[Congressional Record Volume 158, Number 123 (Thursday, September 13, 2012)]
[Senate]
[Pages S6342-S6344]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. KERRY:
S. 3539. A bill to encourage the adoption and use of certified
electronic health record technology by safety net providers and
clinics; to the Committee on Finance.
Mr. KERRY. Mr. President, the American Recovery and Reinvestment Act
of 2009, ARRA, provided Medicare and Medicaid incentive payments to
providers that adopt and meaningfully use electronic health records,
EHRs, in their practices. While this program has helped thousands of
providers, practices, and hospitals nationwide, many safety net
providers and clinics have not been able to benefit from the Medicaid
EHR incentives.
Safety net providers serve as a critical entry point into the health
care system, and provide essential health care services for millions of
low-income, uninsured and underinsured individuals. Given that Medicaid
eligibility levels are so low in many States, it is difficult for many
safety net providers to meet the 30 percent Medicaid threshold required
to participate in the Medicaid EHR incentive program even though their
patients are predominately low-income. Congress addressed this problem
only for practitioners working in federally-qualified health centers
and rural health centers by creating a 30 percent ``needy'' threshold
in ARRA for those providers. Unfortunately, ARRA fails to provide a
similar standard for other providers serving low-income individuals.
The Medicaid Information Technology to Enhance Community Health,
MITECH, Act of 2012 seeks to eliminate the barriers that prevent safety
net providers from qualifying from Medicaid EHR incentives.
Specifically, it would expand eligibility for meaningful use incentives
to providers that practice predominantly in a qualified safety net
clinic, QSNC. The act defines a QSNC as a clinic or network of clinics
that is operated by a private non-profit or public entity and that has
at least 30 percent of its patient volume attributable to needy
individuals. The act also directs the Secretary of Health and Human
Services to develop a methodology to allow these clinics to be eligible
for meaningful use payments as an entity, similar to the current
process that exists for hospitals.
I would like to thank the 13 national organizations who have been
integral to the development of this legislation and who have endorsed
it today, including the Association of State and Territorial Health
Officials, the HIV Medicine Association, Mental Health America, the
National Association of Public Hospitals, the National Family Planning
and Reproductive Health Association, and the Trust for America's
Health.
The MITECH Act will allow safety net clinics to better communicate
with patients about necessary screenings, help ensure compliance with
prescription drugs, and will strengthen the safety net which provides
essential care to so many Americans. It is my hope that we can move
forward with this bill in a bipartisan manner. I ask all of my
colleagues to support this important legislation.
______
By Mr. GRASSLEY (for himself and Mr. Franken):
S. 3545. A bill to amend title 11 of the United States Code to
clarify the rule allowing discharge as a nonpriority claim of
governmental claims arising from the disposition of farm assets under
chapter 12 bankruptcies; to the Committee on Finance.
Mr. GRASSLEY. Mr. President, I rise today to introduce, along with
Senator Franken, the Family Farmer Bankruptcy Tax Clarification Act of
2012. This bill addresses the recent United States Supreme Court case
Hall v. United States. In a 5-4 decision, the Supreme Court ruled the
provision I inserted into the 2005 Bankruptcy Abuse Prevention and
Consumer Protection Act did not accomplish what we intended. The Family
Farmer Bankruptcy Tax Clarification Act of 2012 corrects this and
clarifies that bankrupt family farmers reorganizing their debts are
able to treat capital gains taxes owed to a governmental unit, arising
from the sale of farm assets during a bankruptcy, as general unsecured
claims. This bill will remove the Internal Revenue Service's veto power
over a bankruptcy reorganization plan's confirmation, giving the family
farmer a chance to reorganize successfully.
In 1986 Congress enacted Chapter 12 of the Bankruptcy Code to provide
a specialized bankruptcy process for family farmers. In 2005 Chapter 12
was made permanent. Between 1986 and 2005 we learned what aspects
worked and did not work for family farmers reorganizing in bankruptcy.
One problematic area was where a family farmer needed to sell assets in
order to generate cash for the reorganization. Specifically, a family
farmer would have to sell portions of the farm to generate cash to fund
a reorganization plan so that the creditors could receive payment.
Unfortunately, in situations like this, the family farmer is selling
land that has been owned for a very long time, with a very low cost
basis. Thus, when the land is sold, the family farmer is hit with a
substantial capital gains tax, which is owed to the Internal Revenue
Service.
Under the Bankruptcy Code, taxes owed to the Internal Revenue Service
receive priority treatment. Holders of priority claims must receive
payment in full, unless the claim holder agrees to be treated
differently. This creates problems for the family farmer who needs the
cash to pay creditors to reorganize. However, since the Internal
Revenue Service has the ability to require full payment, they hold veto
power over a plan's confirmation, which means in many instances the
plan will not be confirmed. This does not make sense if the goal is to
give the family farmer a fresh start. Thus, in 2005 Congress said that
in these limited situations, the taxes owed to the Internal Revenue
Service could be treated as general, unsecured debt. This removed the
government's veto power over plan confirmation and paved the way for
family farmers to reorganize successfully.
However, in Hall v. United States, the Supreme Court ruled that
despite Congress's express goal of helping family farmers, the language
inserted into the Bankruptcy Code in 2005 conflicted with the Tax Code.
The Hall case was one of statutory interpretation. There is no question
what Congress was trying to do; rather, did Congress use the
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correct language? My goal, along with others at the time, was to
relieve family farmers from having their reorganization plans fail
because of huge tax liabilities to the federal government. Justice
Breyer noted this in the dissent: ``Congress was concerned about the
effect on the farmer of collecting capital gains tax debts that arose
during (and were connected with) the Chapter 12 proceedings themselves.
. . . The majority does not deny the importance of Congress' objective.
Rather, it feels compelled to hold that Congress put the Amendment in
the wrong place.'' Hall v. United States, 132 S.Ct. 1882, 1897, 2012,
Breyer, J., dissenting, internal citations and quotations omitted.
As a result of the Hall case, family farmers facing bankruptcy now
find themselves caught in an unfortunate situation. The rules have
changed and must be corrected in order to provide certainty and clarity
in the law. The Family Farmer Bankruptcy Tax Clarification Act of 2012
will provide the clarity needed to help family farmers reorganize in
bankruptcy.
This bill strikes the current language in the Bankruptcy Code, which
the Supreme Court said does not work, 11 U.S.C. Sec. 1222(a)(2)(A) and
inserts a new 11 U.S.C. Sec. 1222(a)(5). The new provision transforms
all government claims arising as a result of the sale or transfer of
post-petition farm assets into unsecured, non-priority claims,
notwithstanding any language in the Internal Revenue Code to the
contrary. The bill also provides new sections for treatment of these
claims during the bankruptcy process. The bill recognizes that some
asset sales may occur post-confirmation. As a result, we also provide a
mechanism for plan modification as a result of these sales, if used for
the specified purpose of reorganization, to assist in reorganization.
Finally, we make a technical change to 11 U.S.C. Sec. 1228(a), which
practitioners and commentators have long argued is needed. This
technical change is within the limited scope of this clarification
bill, as it provides greater certainty and clarity that has troubled
courts and practitioners alike.
I recognize the end of this session of Congress is near and the time
to do something is short. However, we have been fine tuning this
legislation to ensure it properly corrects the Hall case. We will seek
to do what we can during the remaining Congressional calendar to fix
the problem this year. Should we run out of time, then we will maintain
our focus on this problem into the next year. The Family Farmer
Bankruptcy Tax Clarification Act of 2012 ensures that what Congress
sought to do in 2005 actually occurs. In the wake of the Hall decision,
clarification is needed to help ensure family farmers facing bankruptcy
will have a chance to reorganize successfully.
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. 3545
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 ``Family Farmer Bankruptcy Tax
Clarification Act of 2012''.
SEC. 2. CLARIFICATION OF RULE ALLOWING DISCHARGE TO
GOVERNMENTAL CLAIMS ARISING FROM THE
DISPOSITION OF FARM ASSETS UNDER CHAPTER 12
BANKRUPTCIES.
(a) In General.--Section 1222(a) of title 11, United States
Code, is amended--
(1) in paragraph (2), by striking ``unless--'' and all that
follows through ``the holder'' and inserting ``unless the
holder'';
(2) in paragraph (3), by striking ``and'' at the end;
(3) in paragraph (4), by striking the period at the end and
inserting ``; and''; and
(4) by adding at the end the following:
``(5) notwithstanding the application of the rules under
subchapter V of chapter 1 of the Internal Revenue Code of
1986, and without regard to whether the claim arose before or
after the filing of the petition, provide for the treatment
and payment of any unsecured claim owed to a governmental
unit by the debtor or the estate that arises as a result of
the sale, transfer, exchange, or other disposition of any
farm asset used in the debtor's farming operation as an
unsecured claim that is not entitled to priority under
section 507.''.
(b) Postpetition Claims Relating to Sale, Transfer,
Exchange, or Other Disposition of Farm Assets.--
(1) In general.--Section 1222 of title 11, United States
Code, is amended by adding at the end the following:
``(e)(1) A governmental unit may file a proof of claim for
a claim described in subsection (a)(5) that arises after the
date on which the petition is filed.
``(2)(A) Except as provided in subparagraph (B), if a
governmental unit has not filed a proof of claim under
paragraph (1) for a claim described in subsection (a)(5),
after the date that is 120 days after the date on which the
claim arises, the trustee or the debtor may file proof of
such claim.
``(B)(i) For a claim described in subsection (a)(5) that is
a tax for which a return is due, if the debtor or trustee has
provided notice as described in clause (ii) and the
governmental unit has not filed a proof of claim under
paragraph (1), after the date that is 180 days after the date
on which the debtor or trustee provides the notice, the
debtor or the trustee may file proof of such claim.
``(ii) Notice as described in this clause is notice by the
debtor or the trustee--
``(I) indicating the intent to file the applicable claim;
``(II) setting forth the amount of the claim;
``(III) that includes a copy of the filed return relating
to the claim; and
``(IV) that is delivered to the governmental unit at the
address designated for requests made under section
505(b)(1)(A).
``(3) A claim filed under paragraph (1) or (2) shall be
allowed or disallowed under section 502, but shall be
determined as of the date such claim arises, and shall be
allowed under section 502(a), (b), or (c) of this title, or
disallowed under section 502(d) or 502(e) of this title the
same as if such claim had arisen before the date of the
filing of the petition.''.
(2) Modification of plan after confirmation.--Section
1229(a) of title 11, United States Code, is amended--
(A) in paragraph (2), by striking ``or'' at the end;
(B) in paragraph (3), by striking the period at the end and
inserting ``; or''; and
(C) by adding at the end the following:
``(4) provide for the payment of a claim described in
section 1222(a)(5) that arose after the date on which the
petition is filed.''.
(c) Technical Correction.--Section 1228(a) of title 11,
United States Code, is amended in the matter preceding
paragraph (1)--
(1) by inserting a comma after ``all debts provided for by
the plan''; and
(2) by inserting a comma after ``allowed under section 503
of this title''.
(d) Effective Date.--The amendments made by this section
shall apply to any bankruptcy case that--
(1) is pending on the date of enactment of this Act and
relating to which an order of discharge under section 1228 of
title 11, United States Code, has not been entered; or
(2) commences on or after the date of enactment of this
Act.
______
By Mr. KERRY (for himself, Mr. Lieberman, Mr. Sanders, and Mr.
Blumenthal):
S. 3547. A bill to amend the Lacey Act Amendments of 1981 to clarify
provisions enacted by the Captive Wildlife Safety Act, to further the
conservation of certain wildlife species, and for other purposes; to
the Committee on Environment and Public Works.
Mr. KERRY. Mr. President, today I am introducing the Big Cats and
Public Safety Protection Act to protect public safety, improve animal
welfare, assist international big cat conservation, and to help clarify
the existing patchwork of current state regulation. This is a companion
for legislation previously introduced in the House by Representatives
Howard McKeon and Loretta Sanchez. Amazingly, it is unknown even how
many big cats such as lions, cougars, leopards, and cheetahs live or
are bred in private possession in the United States. This bill would
prevent the private possession and breeding of big cats, while still
allowing properly accredited zoos and wildlife sanctuaries to continue
to operate in the critical conservation and animal welfare roles that
they occupy today.
Why is this legislation so important? First, this is a public safety
issue, which was made tragically clear almost a year ago in Zanesville,
Ohio, when the owner of a backyard zoo opened the cages of his tigers,
leopards, lions, wolves, bears, and monkeys before killing himself.
Wild animals were literally roaming the streets where children were
playing and people were going about their daily lives. Sadly, the
situation gave police no choice but to shoot and kill almost 50
animals, including 38 big cats, before they could enter populated
areas. Public safety officials were, understandably, not trained or
equipped to deal with large exotic animals especially 300 pound tigers.
This tragedy should serve as a chilling wakeup call about our lack of
safeguards around large, wild species being kept as pets. In the past
11 years in the United States, incidents involving captive big cats
have resulted in the deaths of 21 people, 16 adults and 5 children.
During the same time period,
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there have been 246 maulings, 253 escapes, 143 big cat deaths, and 128
confiscations.
This is also an animal welfare issue. Research shows that the captive
big cat community is characterized by a systemic culture of inhumane
mistreatment of the animals. One major reason for this is that once
individual big cats have outgrown the infancy stage when they are most
profitable, they are often warehoused in terrible conditions. Because
private ownership is allowed to continue, many sanctuaries for
mistreated or unwanted big cats are at or nearing capacity and lack
financial reserves to provide greater assistance. The recent closure of
a major sanctuary in Texas that had over 50 big cats has made matters
worse.
Third, this is a matter of conservation. Tigers, for example, are
extremely endangered by poaching and trade, and illegal tiger products
continue to be smuggled into the U.S. from foreign countries. One of
the biggest threats to wild tigers is the demand for tiger parts and
products, and leakage of captive tiger parts and products into the
illegal market continues to encourage demand, perpetuating poaching and
threatening remaining wild populations.
Finally, this bill will address the current patchwork state
regulation. There are still two states that have no regulations or
permits at all regarding private ownership of exotic animals including
big cats. Seven other States have little to no regulations of private
ownership of exotic animals including big cats. Another 14 states allow
big cat possession only with a state permit, and 27 states and the
District of Columbia have enacted full bans on private ownership of big
cats, though all of those exempt federally-licensed exhibitors. Given
the risks I have already outlined, this kind of regulatory patchwork is
simply unacceptable and could be dangerous.
I believe that the Big Cats and Public Safety Protection Act will
help ensure that lions, tigers, and other potentially dangerous big
cats do not threaten public safety, harm global conservation efforts,
or end up living in squalid conditions where they are subject to
mistreatment and cruelty.
A number of organizations are supportive of this bill, including the
International Fund for Animal Welfare, the Humane Society of the United
States, Born Free USA, Big Cat Rescue, the Animal Welfare Institute,
and the World Wildlife Foundation.
I would like to recognize Senators Lieberman, Sanders, and Blumenthal
as original cosponsors of this bill. I look forward to continued
progress in enhancing the protection and conservation of wild big cats
and in increasing public safety from the dangers of these untamed
animals.
______
By Mr. AKAKA:
S. 3548. A bill to clarify certain provisions of the Native American
Veterans Memorial Establishment Act of 1994; to the Committee on Indian
Affairs.
Mr. AKAKA. Mr. President, as Chairman of the Committee on Indian
Affairs, I am introducing legislation to make technical corrections to
the National Native American Veterans' Memorial Act of 1994.
The 1994 Act honors the profound contributions of Native Veterans by
authorizing the construction of a National Native American Veterans'
Memorial. Unfortunately, technical issues with the law have made it
difficult to move forward with the Memorial. The bill I am introducing
today seeks to alleviate those obstacles.
My legislation would make technical corrections in order to allow the
National Museum of American Indian to join the National Congress of
American Indians in the fundraising efforts for the Memorial. In
addition, my bill would allow the Memorial to be constructed on the
property provided for by the National Museum of American Indian Act.
Per capita, American Indians, Alaska Natives, and Native Hawaiians
serve at a higher rate in the Armed Forces than any other group of
Americans. Native peoples have served in all of the Nation's wars since
the Revolutionary War. A memorial in their honor is well-deserved and
long overdue.
My non-controversial, no cost, technical amendments bill will make it
easier to construct the authorized memorial to honor our Native
Veterans.
____________________