[Congressional Record Volume 157, Number 116 (Friday, July 29, 2011)]
[Senate]
[Pages S5073-S5077]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself, Mr. Johnson of South Dakota, and Mr. 
        Reed):
  S. 1452. A bill to promote simplification and fairness in the 
administration and collection of sales and use taxes; to the Committee 
on Finance.
  Mr. DURBIN. Mr. President, ``Level the Playing Field.''
  When I ask small business owners what they would like the Federal 
Government to do to help them thrive, the answer I most frequently hear 
is, ``level the playing field.''
  It may be a cliche, but there's truth to it. Most small 
businesspeople don't want a government handout. They don't want special 
treatment. They just want to be able to compete fairly against other 
businesses.
  That is why I am introducing the Main Street Fairness Act.
  If you are a small business owner in Peoria or Springfield or Alton, 
you compete against neighboring businesses down the street and, 
increasingly, with sellers on the internet. The businesses down the 
street have to collect the same State sales taxes that you do. But, 
many internet sellers don't.
  That means internet sellers have a built-in price advantage. That 
isn't fair, and it's not a level playing field.
  The Main Street Fairness Act would address that. The bill would give 
Congressional endorsement to the Streamline Sales and Use Tax 
Agreement, which 45 States and the District of Columbia created years 
ago to help make it feasible for businesses selling online to collect 
State and local sales taxes already owed.
  Why is this Agreement necessary? The Supreme Court ruled in the early 
'90s that the maze of current sales tax rules and rates was too complex 
to expect online retailers to comply. The States worked together to 
address that problem.
  The Main Street Fairness Act says that any State that wants to do so 
can require online retailers to collect the same sales taxes that Main 
Street businesses collect, provided that small online retailers are 
exempt, online retailers are compensated for any startup administrative 
costs associated with collecting sales taxes, and all retailers are 
treated equally regarding sales tax collection.
  Let me be as clear as I can on one point: this bill is NOT a tax 
increase.
  It doesn't amend the Internal Revenue Code in any way. It simply 
provides states the option to require all retailers to collect the 
sales taxes that are already owed.
  The Main Street Fairness Act provides two other big benefits.
  First, consumers will no longer be asked to itemize the sales taxes 
they owe from their online purchases on their year-end tax forms. Few 
consumers comply with the law today--most don't know they should--but 
the Main Street Fairness Act would eliminate the need to do so.
  Second, State and local governments would collect taxes that are 
already owed.
  It is no secret that many States and cities, including the State of 
Illinois and local governments across my State, are struggling to 
balance their budgets.
  The State of Illinois estimates that we lose as much as $153 million 
each year in unpaid taxes on internet sales alone.
  Passing the Main Street Fairness Act would help State and local 
governments balance their budgets without cutting spending or raising 
new taxes.
  The Main Street Fairness Act is supported by the National Governors' 
Association, National Conference on State Legislatures, Governing Board 
of the Streamlined Sales and Use Tax Agreement, National Retail 
Federation, International Council of Shopping Centers, Retail Industry 
Leaders Association, and the National Association of Real Estate 
Investment Trusts.
  The Main Street Fairness Act will level the playing field for our 
small businesses. I urge its passage.
  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. 1452

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Main 
     Street Fairness Act''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Consent of Congress.
Sec. 3. Findings.
Sec. 4. Authorization to require collection of sales and use taxes.
Sec. 5. Determinations by governing board and judicial review of such 
              determinations.
Sec. 6. Minimum simplification requirements.
Sec. 7. Limitation.
Sec. 8. Expedited judicial review.
Sec. 9. Definitions.
Sec. 10. Severability.
Sec. 11. Sense of Congress on digital goods and services.

     SEC. 2. CONSENT OF CONGRESS.

       Congress consents to the Streamlined Sales and Use Tax 
     Agreement.

     SEC. 3. FINDINGS.

       Congress makes the following findings:
       (1) States should be encouraged to simplify their sales and 
     use tax systems.
       (2) As a matter of economic policy and basic fairness, 
     similar sales transactions should be treated equally, without 
     regard to the manner in which sales are transacted, whether 
     in person, through the mail, over the telephone, on the 
     Internet, or by other means.
       (3) Congress may facilitate such equal taxation consistent 
     with the United States Supreme Court's decision in Quill 
     Corp. v. North Dakota.
       (4) States that voluntarily and adequately simplify their 
     tax systems should be authorized to correct the present 
     inequities in taxation through requiring sellers to collect 
     taxes on sales of goods or services delivered in-state, 
     without regard to the location of the seller.
       (5) The States have experience, expertise, and a vital 
     interest in the collection of sales and use taxes, and thus 
     should take the lead in developing and implementing sales and 
     use tax collection systems that are fair, efficient, and non-
     discriminatory in their application and that will simplify 
     the process for both sellers and buyers.

[[Page S5074]]

       (6) Online consumer privacy is of paramount importance to 
     the growth of electronic commerce and must be protected.

     SEC. 4. AUTHORIZATION TO REQUIRE COLLECTION OF SALES AND USE 
                   TAXES.

       (a) Grant of Authority.--
       (1) In general.--Each Member State under the Streamlined 
     Sales and Use Tax Agreement is authorized, subject to the 
     requirements of this section, to require all sellers not 
     qualifying for the small seller exception to collect and 
     remit sales and use taxes with respect to remote sales 
     sourced to that Member State under the Agreement.
       (2) Requirements for authority.--The authorization provided 
     under paragraph (1) shall be granted once all of the 
     following have occurred:
       (A) Ten States comprising at least 20 percent of the total 
     population of all States imposing a sales tax, as determined 
     by the most recent Federal census, have petitioned for 
     membership and have become Member States under the Agreement.
       (B) The following necessary operational aspects of the 
     Agreement have been implemented by the Governing Board:
       (i) Provider and system certification.
       (ii) Setting of monetary allowance by contract with 
     providers.
       (iii) Implementation of an online multistate registration 
     system.
       (iv) Adoption of a standard form for claiming exemptions 
     electronically.
       (v) Establishment of advisory councils.
       (vi) Promulgation of rules and procedures for dispute 
     resolution.
       (vii) Promulgation of rules and procedures for audits.
       (viii) Provisions for funding and staffing the Governing 
     Board.
       (C) Each Member State has met the requirements to provide 
     and maintain the databases for sales and use taxes and the 
     taxability matrix described in the Agreement, pursuant to 
     requirements of the Governing Board.
       (3) Limitation of authority.--The authorization provided 
     under paragraph (1)--
       (A) shall be granted notwithstanding any other provision of 
     law; and
       (B) is dependent upon the Agreement, as amended, meeting 
     the minimum simplification requirements of section 6.
       (b) Termination of Authority.--
       (1) In general.--The authorization provided under 
     subsection (a) shall terminate for all States if--
       (A) the requirements contained in subsection (a) cease to 
     be satisfied; or
       (B) any amendment adopted to the Agreement after the date 
     of the enactment of this Act is inconsistent with the 
     provisions of this Act.
       (2) Loss of member state status.--The authorization 
     provided under subsection (a) shall terminate for a Member 
     State, if such Member State no longer meets the requirements 
     for Member State status under the terms of the Agreement or 
     the provisions of this Act.
       (c) Determination of Status.--
       (1) In general.--The Governing Board shall determine if 
     Member States are in compliance with the requirements of 
     subsections (a) and (b) and whether each Member State meets 
     the minimum simplification requirements of section 6, and 
     shall reevaluate such determination on an annual basis.
       (2) Compliance determination.--Upon the determination of 
     the Governing Board that all the requirements of subsection 
     (a) have been satisfied, the authority to require a seller to 
     collect and remit sales and use taxes shall commence on the 
     first day of a calendar quarter at least 6 months after the 
     date the Governing Board makes its determination.
       (3) Noncompliance determination.--Upon a final 
     determination by the Governing Board that a Member State is 
     not in compliance with the minimum simplification 
     requirements of section 6 or is otherwise not in compliance 
     with the Agreement, that Member State shall lose its remote 
     seller collection authority on the earlier of--
       (A) the date specified by the Governing Board; or
       (B) the later of--
       (i) the first day of January at least 2 years after the 
     Governing Board finally determined the State was not 
     compliant; or
       (ii) the first day of a calendar quarter following the end 
     of one full session of the State's legislature beginning 
     after the Governing Board finally determined the State was 
     not compliant.

     For purposes of this section, the terms ``final 
     determination'' or ``finally determined'' shall mean that all 
     appeals processes provided for in the Agreement have been 
     exhausted or the time for pursuing such appeals has expired. 
     An action before the Federal Court of Claims pursuant to 
     section 5 shall not operate to stay a State's loss of 
     collection authority.
       (4) Restoration of authority.--Any Member State that loses 
     its collection authority under this section must comply with 
     all provisions of this section to have its remote seller 
     collection authority restored.

     SEC. 5. DETERMINATIONS BY GOVERNING BOARD AND JUDICIAL REVIEW 
                   OF SUCH DETERMINATIONS.

       (a) Petition.--At any time after the Governing Board has 
     made the determinations required under section 4(c), any 
     person who may be affected by the Agreement may petition the 
     Governing Board for a determination on any issue related to 
     the implementation of the Agreement or on a Member State's 
     compliance with this Act or the Agreement.
       (b) Review in Court of Federal Claims.--Any person who 
     submits a petition under subsection (a) may bring an action 
     against the Governing Board in the United States Court of 
     Federal Claims for judicial review of the action of the 
     Governing Board on that petition if--
       (1) the petition relates to an issue of whether--
       (A) a Member State has satisfied or continues to satisfy 
     the requirements for Member State status under the Agreement;
       (B) the Governing Board has performed a nondiscretionary 
     duty of the Governing Board under the Agreement;
       (C) the Agreement--
       (i) continues to satisfy the minimum simplification 
     requirements of section 6; or
       (ii) otherwise continues to be consistent with the 
     provisions of this Act; or
       (D) any other requirement of section 4 has been satisfied; 
     and
       (2) the petition is denied by the Governing Board in whole 
     or in part with respect to that issue, or the Governing Board 
     fails to act on the petition with respect to that issue not 
     later than the 6-month period beginning on the day after the 
     date on which the petition was submitted.
       (c) Timing of Action for Review.--An action for review 
     under this section shall be initiated not later than 60 days 
     after the denial of the petition by the Governing Board, or, 
     if the Governing Board fails to act on the petition, not 
     later than 60 days after the end of the 6-month period 
     beginning on the day after the date on which the petition was 
     submitted.
       (d) Standard of Review.--
       (1) In general.--In any action for review under this 
     section, the court shall set aside the actions, findings, and 
     conclusions of the Governing Board found to be arbitrary, 
     capricious, an abuse of discretion, or otherwise not in 
     accordance with law.
       (2) Remand.--If the court sets aside any action, finding, 
     or conclusion of the Governing Board under paragraph (1), the 
     court shall remand the case to the Governing Board for 
     further action consistent with the decision of the court.
       (3) Nonmonetary relief.--In connection with any remand 
     under paragraph (2), the court may not award monetary relief, 
     but may award declaratory and injunctive relief.
       (e) Jurisdiction.--
       (1) Generally.--Chapter 91 of title 28, United States Code, 
     is amended by adding at the end the following new section:

     ``SEC. 1510. JURISDICTION REGARDING THE STREAMLINED SALES AND 
                   USE TAX AGREEMENT.

       ``The United States Court of Federal Claims shall have 
     exclusive jurisdiction over actions for judicial review of 
     determinations of the Governing Board of the Streamlined 
     Sales and Use Tax Agreement under the terms and conditions 
     provided in section 5 of the Main Street Fairness Act.''.
       (2) Conforming amendment to table of sections.--The table 
     of sections for chapter 91 of title 28, United States Code, 
     is amended by adding at the end the following new item:

``1510. Jurisdiction regarding the streamlined sales and use tax 
              agreement.''.

     SEC. 6. MINIMUM SIMPLIFICATION REQUIREMENTS.

       (a) In General.--The minimum simplification requirements 
     for the Agreement are as follows:
       (1) A centralized, one-stop, multistate registration system 
     that a seller may elect to use to register with the Member 
     States, provided a seller may also elect to register directly 
     with a Member State, and further provided that privacy and 
     confidentiality controls shall be placed on the multistate 
     registration system so that it may not be used for any 
     purpose other than the administration of sales and use taxes. 
     Furthermore, no taxing authority within a Member State or a 
     Member State that has withdrawn or been expelled from the 
     Agreement may use registration with the centralized 
     registration system for the purpose of, or as a factor in 
     determining, whether a seller has a nexus with that Member 
     State for any tax at any time.
       (2) Uniform definitions of products and product-based 
     exemptions from which a Member State may choose its 
     individual tax base, provided, however, that all local 
     jurisdictions in that Member State with respect to which a 
     tax is imposed or collected, shall have a common tax base 
     identical to the State tax base of that Member State. A 
     Member State may enact product-based exemptions without 
     restriction if the Agreement does not have a definition for 
     the product or for a term that includes the product. A Member 
     State shall relax the good faith requirement for acceptance 
     of exemption certificates in accordance with section 317 of 
     the Agreement, as in effect on the date of the enactment of 
     this Act.
       (3) Uniform rules for sourcing and attributing transactions 
     to particular taxing jurisdictions.
       (4) Uniform procedures for the certification of service 
     providers and software on which a seller may elect to rely in 
     order to determine Member State sales and use tax rates and 
     taxability.
       (5) Uniform rules for bad debts and rounding.
       (6) Uniform requirements for tax returns and remittances.
       (7) Consistent electronic filing and remittance methods.

[[Page S5075]]

       (8) Single, State-level administration of all Member State 
     and local sales and use taxes, including a requirement for a 
     State-level filing of tax returns in each Member State.
       (9) A provision requiring the elimination by each Member 
     State of caps and thresholds on the application of sales and 
     use tax rates and exemptions based on value, provided that 
     this limitation does not apply to the items identified in 
     sections 308C, 322, and 323 of the Agreement, as in effect on 
     the date of the enactment of this Act.
       (10) A provision requiring each Member State to complete a 
     taxability matrix, as adopted by the Governing Board. The 
     matrix shall include information regarding terms defined by 
     the Agreement in the Library of Definitions. The matrix shall 
     also include, pursuant to the requirements of the Governing 
     Board, information on use-, entity-, and product-based 
     exemptions.
       (11) A provision requiring that each Member State relieves 
     a seller or service provider from liability to that Member 
     State and local jurisdiction for collection of the incorrect 
     amount of sales or use tax, and relieves the purchaser from 
     penalties stemming from such liability, provided that 
     collection of the improper amount is the result of relying on 
     information provided by that Member State regarding tax 
     rates, boundaries, or taxing jurisdiction assignments, or in 
     the taxability matrix regarding terms defined by the 
     Agreement in the Library of Definitions.
       (12) Audit procedures for sellers, including an option 
     under which a seller not qualifying for the small business 
     exception may request, by notifying the Governing Board, to 
     be subject to a single audit on behalf of all Member States 
     for sales and use taxes. The Governing Board, in its 
     discretion, may authorize such a single audit.
       (13)(A) Subject to subparagraphs (B), (C), (D), and (E), a 
     provision requiring that in order for a Member State to 
     require collection with respect to remote sales under section 
     4, the Member State shall provide compensation for expenses 
     incurred by a seller directly in administering, collecting, 
     and remitting sales and use taxes to that Member State. Such 
     compensation may vary in each Member State as provided in the 
     Agreement.
       (B) Congress hereby finds that the compensation for 
     expenses incurred by sellers required of Member States under 
     the terms of the Agreement, as in effect on the enactment of 
     this Act, is the minimum compensation necessary, when 
     considered in connection with the simplification requirements 
     contained in the Agreement on the date authority to require 
     collection commences under section 4, to satisfy the 
     requirement under subparagraph (A) on such date.
       (C)(i) A provision requiring that the minimum compensation 
     required of a Member State under subparagraph (A) may be 
     modified as follows:
       (I) Adjusted in relationship to changes in the size of the 
     small business exemption adopted by the Governing Board.
       (II) Decreased as additional simplifications and 
     improvements in technology reduce collection costs.
       (III) Increased if provisions of the Agreement are adopted 
     that increase collection costs.
       (ii) Any such modification in the minimum required 
     compensation must be based on an independent review of the 
     expenses incurred by sellers in administering, collecting, 
     and remitting sales and use taxes and shall consider all 
     changes impacting such expenses and take into account and be 
     proportional to the increase or decrease in the expenses 
     incurred by sellers in administering, collecting, and 
     remitting sales and use taxes.
       (D) The compensation required by subparagraph (A) shall be 
     provided pursuant to the implementation schedule set out in 
     the Agreement. Nothing in this Act shall prohibit a Member 
     State from providing compensation greater than the amount 
     required by this Act or the Agreement or on a date earlier 
     than required by this Act or the Agreement.
       (E) Compensation necessary to meet the requirement of 
     subparagraph (A) may be provided to a seller or a third party 
     service provider whom a seller has contracted with to perform 
     the sales and use tax responsibilities of a seller.
       (14) Appropriate protections for consumer privacy.
       (15) Governance procedures and mechanisms to ensure timely, 
     consistent, and uniform implementation and adherence to the 
     principles of the streamlined system and the terms of the 
     Agreement.
       (16) A uniform rule to establish a small seller exception 
     to a requirement to collect authorized by this Act.
       (17) Uniform rules and procedures for sales tax holidays.
       (18) Uniform rules and procedures to address refunds and 
     credits for sales taxes relating to customer returns, 
     restocking fees, discounts and coupons, and rules to address 
     allocations of shipping and handling and discounts applied to 
     multiple item and multiple seller orders.
       (b) Requirement to Provide Simplified Tax Systems.--
       (1) In general.--The requirements of this section are 
     intended to ensure that each Member State provides and 
     maintains the necessary simplification to its sales and use 
     tax system to warrant the collection authority granted to 
     such Member State in section 4.
       (2) Reduction of administrative burdens.--The requirements 
     of this section should be construed--
       (A) to require each Member State to substantially reduce 
     the administrative burdens associated with sales and use 
     taxes; and
       (B) as allowing each Member State to exercise flexibility 
     in how these requirements are satisfied.
       (3) Exception.--In instances where exceptions to the 
     requirements of this section can be exercised in a manner 
     that does not materially increase the administrative burden 
     on a seller obligated to collect or pay the taxes, such 
     exceptions are permissible.
       (c) No Requirement to Exempt From or Impose Tax.--Nothing 
     in this Act or the Agreement shall require any Member State 
     or any local taxing jurisdiction to exempt, or to impose a 
     tax on any product, or to adopt any particular type of tax, 
     or to impose the same rate of tax as any other taxing 
     jurisdiction.

     SEC. 7. LIMITATION.

       (a) In General.--Nothing in this Act shall be construed 
     as--
       (1) subjecting a seller to franchise taxes, income taxes, 
     or licensing requirements of a Member State or political 
     subdivision thereof; or
       (2) affecting the application of such taxes or requirements 
     or enlarging or reducing the authority of any Member State to 
     impose such taxes or requirements.
       (b) No Effect on Nexus, etc.--
       (1) In general.--No obligation imposed by virtue of the 
     authority granted by section 4 shall be considered in 
     determining whether a seller has a nexus with any Member 
     State for any other tax purpose.
       (2) Permissible member state authority.--Except as provided 
     in subsection (a), and in section 4, nothing in this Act 
     permits or prohibits a Member State from--
       (A) licensing or regulating any person;
       (B) requiring any person to qualify to transact intrastate 
     business;
       (C) subjecting any person to State taxes not related to the 
     sale of goods or services; or
       (D) exercising authority over matters of interstate 
     commerce.

     SEC. 8. EXPEDITED JUDICIAL REVIEW.

       (a) Three-judge District Court Hearing.--Notwithstanding 
     any other provision of law, any civil action challenging the 
     constitutionality of this Act, or any provision thereof, 
     shall be heard by a district court of 3 judges convened 
     pursuant to the provisions of section 2284 of title 28, 
     United States Code.
       (b) Appellate Review.--
       (1) In general.--Notwithstanding any other provision of 
     law, an interlocutory or final judgment, decree, or order of 
     the court of 3 judges in an action under subsection (a) 
     holding this Act, or any provision thereof, unconstitutional 
     shall be reviewable as a matter of right by direct appeal to 
     the United States Supreme Court.
       (2) 30-day time limit.--Any appeal under paragraph (1) 
     shall be filed not more than 30 days after the date of entry 
     of such judgment, decree, or order.

     SEC. 9. DEFINITIONS.

       For the purposes of this Act the following definitions 
     apply:
       (1) Governing board.--The term ``Governing Board'' means 
     the governing board established by the Streamlined Sales and 
     Use Tax Agreement.
       (2) Member state.--The term ``Member State''--
       (A) means a Member State as that term is used under the 
     Streamlined Sales and Use Tax Agreement as in effect on the 
     date of the enactment of this Act; and
       (B) does not include associate members under the Agreement.
       (3) Nondiscretionary duty of the governing board.--The term 
     ``nondiscretionary duty of the Governing Board'' means any 
     duty of the Governing Board specified in the Agreement as a 
     requirement for action by use of the term ``shall'', 
     ``will'', or ``is required to''.
       (4) Person.--The term ``person'' means an individual, 
     trust, estate, fiduciary, partnership, corporation, limited 
     liability company, or any other legal entity, and includes a 
     State or local government.
       (5) Remote sale.--The term ``remote sale'' means a sale of 
     goods or services attributed to a particular Member State 
     with respect to which a seller does not have adequate 
     physical presence to establish nexus under the law existing 
     on the day before the date of the enactment of this Act so as 
     to allow such Member State to require, without regard to the 
     authority granted by this Act, the seller to collect and 
     remit taxes covered by this Act with respect to such sale.
       (6) Remote seller.--The term ``remote seller'' means any 
     seller who makes a remote sale.
       (7) State.--The term ``State'' means each of the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, Guam, American Samoa, the United States Virgin Islands, 
     the Commonwealth of the Northern Mariana Islands, and any 
     other territory or possession of the United States.
       (8) Streamlined sales and use tax agreement.--The term 
     ``Streamlined Sales and Use Tax Agreement'' (or ``the 
     Agreement'') means the multistate agreement with that title 
     adopted on November 12, 2002, as in effect on the date of the 
     enactment of this Act and unless the context otherwise 
     indicates as further amended from time to time.

     SEC. 10. SEVERABILITY.

       If any provision of this Act, an amendment made by this 
     Act, or the application of such provision or amendment to any 
     person or circumstance is held to be unconstitutional,

[[Page S5076]]

     the remainder of this Act, the amendments made by this Act, 
     and the application of the provisions of such to any person 
     or circumstance shall not be affected thereby.

     SEC. 11. SENSE OF CONGRESS ON DIGITAL GOODS AND SERVICES.

       It is the sense of Congress that each Member State that is 
     a party to the Agreement should work with other Member States 
     that are also parties to the Agreement to prevent double 
     taxation in situations where a foreign country has imposed a 
     transaction tax on a digital good or service.

      By Mr. DURBIN (for himself, Mr. Cochran, Mr. Brown of 
        Massachusetts, Mr. Levin, Mr. Cardin, Mr. Schumer, and Mr. 
        Inouye):
  S. 1454. A bill to amend title XVIII of the Social Security Act to 
provide for extended months of Medicare coverage of immunosuppressive 
drugs for kidney transplant patients and other renal dialysis 
provisions; to the Committee on Finance.
  Mr. DURBIN. Mr. President, today I am introducing the ``Comprehensive 
Immunosuppressive Drug Coverage for Kidney Transplant Patients Act'' 
with my colleagues Senators Cochran, Levin, Cardin, Schumer, Inouye, 
and Brown of Massachusetts.
  The Centers for Disease Control and Prevention estimates that about 
13 percent of American adults, 26 million people, have chronic kidney 
disease. Some of these individuals can improve their condition with 
medication and lifestyle changes, but approximately half a million of 
them have irreversible kidney failure, or end-stage renal disease, 
ESRD. These patients require dialysis or a kidney transplant to 
survive.
  Organ transplantation is a medical success story. Thousands of 
transplants are done every year, and for the patients fortunate enough 
to receive a donated organ, the quality and length of their lives can 
be dramatically improved. Of the more than 28,000 transplants performed 
in 2010, over 16,898 of them were kidney transplants.
  A large portion of these kidney transplants were paid for by the 
Medicare system, which provides healthcare to aged and disabled 
Americans, as well as those living with ESRD. Medicare also covers 
dialysis for patients who have not received a donor kidney and 
immunosuppressive drugs for kidney transplant recipients. Organ 
transplant recipients must take immunosuppressive drugs every day for 
the life of their transplant to reduce the risk of organ rejection.
  In 2000, Congress wisely eliminated the 36-month time limitation for 
aged and disabled beneficiaries who had Medicare status at the time of 
transplant. So today, for an older or disabled person on Medicare, 
immunosuppressive drugs are covered by Medicare for the life of the 
transplant.
  However, we still have an unfair and unrealistic gap in coverage for 
people with ESRD who are neither disabled nor elderly. For those 
transplant recipients, Medicare coverage, including coverage of 
immunosuppressive drugs, ends 36 months after transplantation. Without 
regular access to immunosuppressive drugs to prevent rejection, many 
patients find themselves back in a risky and frightening place, in need 
of a new kidney. This is economically inefficient and morally wrong.
  Since Medicare covers the cost of the transplant for end stage renal 
disease, it makes sense for Medicare to preserve this investment by 
covering anti-rejection drugs. It would be far less expensive for 
Medicare to cover immunosuppressive drugs at a cost of $10,000 to 
$20,000 a year than to pay for dialysis at $78,000 a year or another 
transplant at a cost of $110,000 if a patient's kidney fails and he is 
once again eligible for Medicare coverage.
  I am pleased to introduce the Comprehensive Immunosuppressive Drug 
Coverage for Kidney Transplant Patients Act along with my colleagues. 
This legislation would allow kidney transplant recipients to continue 
Medicare coverage for the purpose of immunosuppressive drugs only. All 
other Medicare coverage would end 36 months after the transplant.
  It is time to pass this legislation to provide continuous coverage 
for immunosuppressive drugs through Medicare. My legislation will 
reduce the need for dialysis and kidney re-transplants and provide 
reliable, sustained access to critically important, life-saving 
medications for thousands of Americans. In both moral and economic 
terms, this is the right decision.
  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. 1454

       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 ``Comprehensive 
     Immunosuppressive Drug Coverage for Kidney Transplant 
     Patients Act of 2011''.

     SEC. 2. EXTENDED MONTHS OF COVERAGE OF IMMUNOSUPPRESSIVE 
                   DRUGS FOR KIDNEY TRANSPLANT PATIENTS AND OTHER 
                   RENAL DIALYSIS PROVISIONS.

       (a) Medicare Entitlement to Immunosuppressive Drugs for 
     Kidney Transplant Recipients .--
       (1) Kidney transplant recipients.--Section 226A(b)(2) of 
     the Social Security Act (42 U.S.C. 426-1(b)(2)) is amended by 
     inserting ``(except for eligibility for enrollment under part 
     B solely for purposes of coverage of immunosuppressive drugs 
     described in section 1861(s)(2)(J))'' before ``, with the 
     thirty-sixth month''.
       (2) Individuals eligible only for coverage of 
     immunosuppressive drugs.--
       (A) Section 1836 of the Social Security Act (42 U.S.C. 
     1395o) is amended--
       (i) by striking ``Every'' and inserting ``(a) In General.--
     Every''; and
       (ii) by inserting at the end the following new subsection:
       ``(b) Individuals Eligible for Immunosuppressive Drug 
     Coverage.--Beginning on January 1, 2012, every individual 
     whose insurance benefits under part A have ended (whether 
     before, on, or after such date) by reason of section 
     226A(b)(2) is eligible for enrollment in the insurance 
     program established by this part solely for purposes of 
     coverage of immunosuppressive drugs.''.
       (B) Conforming amendment.--Sections 1837, 1838, and 1839 of 
     the Social Security Act (42 U.S.C. 1395(p), 42 U.S.C. 
     1395(q), 42 U.S.C. 1395(r)) are each amended by striking 
     ``1836'' and inserting ``1836(a)'' each place it appears.
       (3) Enrollment for individuals only eligible for coverage 
     of immunosuppressive drugs.--Section 1837 of the Social 
     Security Act (42 U.S.C. 1395(p)) is amended by adding at the 
     end the following new subsection:
       ``(m)(1) Any individual who is eligible under section 
     1836(b) to enroll in the medical insurance program 
     established under this part for purposes of coverage of 
     immunosuppressive drugs may enroll only in such manner and 
     form as may be prescribed by regulations, and only during an 
     enrollment period described in this subsection.
       ``(2) An individual described in paragraph (1) may enroll 
     beginning on the first day of the third month before the 
     month in which the individual first satisfies section 
     1836(b).
       ``(3) An individual described in paragraph (1) whose 
     entitlement for hospital insurance benefits under part A ends 
     by reason of section 226A(b)(2) on or after January 1, 2012, 
     shall be deemed to have enrolled in the medical insurance 
     program established by this part for purposes of coverage of 
     immunosuppressive drugs.''.
       (4) Coverage period for individuals only eligible for 
     coverage of immunosuppressive drugs.--
       (A) In general.--Section 1838 of the Social Security Act 
     (42 U.S.C. 1395q) is amended by adding at the end the 
     following new subsection:
       ``(g) In the case of an individual described in section 
     1836(b), the following rules shall apply:
       ``(1) In the case of such an individual who is deemed to 
     have enrolled in part B for coverage of immunosuppressive 
     drugs under section 1837(m)(3), such individual's coverage 
     period shall begin on the first day of the month in which the 
     individual first satisfies section 1836(b).
       ``(2) In the case of such an individual who enrolls in part 
     B for coverage of immunosuppressive drugs under section 
     1837(m)(2), such individual's coverage period shall begin on 
     the first day of the month in which the individual first 
     satisfies section 1836(b) or the month following the month in 
     which the individual so enrolls, whichever is later.
       ``(3) The provisions of subsections (b) and (d) shall apply 
     with respect to an individual described in paragraph (1) or 
     (2).
       ``(4) In addition to the reasons for termination under 
     subsection (b), the coverage period of an individual 
     described in paragraph (1) or (2) shall end when the 
     individual becomes entitled to benefits under this title 
     under section 226(a), 226(b), or 226A.''.
       (B) Conforming amendments.--Section 1838(b) of the Social 
     Security Act (42 U.S.C. 1395q(b)) is amended, in the matter 
     following paragraph (2), by adding ``or section 1837(m)(3)'' 
     after ``section 1837(f)'' each place it appears.
       (5) Premiums for individuals only eligible for coverage of 
     immunosuppressive drugs.--Section 1839 of the Social Security 
     Act (42 U.S.C. 1395r) is amended--
       (A) in subsection (b), by adding at the end the following 
     new sentence: ``No increase in the premium shall be effected 
     for individuals who are enrolled pursuant to section 1836(b) 
     for coverage only of immunosuppressive drugs.''; and
       (B) by adding at the end the following new subsection:

[[Page S5077]]

       ``(j) Determination of Premium for Individuals Only 
     Eligible for Coverage of Immunosuppressive Drugs.--The 
     Secretary shall, during September of each year, determine and 
     promulgate a monthly premium rate for the succeeding calendar 
     year for individuals who enroll only for the purpose of 
     coverage of immunosuppressive drugs under section 1836(b). 
     Such premium shall be equal to 35 percent of the monthly 
     actuarial rate for enrollees age 65 and over, determined 
     according to paragraph (1), for that succeeding calendar 
     year. The monthly premium of each individual enrolled for 
     coverage of immunosuppressive drugs under section 1836(b) for 
     each month shall be the amount promulgated in this 
     subsection. Such amount shall be adjusted in accordance with 
     subsections (c) and (f).''.
       (6) Government contribution.--Section 1844(a) of the Social 
     Security Act (42 U.S.C. 1395w(a)) is amended--
       (A) in paragraph (3), by striking the period at the end and 
     inserting ``; plus'';
       (B) by adding at the end the following new paragraph:
       ``(4) a Government contribution equal to the estimated 
     aggregate reduction in premiums payable under part B that 
     results from establishing the premium at 35 percent of the 
     actuarial rate under section 1839(j) instead of 50 percent of 
     the actuarial rate for individuals who enroll only for the 
     purpose of coverage of immunosuppressive drugs under section 
     1836(b).''; and
       (C) by adding at the end the following flush matter:
     ``The Government contribution under paragraph (4) shall be 
     treated as premiums payable and deposited for purposes of 
     subparagraphs (A) and (B) of paragraph (1).''.
       (7) Extension of secondary payer requirements for esrd 
     beneficiaries eligible for coverage of immunosuppressive 
     drugs.--Section 1862(b)(1)(C) of the Social Security Act (42 
     U.S.C. 1395(y)(b)(1)) is amended by adding at the end the 
     following new sentence: ``With regard to immunosuppressive 
     drugs furnished to an individual who enrolls for the purpose 
     of coverage of immunosuppressive drugs under section 1836(b) 
     on or after January 1, 2012, this subparagraph shall apply 
     without regard to any time limitation, except that when such 
     individual becomes entitled to benefits under this title 
     under sections 226(a) or 226(b), or entitled to or eligible 
     for benefits under this title under section 226A, the 
     provisions of subparagraphs (A) and (B), and the time 
     limitations under this subparagraph, respectively, shall 
     apply.''.
       (8) Ensuring coverage under the medicare savings program.--
     Section 1905(p)(1)(A) of the Social Security Act (42 U.S.C. 
     1396d(p)(1)(A)) is amended by inserting ``or an individual 
     who is enrolled under part B for the purpose of coverage of 
     immunosuppressive drugs under section 1836(b)'' after 
     ``section 1818''.
       (9) Part d.--Section 1860D-1(a)(3)(A) of the Social 
     Security Act (42 U.S.C. 1395w-101(a)(3)(A)) is amended by 
     inserting ``(but not including an individual enrolled solely 
     for coverage of immunosuppressive drugs under section 
     1836(b))'' before the period at the end.

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