was ultimately 
denied by the 9th Circuit Court of Appeals.
  Although the regime which subjected Mr. Tape and Ms. Toto to 
imprisonment and torture is no longer in power, Mr. Tape has been 
afraid to return to the Ivory Coast due to his prior association with 
former President Laurent Gbagbo. As a result, Mr. Tape strongly 
believes that his family will be targeted if they return to the Ivory 
Coast.
  One of the most compelling reasons for permitting the family to 
remain in the United States is the impact their deportation would have 
on their two U.S. citizen children. For Melody and Emmanuel, the United 
States is the only country they have ever known. Mr. Tape believes that 
if the family returns to the Ivory Coast, these two young children will 
be forced to enter the army.
  This bill is the only hope for this family to remain in the United 
States. To send them back to the Ivory Coast, where they may face 
persecution and inadequate medical treatment for their illnesses would 
be devastating to the family. I have received approximately 30 letters 
from the church community in support of this family.
  I ask my colleagues to support this private bill.
  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. 1405

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

     SECTION 1. PERMANENT RESIDENT STATUS FOR GUY PRIVAT TAPE AND 
                   LOU NAZIE RAYMONDE TOTO.

       (a) In General.--Notwithstanding subsections (a) and (b) of 
     section 201 of the Immigration and Nationality Act (8 U.S.C. 
     1151), Guy Privat Tape and Lou Nazie Raymonde Toto shall each 
     be eligible for the issuance of an immigrant visa or for 
     adjustment of status to that of an alien lawfully admitted 
     for permanent residence upon filing an application for 
     issuance of an immigrant visa under section 204 of such Act 
     (8 U.S.C. 1154) or for adjustment of status to lawful 
     permanent resident.
       (b) Adjustment of Status.--If Guy Privat Tape or Lou Nazie 
     Raymonde Toto enters the United States before the filing 
     deadline specified in subsection (c), Guy Privat Tape or Lou 
     Nazie Raymonde Toto, as appropriate, shall be considered to 
     have entered and remained lawfully in the United States and 
     shall be eligible for adjustment of status under section 245 
     of the Immigration and Nationality Act (8 U.S.C. 1255) as of 
     the date of the enactment of this Act.
       (c) Application and Payment of Fees.--Subsections (a) and 
     (b) shall apply only if the application for the issuance of 
     an immigrant visa or the application for adjustment of status 
     is filed with appropriate fees not later than 2 years after 
     the date of the enactment of this Act.
       (d) Reduction of Immigrant Visa Numbers.--Upon granting an 
     immigrant visa or permanent residence to Guy Privat Tape and 
     Lou Nazie Raymonde Toto, the Secretary of State shall 
     instruct the proper officer to reduce by 2, during the 
     current or subsequent fiscal year, the total number of 
     immigrant visas that are made available to natives of the 
     country of birth of Guy Privat Tape and Lou Nazie Raymonde 
     Toto under section 203(a) of the Immigration and Nationality 
     Act (8 U.S.C. 1153(a)) or, if applicable, the total number of 
     immigrant visas that are made available to natives of the 
     country of birth of Guy Privat Tape and Lou Nazie Raymonde 
     Toto under section 202(e) of such Act (8 U.S.C. 1152(e)).
       (e) PAYGO.--The budgetary effects of this Act, for the 
     purpose of complying with the Statutory Pay-As-You-Go-Act of 
     2010, shall be determined by reference to the latest 
     statement titled ``Budgetary Effects of PAYGO Legislation'' 
     for this Act, submitted for printing in the Congressional 
     Record by the Chairman of the Senate Budget Committee, 
     provided that such statement has been submitted prior to the 
     vote on passage.

                          ____________________