Three Affiliated Tribes Health Facility Compensation Act

Mr. President, the legislation I am introducing today with Senators Cochran, Lincoln, Collins, Daschle, Jeffords, Clinton, Cantwell, and Johnson is entitled the Children's Dental Health Improvement Act of 2003. This legislation is designed to improve the access and delivery of dental health services to our Nation's children through Medicaid, the State Children's Health Insurance Program, (SCHIP), the Indian Health Services, IHS, and our Nation's safety net of community health centers.

The oral health problems facing children are highlighted in a landmark report issued by the Surgeon General and the Department of Health and Human Services, HHS, in 2000 entitled ``Oral Health in America: A report of the Surgeon General'' in which he observed that our Nation is facing what amounts to ``a `silent epidemic' of dental and oral diseases.''

In fact, dental caries, which refers to both decayed teeth or filled cavities, is the most common childhood disease. According to the Surgeon General,``Among 5- to 17-years olds, dental caries is more than 5 times as common as a reported history of asthma and 7 times as common as hay fever.'' In short, dental care is, as the Surgeon General adds,``the most prevalent unmet health need among American children.''

I was pleased to chair a hearing in the Health, Education, Labor and Pensions Committee on June 25, 2002, entitled ``The Crisis in Children's Dental Health: A Silent Epidemic'' in which the Surgeon General, Dr. David Satcher, testified. Dr. Satcher's testimony was strong and compelling.

In his words, ``Over 108 million children and adults lack dental insurance, which is over 2.5 times the number who lack medical insurance.'' Dr. Satcher also highlight the following information specific to the oral health problems in children:

There are striking disparities in dental disease by income. Poor children suffer twice as much dental cries as their more affluent peers, and their disease is more likely to be untreated. These poor- nonpoor differences continue into adolescence. One out of four children in America is born into poverty, and children living below the poverty line--annual income of $17,000 for a family of four--have more severe and untreated decay.

Other birth defects such as hereditary ectodermal dysplasias, where all or most teeth are missing or misshapen, cause lifetime problems that can be devastating to children and adults.

Unintentional injuries, many of which include head, mouth, and neck injuries, are common in children.

Intentional injuries commonly affect the craniofacial tissues.

Tobacco-related oral lesions are prevalent in adolescents who currently use smokeless--spit tobacco.

Professional care is necessary for maintaining oral health, yet 25 percent of poor children have not seen a dentist before entering kindergarten.

Medical insurance is a strong predictor of access to dental care. Uninsured children are 2.5 times less likely than insured children to receive dental care. Children from families without dental insurance are three times more likely to have dental needs than children with either public or private insurance. For each child without medical insurance, there are at least 2.6 children without dental insurance.

Medicaid has not been able to fill the gap in providing dental care to poor children. Fewer than one in five Medicaid-covered children received a single dental visit in a recent year-long study period. While recent CMS data indicate progress in this area with 1 million more Medicaid-eligible children now receiving annual dental care than was the case in 1996, there is still a long way to go to ensuring greater access. Although new programs such as the State Children's Health Insurance Program, SCHIP, may increase the number of insured children, many will still be left without effective dental coverage.

The social impact of oral diseases in children is substantial. More than 51 million school hours are lost each year to dental-related illness. Poor children suffer nearly 12 times more restricted-activity days than children from higher income families. Pain and suffering due to untreated diseases can lead to problems in eating, speaking, and attending to learning.

Over 50 percent of 5- to 9-year-old children have at least one cavity or filling, and that proportion increases to 78 percent among 17-year- olds. Nevertheless, these figures represent improvements in the oral health of children compared to a generation ago.

The Senate also heard the testimony of Dr. Burton Edelstein, founding director of the Children's Dental Health Project; Dr. Gregory Chadwick, president of the American Dental Association; Dr. Lynn Douglass Moundon, director of oral health in the Arkansas Department of Health; Ed Martinez, chief executive officer at San Ysidro Health Center in California; and, Dr. Timothy Shriver, president and chief executive officer of Special Olympics, Inc.

Dr. Edelstein underscored the need for more attention to this issue. As he said, ``The too-widespread belief that childhood dental disease has been vanquished states in contrast to the thousands upon thousands of toothaches and acute abscesses experienced daily by America's children--many as young as 2 years of age.''

In endorsing this legislation, Dr. Chadwick added, ``. . . we cannot forget the fact that millions of people in this country--particularly children--aren't getting even basic preventive and restorative dental care. These children are out there suffering.''

The Children's Dental Health Improvement Act of 2003 seeks to end that suffering. One important provision in the bill would grant States flexibility

to provide dental coverage to low-income children through the State Children's Health Insurance Program, or SCHIP, just as States currently are able to do through Medicaid.

Unfortunately, SCHIP law prohibits coverage of children for services unless they are completely uninsured. As authors Ruth Almeida, Ian Hill, and Genevieve Kenney of an Urban Institute report entitled ``Does SCHIP Spell Better Dental Care for Children? An Early Look at New Initiatives write'', ``. . . many low-income children are covered by employer-based or other private health insurance for their medical care, but do not have a comprehensive dental benefit. Because these children are privately insured, they are not eligible for SCHIP and cannot avail themselves of dental coverage under SCHIP. Expanding SCHIP to furnish dental services on a wraparound basis to private covered low-income children without dental coverage could help achieve broader improvements in children's oral health.''

For low-income children with medical coverage but no dental insurance through the private sector, their only option would be to completely dump their private coverage for their children in order to access SCHIP coverage.

Instead, the Children's Dental Health Improvement Act of 2003 creates an option for States to provide low-income families with the ability to receive wraparound dental coverage through SCHIP without having to completely drop their private insurance. This reduces the crowd-out of private insurance, which was a priority of the Congress during passage of SCHIP, and it provides low-income children with dental services that other children in the same economic circumstance are already receiving through SCHIP.

In implementing such a change, I want to make it clear that I am in strong support of providing additional funding to SCHIP to ensure that these services are provided without reducing current levels of SCHIP funding. With those additional funds, I strongly believe that SCHIP, just as Medicaid, should provide services to low-income children who are both uninsured and underinsured. Children need a comprehensive set of child health services, including dental services, to ensure their appropriate health and development.

However, coverage for these services is often not enough. Even when children do have dental coverage, the access to care is often sorely lacking. Medicaid is the largest insurer of dental coverage to children. Yet despite the design of the Medicaid Program to ensure access to comprehensive services for children, including dental care, the inspector general of the Department of Health and Human Services reported in 1996 that only 18 percent of children eligible for Medicaid received even a single preventive dental service. The same report shows that no State provides preventive services to more than 50 percent of eligible children. The factors are complex but the primary one is due to limited dental participation in Medicaid.

According to GAO, in its September 2000 report entitled ``Oral Health: Factors Contributing to Low Use of Dental Services by Low- Income Populations.'' ``Of 39 states that provided information about dentists' participation in Medicaid, 23 reported that fewer than half of the states' dentists saw at least one Medicaid patient during 1999.'' Even worse, a 1998 survey by the National Conference of State Legislatures indicates that fewer than 20 percent of dentists participate in the Medicaid Program nationwide.

The GAO concludes poor participation rates by dentists is due in large part to poor reimbursement rates in Medicaid. As the GAO points out, ``Our analysis showed that Medicaid payment rates are often well below dentists' normal fees. Only 13 states had Medicaid rates that exceeded two-thirds of the average regional fees dentists charged. . . .''

Clearly, Medicaid is chronically underfunded with respect to dental care. The Surgeon General's report notes, ``On average, state Medicaid agencies contribute only 2.3 percent of their child health expenditures to dental care, whereas nationally, the percentage of all child health expenditures dedicated to dental care is more than 10 times that rate, almost 30 percent.''

The good news is that many States, including New Mexico, have taken recent actions to improve the participation of dentists in the Medicaid Program by raising low payment rates and reducing administrative requirements. These efforts were highlighted by the GAO in its September 2000 report. To further encourage such efforts, the ``Children's Dental Health Improvement Act of 2003'' provides $50 million annually as financial incentives and planning grants to States to undertake additional improvements in their Medicaid Programs delivery of dental health services to children.

In addition to Medicaid and SCHIP, the Federal Government administers other health care programs providing dental services or providers for low-income children and their families, including services administered by community health centers and the Indian Health Service, or IHS. Unfortunately, both of these programs are underfunded and, as the GAO found, ``report difficulty in meeting the dental needs of their target populations.''

For example, the GAO found that ``HHS and health center officials report that the demand for dental services significantly exceeds the [urban and rural health] centers' capacity to deliver it. In 1998 . . ., a little more than half of the nearly 700 health center grantees funded under this program had active dental programs.'' This is also true for public health departments across the country.

To assist the health centers and public health departments with this need, the Children's Dental Health Improvement Act of 2003 provides $40 million to community health centers and public health departments to expand dental health services through the hiring of additional dental health professionals to serve low-income populations.

This is particularly a problem that needs to be addressed in areas with severe dental health professional shortages, such as New Mexico. For example, New Mexico ranked next to last in the Nation with just 32.1 dentists per 100,000 population in 1998, according to HHS. This compares to the national average of 48.4 per 100,000. Moreover, the number of dentists in New Mexico declined by 7 percent between 1991 and 1998 while the State's population grew 12 percent. The result was a 17 percent decline in dentists per capita during the period.

With regard to American Indian and Alaska Native populations, the need is so great and the funding so little that a comprehensive solution is requiring throughout the IHS system. With respect to the unmet need, the GAO notes that ``American Indian and Alaska Native children aged 2 to 4 years old have five times the rate of decay that all children have.''

Unfortunately, the GAO adds, ``. . . about one-fourth of IHS' dentist positions at 269 IHS and tribal facilities were vacant in April 2000. Vacancies have been chronic at IHS facilities--in the past 5 years, at least 67 facilities have had one or more dentist positions vacant for at least a year. According to IHS officials, the primary reason for these vacancies is that IHS is unable to provide a competitive salary for new dentists . . .''

The GAO continues, ``The IHS' dental personnel shortages translate into a large unmet need for dental services among American Indians and Alaska Natives. IHS reports that only 24 percent of the eligible population had a dental visit in 1998. The personnel shortages have also reduced the scope of services that facilities are able to provide. According to IHS officials, available services have concentrated more on acute and emergency care, while routine and restorative care have dropped as a percentage of workload. Emergency services increased from one-fifth of the workload in 1990 to more than one-third of the workload in 1999.''

To help alleviate this workforce shortage, the Children's Dental Health Improvement Act of 2003 provides IHS with the authority to offer multiyear retention bonuses to dental providers offering services through the IHS and tribal programs.

The bill also provides for some technical amendments to ensure that tribal organizations and community health centers are allowed to apply for school-based dental sealant funding from the Centers for Disease Control and Prevention, or CDC.

The legislation also has a new provision that addresses a technical and unintended problem with the implementation of provisions changing the way Medicare graduate medical education, or GME, is funded. As background in the Balanced Budget Act of 1997, or BBA, Congress recognized the unfairness of subjecting dentistry to GME policies based on the oversupply of physician specialists by exempting dental residency positions from caps placed on the number of residents supported by Medicare GME.

However, the two provisions in that law--both enacted primarily to alleviate the impact on hospitals that decrease physician slots--have had the opposite impact on hospitals that increase their dental residency positions. While successful in achieving the purpose of reducing the number of physicians being trained, these provisions have hurt dentistry and access to oral health care in the United States and are contrary to the congressional goal in 1997 to increase the number of postgraduate dental residency slots. As a result, the legislation would exempt dental residency training positions from the 3-year rolling average provision used to calculate the number of residents for Medicare GME payments.

The bipartisan legislation I am introducing today would improve the access and delivery of dental health services to our Nation's children through Medicaid, SCHIP, IHS, and our Nation's safety net of community health centers. These problems are well documented and call out for congressional action as soon as possible.

I would like to thank the American Dental Association, the American Dental Education Association, the American Academy of Pediatric Dentistry, the National Association of Community Health Centers, Inc., the National Association of Children's Hospitals, the American Dental Hygienists' Association, and the Children's Dental Health Project for their outstanding support and/or their technical advice on this legislation. This bill is a result of their outstanding work.

In particular, I want to thank Dr. Burt Edelstein, Libby Mullin, and Ann De Biasi of the Children's Dental Health Project for their vast knowledge and technical assistance on this issue. I want to thank Judy Sherman of the American Dental Association, Myla Moss and Jack Bresch of the American Dental Education Association, Dr. Herber Simmons and Scott Litch of the American Academy of Pediatric Dentistry, Karen Sealander of the American Dental Hygienists' Association, Dr. Jim Richeson and Judy Kloss Bynum of the Academy of General Dentistry, Dr. Stephen Corbin of Special Olympics, Inc., and Dan Hawkins, Chris Koppen, and Roger Schwartz of the National Association of Community Health Centers, Inc., for their valuable insight, technical advice, and continued support for this legislation. I look forward to working with them all to ensure that we achieve increased access to oral health care for our children.

In addition to those organizations, I would like to thank the following groups for their support of the bill, whether in the past session of Congress or this year. They include: the Academy of General Dentistry, American Academy of Child and Adolescent Psychiatry, American Academy of Oral and Maxillofacial Pathology, American Academy of Periodontology, American Association of Dental Examiners, American Association of Dental Research, American Association of Endodontists, American Association of Public Health Dentistry, American Association of Oral and Maxillofacial Surgeons, American Association of Orthodontists, American Association of Women Dentists, American College of Dentists, American College of Preventive Medicine, American Dental Trade Association, American Public Health Association, American Society of Dentistry for Children, American Student Dental Association, Association of Clinicians for the Underserved, Association of Maternal and Child Health Programs, Association of State and Territorial Dental Directors, Dental Dealers of America, Dental Manufacturers of America, Inc., Family Voices, Hispanic Dental Association, International College of Dentists--USA, March of Dimes, National Association of City and County Health Officers, National Association of Local Boards of Health, National Dental Association, National Health Law Program, New Mexico Department of Health, Partnership for Prevention, Society of American Indian Dentists, Special Care Dentistry, and United Cerebral Palsy Associations.

Mr. President, I ask unanimous consent for the text of the bill to be printed in the Record.

Mr. President, today, I am introducing a bill with Senators Daschle, Boxer, and Lincoln that will be jointly introduced by Representatives Ciro Rodriguez, Hilda Solis, and others in the House of Representatives entitled the ``Hispanic Health Improvement Act of 2003.'' This bill addresses the tremendous health disparities that confront the Hispanic community in our Nation.

Even if you know the statistics, they remain shocking. Over one- third, a 35 percent of Hispanic adults lack health insurance. Despite that passage of the Children's Health Insurance Program, 27 percent of Latino children remain uninsured, which is sharp comparison to 9 percent of white, 18 percent of black and 17 percent of Asian/Pacific Islander children.

In testimony before the Senate Health, Education, Labor and Pensions Committee on September 23, 2002, on Hispanic health issues, Dr. Glenn Flores, chair of the Latin Consortium of the American Academy of Pediatrics Center for Child Health Research, added: ``Among uninsured poor children in the U.S., Latinos outnumber all other racial/ethnic groups, including whites: there are 1 million poor, uninsured Latino children, compared with 766,000 white, and 533,000 African-American poor, uninsured children. Although 1999 marked the first time in many years that the proportion of uninsured Latino children actually decreased (from 30 percent to 27 percent), recent national data suggest that outreach efforts to enroll Latino children have largely been unsuccessful. A Kaiser Commission report found that only 26 percent of parents of eligible uninsured children said that they had ever talked to someone or received information about Medicaid enrollment, and 46 percent of Spanish-speaking parents were unsuccessful at enrolling their uninsured children in Medicaid because materials were unavailable in Spanish.''

In order to address the lack of health care coverage, the legislation would expand CHIP to cover pregnant women and parents of children enrolled in CHIP. The legislation provides $50 million in grants to community-based groups to improve outreach and enrollment of children in Medicaid and CHIP with the grants targeted to Hispanic communities.

In addition, the bill eliminates a number of enrollment barriers within Medicaid.

And finally, it provides States the option to enroll legal immigrant pregnant women and children in Medicaid or CHIP. This comes from legislation introduced by Senator Graham earlier in this Congress.

In addition to poor coverage rates, according to the Centers for Disease Control and Prevention, or CDC, the Hispanic population has morbidity and mortality rates that more often than not exceed that of any other ethnic groups. For example, age-adjusted mortality rates for diabetes are over 50 percent higher among Hispanic persons than non- Hispanic whites. HIV infection rates are over 3 times those of non- Hispanic whites. Tuberculosis rates among Latino children are 13 times that of whites.

The legislation addresses these problems in a number of ways. In the area

of access and affordability, our bill requires an annual report to Congress on how federal programs are responding to improve the health status of Hispanic individuals with respect to diabetes, cancer, asthma, HIV infection, AIDS, substance abuse, and mental health. The bill provides $100 million for targeted diabetes prevention, education, school-based programs, and screening activities in the Hispanic community.

In addition, the legislation specifically addresses the problems facing communities along the U.S.-Mexico border, a 2,000-mile stretch of land that contains 11 million people, 5 of the 7 poorest metropolitan statistical areas in the country, and disease rates in some areas that are extraordinary. If the region were a state, the border would rank 1st in the number of uninsured, last in terms of per capita income, and 1st in a number of diseases.

As Dr. Francisco Cigarroa, president of the University of Texas Health Sciences Center at San Antonio, noted in testimony at the hearing last year on Hispanic health, ``Germs respect no INS regulations. We truly must work with our neighbors to the South if we are to avoid a major influx of new conditions and diseases. It can be seen so clearly on a map. Just as there are `rivers of commerce' there are `rivers of infectious disease' and though they may start at the Border, they are eventually seen all the way to the northern Border that we share with Canada.''

In response, the bill provides $200 million to border communities to improve health services and infrastructure along the U.S.-Mexico border.

The numbers I have cited thus far indicate what we do know. Almost as much of a concern is what we do not know with respect to the status of Hispanic health in this Nation. According to one study, only 22 percent of all articles published in major medical journals included non- English-speaking patients.

The bill provides funding to do additional research and work on reducing health disparities in this Nation. The various provisions include efforts to improve the recruitment and retention of Hispanic health professionals and programs that support training health professionals who can provide culturally competent and linguistically appropriate care. With respect to training more minority health professionals, Dr. Cigarroa said at last year's hearing, ``We should do this because it is the smart thing to do. If we fail to take steps to address the gap between the health of the majority population and the health of the Nation's rapidly growing minority populations, we are on a court leading to a collision. We are far too great a nation to allow this to happen.''

Representative Ciro Rodriguez, chairman of the Congressional Hispanic Caucus, and I, have worked together on this legislation to respond to the challenge before us with regard to coverage, access, and health disparities in the last Congress and have reintroduced the bill with the hope to move it forward this year.

Before closing, it should be noted that while the legislation puts forth a number of initiatives to address what are disproportionately Hispanic problems, each section of the bill, including those to reduce the number of uninsured and to improve access to care, would improve the overall health of our entire Nation regardless of race or ethnicity.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I have sought recognition to explain the provisions of the ``Veterans Prescription Drugs Assistance Act of 2003,'' a bill that I have introduced today to assist Medicare-eligible veterans struggling with the costs of prescription medications.

I fully understand that Congress, and the President, are working very hard on legislation to take on the larger issue of providing a prescription drug benefit for all American seniors. I applaud that effort, and I will continue to work with my colleagues to see that Congress enacts legislation to help all seniors who struggle with the ever-increasing costs of necessary medications. But in the meantime, as Chairman of the Committee on Veterans Affairs, I offer legislation to allow Medicare-eligible veterans to obtain prescription drugs from the Department of Veterans Affairs, VA, at the significantly discounted costs that VA, as a high-volume purchaser of prescriptions medications, is able to secure in the marketplace.

Earlier this year, VA Secretary Anthony J. Principi was forced to limit access to VA care by suspending new enrollments of non-service- disabled middle and higher income veterans who were not enrolled for care as of January 17, 2003. The Secretary was forced to so act because the number of patients provided care by VA has more than doubled in just five years. And as a result, VA's medical care system has been overwhelmed and, as a consequence, VA has been unable to provide timely access to healthcare for all veterans who have sought it and appointment waiting times have grown to alarming levels. But in almost every news story that followed the Secretary's difficult decision, it was noted that many of the new enrollees who had overwhelmed VA's capacity to provide care were Medicare-eligible veterans who were able to get Medicare-financed care elsewhere--but who were seeking access to the relatively generous prescription drug program provided to veterans under VA care.

Currently, VA provides enrolled patients with prescription medications for $7.00 for each 30-day supply. But to get such prescriptions, the veteran must obtain the full range of medical care from VA. This fact, coupled with the Secretary's decision to close enrollment, means that veterans who are now--or who will be--eligible for Medicare who had not enrolled for VA care prior to January 17, 2003, will be unable to access VA's generous prescription drug benefits. This legislation would provide some relief for those veterans. In addition, I anticipate that it may induce some VA-enrolled Medicare-eligible veterans--those who were happy with their Medicare- financed care but who enrolled for VA care to gain access to VA- supplied drugs--to return to non-VA care with knowledge that they will be able to get their non-VA prescriptions filled through VA. Enactment of this provision, then, would reduce--not exacerbate--VA patient backlog numbers.

The premise of this legislation is straightforward: VA fills and distributes more than 100 million prescriptions each year for its 4.5 million veteran-patients. As a result, it has significant purchasing power--power which, coupled with VA's formulary program, allows it to negotiate very favorable prices for prescription drugs. According to the National Association of Chain Drug Stores, the average ``cash cost'' of a prescription in 2001 was $40.22. The average VA per- prescription cost in 2001 was $22.87--almost 50 percent less. The average per-prescription price paid by VA this year is up to just under $25--a slower growth rate than the 6.7 percent annual growth experienced in the population at large since 2001.

My purpose is to afford Medicare-eligible veterans access to such discounts. I do not propose that VA be directed to supply drugs to all Medicare-eligible veterans at VA expense, or even with a partial VA subsidy. VA has stated that such a mandate would divert VA funding-- which, clearly, is already stretched to the limit--away from VA priority patients: the service-connected, the poor, and those with special needs. I accept VA's statement of concern; I accept and I insist--that scarce funding be directed, first, to meet the needs of priority patients. This legislation, therefore, requires that VA recover the costs of drugs it supplies under this program from veterans who bring their prescriptions from outside doctors to VA.

I do not propose to tell VA in this bill how to recover these costs. VA is better positioned than I to make such judgments. Thus, my legislation provides flexibility to VA to design and test payment mechanisms to best accomplish cost recovery while still easing veterans' access to the drugs they need. It might be that enrollment fees, a copayment structure, or a simple ``cost-plus''--for administrative expenses pricing format--or some combination of those mechanisms--works best. And it might be that different approaches work best in different regions of the country. I intend for the VA to experiment with different pricing structures to determine what works best. But I also intend that veterans get a break on prescription drug pricing.

Those who would benefit from this program are World War II and Korean War veterans who answered their country's call over 50 years ago. As they age, many desperately need relief from high drug prices. My purpose is not to disparage the drug companies; their discoveries have truly been marvels. But that is precious little comfort to a Medicare participant who, whatever the drug's overall utility might be, cannot afford both the drug and food or shelter or heat. Many such persons reside in the Commonwealth of Pennsylvania where, just last month, a genuine titan in the industrial history of the United States, Bethlehem Steel, ceased to exist. Many retired steelworkers who are also veterans--and who never needed VA because of company-paid

benefits--have lost their health insurance coverage and, with it, prescription drug benefits. These people need a break. This bill could provide it.

The premise of this legislation is simple: veteran access to VA market-driven discounts. Yet, the assistance it could provide might be profound. I do hope that Congress will find a way to provide prescription drug benefits to all seniors. But for now, I urge my colleagues to support this bill so that the problem might be solved--or at least reduced--for seniors who served. They deserve it, and we should do it.

I ask unanimous consent that the text of this bill be printed in the Record.

Mr. President, I have sought recognition to explain briefly the provisions of the ``Department of Veterans Affairs Long- Term Care and Personnel Authorities Enhancement Act of 2003,'' a bill that I have introduced today.

Title I of the bill would extend through calendar year 2008 authorities that now specify that the Department of Veterans Affairs, VA, will provide to veterans enrolled for VA medical care outpatient- based long-term care services, such as Adult Day Health Care, Home Health Aide assistance, Non-Institutional Respite Care, and Home-based Primary Care. These services provide alternatives to institutional care and, in many cases, they obviate the need for institutional care by allowing veterans to remain in their own homes with care-giving assistance provided by VA.

In addition, this bill would lower, from 70 percent to 50 percent, the threshold level of service-connected disability that would qualify a veteran for highest-priority for institutional care should he or she need it. VA currently provides highest-priority access to hospital and outpatient clinic-based care to veterans who have suffered a service- connected disability rated by VA as 50 percent disabling or higher. Highest-priority access to inpatient-based long-term care services, however, is only granted by law to veterans who are 70 percent or more disabled, unless such care is needed specifically to treat a less- disabling service-connected disability. When this provision of law was enacted in 1999, Congress set the threshold for priority access to nursing home care at 70 percent, rather than at 50 percent, due primarily to concerns that a lower threshold--which was actively considered--might cause VA to be faced with an unforeseen level of demand that could not be met. Since then, however, VA has reported that ``there was only a small increase in the numbers of veterans 70 percent service-connected or greater who were estimated to need nursing home care but who actually received that care from VA.'' In light of that, I see no compelling reason to continue distinguishing between nursing home care and all other types of care that are made available to 50 percent or higher service-connected veterans on a highest-priority basis. This bill would provide, in effect, that hospital care, outpatient clinic-based care, and nursing home care will equally be made available to all such enrolled veterans.

Title I of the bill would also make technical changes to VA authority to contract for nursing home and adult day health care services by allowing VA to enter into agreements with providers under standards similar to those allowed by Medicare. According to VA, these changes will allow a greater number of smaller community-based providers to contract with VA by reducing the regulatory burdens placed upon them as a condition to contracting eligibility.

Title II of the bill authorizes major construction for long-term care facilities in Beckley, WV and Lebanon, PA. Each of these states has a substantial elderly population and each is need of expansion to their VA long-term care programs.

Title III of the bill would change current law to allow VA to more easily hire and retain certain clinical staff members. Under current law, VA hires many clinical professionals, such as physicians and nurses, under streamlined authorities set forth in title 38 of U.S. Code. But other key clinical professionals, such as clinical social workers, psychologists, and pharmacists, may only be hired through the standard ``civil service'' authorities specified in Title 5, U.S. Code. Further, members of such professions may only be paid and promoted in accordance with the standard civil service General Schedule, GS, pay scale. The process of hiring staff under these procedures is arduous and lengthy, consuming three months or more and placing VA at great competitive disadvantage in securing the services of best qualified candidates. This bill would convert many of these positions into ``hybrid Title 38'' status and permit VA greatly increased hiring and promotion flexibility, and compensation at special, locally-based, pay scales. Such clinicians, however, would retain their standard civil service grievance, vacation, and discipline protections.

Title III of the bill also contains provisions to correct a long- standing inequity relating to retirement benefits for certain part-time VA nurses; to expand a successful pilot program allowing for contract- physician disability compensation medical examinations; and to afford certain wage-grade canteen workers an opportunity to compete favorably for VA employment.

I urge my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of this bill be printed in the Record.

Mr. President, I am pleased to provide for inclusion in the Congressional Record, the final cost estimate for S. 556, the Indian Health Care Improvement Act Amendments of 2003 prepared by the Congressional Budget Office.

This estimate had not been completed in time to be filed with the Senate Report No. 108-411 on S. 556 that was filed on November 17, 2004.

S. 556 would reauthorize the Indian Health Care Improvement Act which sets forth the statutory framework for the Indian health system and was first enacted in 1976. The act was reauthorized in 1992. The goal of the 1976 act, as amended, is to raise the health status of Indians to achieve parity with that of other Americans.

American Indians and Alaska Natives rank at or near the bottom of nearly every health indicator when compared to the general U.S. population. Health studies indicate disproportionately higher mortality rates of alcoholism, between 670-770%; tuberculosis, 650%; diabetes, between 318-420% accidental injuries, 280%; suicide, 190%; and homicide, 210%, than other populations.

With the basic goals of the Act unrealized, the need for reauthorization grows greater. S. 556 would have provided an additional set of improvements to the Indian health care system--most notably, for facility construction, access to care through Medicaid cost-sharing waivers, and long-term planning through the establishment of a bipartisan commission to study the Indian health care system.

The reauthorization bill has been a work in progress since the 106th Congress when I introduced a bill to reauthorize the act. I have introduced a bill to reauthorize the act in every subsequent Congress. Over the course of the past three Congresses, the Committee has held eight hearings on the reauthorization with four hearings held in the 108th Congress alone.

I was particularly pleased to have Secretary Thompson testify before the Committee on July 21, 2004, regarding the administration's views on the proposed legislation. At this hearing, the Secretary expressed enthusiastic support of the proposed legislation and his desire to see it enacted this year.

This show of support was particularly important because we had been anticipating the administration's view for several months and were fast coming to the end of the 108th Congress.

At the hearing, Secretary Thompson committed his staff to immediately begin meeting with the bill committee staff to work on the bill. Much effort to advance this legislation had already been put forth by committee staff, tribal leaders and the Indian health community. With department staff working alongside committee staff, we anticipated swift passage of the bill.

However, swift passage did not happen and I am disappointed that the reauthorization did not get enacted this year. The committee staff worked diligently along with the administration and Indian tribal leaders until the very end of this Congress to finalize the bill for passage.

I believe that, in addition to the changes made prior to July, 2004, the committee was quite responsive to the department's concerns and suggestions in revising the bill.

In particular, the provisions for Medicare and health professional shortage areas were not included in the reported bill. The committee modified the establishment of creative funding programs such as the revolving loan funds and opted for studies for this type of funding mechanism instead--at the request of the administration.

There was substantial discussions at the eleventh hour regarding provisions governing urban Indians and non-eligible individuals. I believe the Federal responsibility to provide health care applies to individual Indians living in the urban centers, especially when it is remembered that Indians reside in urban areas primarily as a result of the Federal policy of relocation during the first half of the 20th Century.

In addition, in the course of negotiations, we were made aware of concerns dealing with the Veteran's Administration drug supply schedules and services to non-eligible individuals. A limited scope of services to certain non-eligibles has been a part of the Indian Health Care Improvement Act for years. Nevertheless, the Department and some tribes have different views of the scope of services.

In any event, the matter is being addressed in the courts. Any resolution we could offer would be better served by reviewing the decision of the courts and then thoroughly examining the matter instead of fixing what has not been determined by the courts to be a problem.

Likewise, I am concerned with what may be a desire to rollback the gains tribes have made in implementing the Indian Health Care Improvement Act and the Indian Self-Determination and Education Assistance Act.

The underlying policies and plain language of the both statutes should not be ignored and the commitment to self-governance needs to be respected when enacting any Indian legislation.

I certainly appreciated President Bush's Memorandum to Department Heads on ``The Government-to-Government Relationship with Tribal Governments'' dated September 30, 2004, in which he reiterated his support for the government-to-government relationship and tribal sovereignty. President Bush continued the long-standing policy of self- governance begun in 1970 by President Nixon.

The committee has continually upheld those principles and fought for expansions in self-governance, even over the objections of previous Administrations. I believe that retreating from those principles in enacting any Indian statutes would be inconsistent with the President's commitment as well as the will of Congress.

What I am particularly disappointed in having to set aside this year is the State Children's Health Insurance Program, SCHIP, improvements that we had worked on for several months. In mid-May, 2004, we were informed that the department lacked information regarding how many Indian children qualified for the program and how many Indian children were actually being served, despite clear statutory language mandating services to Indian children. Yet again, we find the most needy must continue to suffer until there is a serious effort to address these disparities.

There were many other Senators and committees which provided substantial assistance in seeking passage of this bill. Without the commitment and support of Majority Leader Bill Frist, we certainly could not have gotten as far as we did.

Senator Frist was constructively engaged very early on this bill and continued his support throughout the negotiations with the Administration.

Senator Stevens was also very supportive and committed to passage of this bill. His staff worked diligently also with the committee staff until the very end of the session.

Likewise, Senator Grassley also committed his staff in assisting the committee staff in developing significant improvements in the Medicaid provisions.

I cannot forget the work of Senator Hatch on this matter as well. Senator Hatch was instrumental in developing the Indian provisions in the SCHIP statute and assisted in seeking resolutions for many of the problems we found in SCHIP implementation.

I am leaving the Senate knowing that there are many issues left unresolved but I have every confidence that the Committee under the leadership of Senator McCain will continue to protect tribal sovereignty and uphold principles of tribal self-governance.

I do look forward to seeing a vigorous discussion on the reauthorization next year and believe that coordinated efforts ensure its passage.

I ask that the CBO cost estimate be printed in the Record.

S. 556--Indian Health Care Improvement Act Amendments of 2004

Summary: S. 556 would authorize the appropriation of such

sums as necessary through 2015 for the Indian Health Care

Improvement Act, the primary authorizing legislation for the

Indian Health Service (IHS). The bill also contains specific

authorizations for loans and loan guarantees for urban Indian

organizations and a commission on Indian health care. In

addition, the bill also would affect direct spending,

primarily through provisions that would make it easier for

IHS to enter into capital leases and make changes to the

Medicaid program.

CBO estimates that implementing S. 556 would cost $2.4

billion in 2005 and $31.8 billion over the 2005-2014 period,

assuming appropriation of the necessary amounts. We also

estimate that enacting the bill would increase direct

spending by $8 million in 2005, by $69 million over the 2005-

2009 period, and by $238 million over the 2005-2014 period.

S. 556 would preempt state licensing laws in certain cases,

and this preemption would be an intergovernmental mandate as

defined in the Unfunded Mandates Reform Act (UMRA); however,

CBO estimates that the costs of that mandate would be small

and would not approach the threshold established in UMRA ($60

million in 2004, adjusted annually for inflation). Other

provisions of the bill would establish new or expand existing

programs for Indian health care. It also would place new

requirements on Medicaid and the State Children's Health

Insurance Program (SCHIP) that would result in additional

spending of about $35 million over the 2005-2009 period. This

bill contains no private-sector mandates as defined in UMRA.

Estimated cost to the Federal Government: The estimated

budgetary impact of S. 556 is shown in Table 1. The costs of

this legislation fall within budget function 550 (health).

Mr. President, today I am introducing a bill to bring the United States into compliance with its obligations under the World Trade Organization.

The basic thrust of the bill is simple--it repeals section 801 of the Revenue Act of 1916 which the WTO Appellate Body found to be inconsistent with our responsibilities under Article VI of the GATT 1994 and the WTO Antidumping Agreement. Repealing section 801 will therefore bring the United States into conformity with its WTO obligations.

Section 801, which has been referred to as the Antidumping Act of 1916, allows private parties to sue importers of dumped imports in U.S. district courts, and also establishes criminal liability for importing dumped goods. While the provision is seldom used, there are several recent court cases pending in the United States where litigants have sued under the Antidumping Act of 1916.

I am introducing this legislation because I believe it is important that the United States comply with its WTO obligations. While we may not agree with each and every decision that comes out of the WTO, we should not pick and choose which decisions we will comply with. The bottom line is that the United States benefits greatly from a rules- based world trading system. We have had considerable success in bringing down foreign import barriers, and this has resulted in increased trade, economic growth, and more jobs right here in the United States. When we comply with adverse decisions we only strengthen our position in other cases where we challenge the impermissible import restraints of our trading partners, such as the de facto biotechnology moratorium adopted by the European Union, which continues to hurt farmers in Iowa and is now under challenge before the WTO. I want other countries to comply when we win, so I think it is important to comply when we lose.

I would also like to point out an important aspect of the bill I am introducing. The bill brings us into compliance with our WTO obligations, but it does not apply retroactively. I think retroactive application of repeal would be wrong in this case for a number of reasons.

First, the U.S. Supreme Court has held that under the constitutional due process standard, retroactive application of economic legislation is acceptable only where it is justified by a rational legislative purpose. To my knowledge, no one has yet articulated any reason, let alone a rational legislative purpose, for depriving litigants in U.S. courts of the opportunity for final adjudication of their disputes in this case. In fact, the Appellate Body Ruling itself does not call for a retroactive repeal of section 801 in order for the United States to conform to its WTO obligations. It seems to me that no rational legislative purpose is served by retroactive repeal of section 801 when the Appellate Body Report does not ask for retroactive repeal and the Administration has not explained why retroactive repeal is necessary.

The Supreme Court has also held that the justification for prospective application of legislation may not suffice for retroactive application of the same legislation. The justification for repeal of section 801 is to conform to our WTO obligations; again, if WTO compliance does not call for retroactive repeal, then the justification for repealing section 801 should not extend to a retroactive repeal of this provision.

Second, the administration and Congress have consistently taken the position that retroactive repeal is not necessary to ensure compliance with our WTO obligations in all cases, particularly in cases dealing with U.S. trade remedy laws. The Joint Report of the Committee of Finance, Committee on Agriculture, Nutrition, and Forestry, Committee on Government Affairs of the U.S. Senate which accompanied the legislation implementing the Uruguay Round Agreements Act explicitly noted that compliance with WTO panels in trade remedy cases applied prospectively only. The Joint Report continued that prospective application ``is consistent with the general principle in the GATT, and in the future WTO, that panel decisions do not have retroactive effect.''

This principle is fully consistent with the text of the WTO agreement itself. Article 19.1 of the Dispute Settlement Understanding states only that ``{w here a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that Agreement. In addition to its recommendations, the panel or Appellate Body may suggest ways in which the Member concerned could implement the recommendations.'' Thus, the text of the WTO calls only for ``bringing the measure into conformity'' and not retroactive application of an Appellate Body decision.

To my knowledge, this is the position which has consistently been taken by the U.S. Government and the WTO Appellate Body. In fact, with the exception of one aberrant decision by a panel in the case of Australian Automotive Leather, WTO panels and the Appellate Body have continued to adhere to the general principle that retroactive compliance measures are inappropriate.

The panel ruling in Australian Automotive Leather is instructive. The WTO Dispute Settlement Body adopted a panel report that recommended the Australian recipient of a subsidy pay back the entire amount of the $30 million Australian dollar subsidy it had received. This recommendation went far beyond what the United States asked for. The United States sought only the return of the prospective value of the subsidy that the Australian automotive leather company had received. The United States argued that repayment of the entire subsidy was inappropriate and ultimately settled the dispute with Australia in a deal that required the automotive leather company to pay back $7.2 million Australian dollars to the Government of Australia, which reflected the prospective value of the subsidy. Thus, both U.S. law and U.S. trade policy conform to the general principle that compliance measures should be prospective in nature.

Finally, I believe that as a general matter, attempts at retroactive compliance with WTO rulings can make for bad trade policy. The intent of the rules-based trading system established under the WTO is to bring Members into compliance so that going forward international trade can be conducted on a level playing field. There is just no telling where efforts at retroactive compliance may lead. While in this instance the retroactive repeal of section 801 may seem clear-cut to some, it could set a dangerous precedent for future cases. Imagine if the WTO Appellate Body required or the U.S. Government advocated for retroactive application of a measure repealing the Extraterritorial Income Act/Foreign Sales Corporation tax regime. The result would be ludicrous.

Rather than foster the establishment of a level playing field, efforts at retroactive compliance may well distort markets to an extent even greater than the underlying measure that was found to be WTO inconsistent. We need to carefully consider whether retroactive repeal of a statutory provision is appropriate. I believe that considerations of judicial precedent, legislative intent, established practice under the GATT and the WTO, as well as good trade policy, all mitigate against the retroactive repeal of section 801.

I call upon my colleagues to support this bill repealing section 801. Passing the bill will bring us into compliance with our WTO obligations, demonstrate our continued commitment to the rules-based trading system, and strengthen our position in future cases where we prove successful in challenging impermissible import restraints erected by our trading partners.

I ask unanimous consent that the text of the bill be printed in the Record.

There being no objection the bill was ordered to be printed in the Record, as follows:

Mr. President, I rise to introduce the ``Women's Small Business Programs Improvement Act of 2003'' in recognition of the critical potential that women entrepreneurs hold for the Nation's economic welfare. I am pleased to be joined by Senators Bond and Burns in offering this important legislation.

Today, women own nearly a third of the Nation's small businesses-- totaling nearly 7 million women-owned enterprises that contribute approximately $1.2 trillion to be economy annually. That number, however, does not include jointly owned businesses in which women play a major role but hold less than fifty percent of the ownership rights. So, the actual number of women with significant roles in business goes well beyond 7 million--and they are growing rapidly.

These figures reflect the successes that women entrepreneurs are having despite facing the same challenges for the past twenty years-- access to business assistance, access to capital, and access to Federal Government contract opportunities. The ``glass ceiling'' in corporate America that led many women to start a small business has been transformed into a another obstacle--``a glass doorway''--between women who want to start and grow businesses and the lending and Federal contract markets these women entrepreneurs seek to enter. Overcoming these obstacles requires that women are provided the business assistance tools they need, which we can ensure through the programs and services established within the Small Business Administration, SBA, specifically for women.

As the new Chair of the Committee on Small Business, I have been carefully examining the SBA's programs with a particular focus on the agency's initiatives that are intended to foster women-owned businesses. During the past year, witnesses and participants of the Committee's hearings and roundtables clearly identified the concerns of women business owners: the lack of business assistance programs for existing small businesses; scarcity of financial resources for start-up or expansion; limited opportunities for Federal Government contracts; and the need for specific research on women's business ownership.

In addition, we heard concerns from the Women's Business Centers and their advocates about the Women's Business Centers Sustainability Grants Program, which sunsets in 2003. These centers have been extraordinarily successful in providing assistance to women in all walks of life--those who once received public assistance but now operate businesses and create jobs; women transitioning from employee to small business employer; and establish women-business owners who create and manufacture products for sale at home and abroad. The Centers nurture women entrepreneurs through business and financial planning and help with critical issues like securing funding for startup and expansion. Despite these successes, however, funding questions have long plagued the program.

Adding to the information gained from its official activities, the Committee staff also conducted a review of all SBA funded and sponsored activities for women entrepreneurs, held discussions with women business leaders, and obtained information in the process of preparing for the reauthorization of SBA Non-Credit Programs.

Our findings support specific changes to ensure that the SBA will be more accountable in its delivery of programs and services through the Office of Women's Business Ownership. Specifically, based on the need and the impressive record of the Women's Business Centers, there is strong support for making the program permanent, provided that the SBA streamlines the grants administration processes. Improvements in the focus and operations for the National Women's Business Council and the Women's Interagency Committee on Women's Business Enterprise would also enhance their missions and ability to serve women entrepreneurs.

The bill I introduce today is designed to address these issues and improve the programs and services that the SBA delivers across the nation for women business owners through the Office of Women's Business Ownership, the Women's Business Centers Program, the National Women's Business Council, and the Interagency Committee on Women's Business Enterprise. The key elements of the bill's improvements will provide direction, consolidation and integration of existing programs that have been previously created to offer opportunities for women through their entrepreneurial endeavors.

The ``Women's Small Business Programs Improvement Act of 2003'' would improve the entrepreneurial environment for women seeking assistance and opportunity through Federal Government sponsored programs. A key to the success of this bill is the integration of all internal and external SBA programs and partnerships. The provisions in this bill are timely and in response to the many concerns of women business owners that I have received from my constituents in Maine and from across the country through the Small Business Committee.

Additionally, the bill makes the Women's Business Center a permanent program for existing eligible Centers so that women can depend on the experienced services of small business long-term counseling and small business education and training. The Centers have proven to be a great value the communities they serve so we must ensure that their programs and services continue to be available.

The ``Women's Small Business Programs Improvement Act of 2003'' ensure that women entrepreneurs at all stages of business ownership get the assistance they need so that success

through business growth is more easily obtained. And it achieves that goal, not by establish costly new initiatives, but by building on successful establish programs within the SBA and improving their delivery for the benefit of current and future women entrepreneurs.

As the Small Business Committee continues its work on legislation to reauthorize the SBA, we will be addressing all of the agency's programs. I look forward to working with my colleagues in the Senate to ensure that the provisions of this bill are included so the growth of women owned business in America can reach its full potential.

I ask unanimous consent that the text of the bill and a section-by- section analysis be printed into the Record.