HIPAA Recreational Injury Technical Correction Act

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

Mr. President, today I am introducing the Wind Cave National Park Boundary Revision Act of 2003. The Senate unanimously approved this legislation late last fall, but it was not considered by the House of Representatives before Congress adjourned for the year. I hope that my colleagues will again support this effort and that we can see this bill signed into law.

Wind Cave National Park, located in southwestern South Dakota, is one of the Park System's precious natural treasures and one of the Nation's first national parks. The cave itself, after which the park is named, is one of the world's oldest, longest and most complex cave systems, with more than 103 miles of mapped tunnels. The cave is well known for its exceptional display of boxwork, a rare, honeycomb-shaped formation that protrudes from the cave's ceilings and walls. While the cave is the focal point of the park, the land above the cave is equally impressive, with 28,000 acres of rolling meadows, majestic forests, creeks, and streams. As one of the few remaining mixed-grass prairie ecostytems in the country, the park is home to abundant wildlife, such as bison, deer, elk and birds, and is a National Game Preserve.

The Wind Cave National Park Boundary Revision Act will help expand the park by approximately 20 percent in the southern ``keyhole'' region. This land is currently owned by a ranching family that wants to see it protected from development and preserved for future generations. The land is a natural extension of the park, and boasts the mixed-grass prairie and ponderosa pine forests found in the rest of the park, including a dramatic river canyon. The addition of this land will enhance recreation for hikers who come for the solitude of the park's back country. It will also protect archaeological sites, such as a buffalo jump, over which early native Americans once drove the bison they hunted, and improve fire management.

This plan to expand the park has strong, but not universal, support in the surrounding community. The community's views were expressed during a recent 60-day public comment period on the proposal. Most South Dakotans recognize the value in expanding the park, not only to encourage additional tourism in the Black Hills, but to permanently protect these extraordinary lands for future generations of Americans to enjoy. Understandably, however, some are legitimately concerned about the potential loss of hunting opportunities and local tax revenue.

Governor Janklow has expressed his conditional support for the park expansion, stating that there must be no reduction in the amount of lands with public access that can currently be hunted, that there must be no loss of tax revenue to the county from the expansion, and that chronic wasting disease issue must be dealt with effectively. These are reasonable conditions that should be met as this process moves forward.

The legislation I am introducing today protects hunting opportunities for sportsmen by excluding 880 acres of School and Public Lands property from the expansion. In addition, Wind Cave National Park and the Trust for Public Lands are working with interested parties to find a way to offset the loss of local county tax revenues. Finally, I understand that the South Dakota Game, Fish, and Parks Department has reached an agreement with Wind Cave officials to expand research into chronic wasting disease, which will benefit wildlife populations nationwide. I am satisfied that the legitimate concerns about the potential expansion have been effectively addressed and today am moving forward to begin the legislative phase of this process.

In conclusion, Wind Cave National Park has been a valued American treasure for nearly 100 years. We have an opportunity with this legislation to expand the park and enhance its value to the public so that visitors will enjoy it even more during the next 100 years. It is my hope that my colleagues will again support this expansion of the park and pass this legislation in the near future.

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

Mr. President, today I am introducing the Blunt Reservoir and Pierre Canal Land Conveyance Act of 2003. This proposal is the culmination of more than 4 years of discussion with local landowners, the South Dakota Water Congress, the U.S. Bureau of Reclamation, local legislators, representatives of South Dakota sportsmen groups and affected citizens. It lays out a plan to convey certain parcels of land acquired for the Blunt Reservoir and Pierre Canal features of the Oahe Irrigation Project in South Dakota to the Commission of School and Public Lands of the State of South Dakota for the purpose of mitigating lost wildlife habitat, and provides the option to preferential leaseholders to purchase their original parcels from the Commission.

The bill I'm introducing today is the result of consultations with the Energy and Natural Resources Committee when it considered the bill last July. The committee incorporated changes to the legislation that will ensure a smooth transition of land from federal to private ownership, increase county tax revenues, as well as provide the tools and future funding necessary to help the state of South Dakota improve wildlife habitat and public hunting opportunities. The Senate unanimously approved this legislation late last fall, but it was not considered by the House of Representatives before Congress adjourned for the year. I hope that my colleagues will once again support this effort, and that we can see this bill signed into law.

To more fully understand the issues addressed by the legislation, it is necessary to review some of the history related to the Oahe Unit of the Missouri River Basin project in South Dakota.

The Oahe Unit was originally approved part of the overall plan for water development in the Missouri River Basin that was incorporated in the Flood Control Act of 1944. Subsequently, Public Law 90-453 authorized construction and operation of the initial stage of this unit. The purposes of the Oahe Unit, as authorized, were to provide for the immigration of 190,000 acres of farmland, conserve and enhance fish and wildlife habitat, promote recreation and meet other important goals.

The project came to be known as the Oahe Irrigation Project. The principal features of the initial stage of the project included the Oahe pumping plant, located near Oahe Dam, to pump water from the Oahe Reservoir; a system of main canals, including the Pierre Canal, running east from the Oahe Reservoir; and, the establishment of regulating reservoirs, including the Blunt Dam and Reservoir, located approximately 35 miles east Pierre, SD.

Under the authorizing legislation, 42,155 acres were to be acquired by the Federal Government in order to construct and operate the Blunt Reservoir feature of the Oahe Irrigation Project. Land acquisition for the proposed Blunt Reservoir feature began in 1972 and continued through 1977. A total of 17,878 acres usually were acquired from willing sellers.

The first land for the Pierre Canal feature was purchased in July 1975 and included the 1.3 miles of Reach 1B. An additional 21-mile reach was acquired from 1976 through 1977, also from willing sellers.

Organized opposition to the Oahe Irrigation Project surfaced in 1973 and continued to build until a series of public meetings were held in 1977 to determine if the project should continue. In late 1977, the Oahe project was made a part of Presidents Carter's Federal Water Project review process.

The Oahe project construction was then halted on September 30, 1977, when Congress did not include funding in the fiscal year 1978 appropriations. Thus, all major construction contract activities ceased, and land acquisition was halted.

The Oahe Project remained an authorized water project with a bleak future and minimal chances of being completed as authorized. Consequently, the Department of Interior, through the Bureau of Reclamation, gave those persons who willingly had sold their lands to the project, and their descendants, the right to lease those lands and use them as they had in the past until they were needed by the Federal Government for project purposes.

During the period from 1978 until the present, the Bureau of Reclamation has administered these lands on a preferential lease basis for those original landowners or their descendants, and on a non- preferential basis for lands under lease to persons who were not preferential leaseholders. Currently, the Bureau of Reclamation administers 12,978 acres as preferential leases and 4,304 acres as non- preferential leases in the Blunt Reservoir.

As I noted previously, the Oahe Irrigation Project is related directly to the overall project purposes of the Pick-Sloan Missouri Basin program authorized under the Flood Control Act of 1944. Under this program, the U.S. Army Corps of Engineers constructed four major dams across the Missouri River in South Dakota. The two largest reservoirs formed by these dams, Oahe Reservoir and Sharpe Reservoir, cause the loss of approximately 221,000 acres of fertile, wooded bottomland that constituted some of the most productive, unique and irreplaceable wildlife habitat in the State of South Dakota. This included habitat for both game and non-game species, including several species now listed as threatened or endangered. Meriwether Lewis, while traveling up the Missouri River in 1804 on his famous expedition, wrote in his diary, ``Song birds, game species and furbearing animals abound here in numbers like none of the party has ever seen. The bottomlands and cottonwood trees provide a shelter and food for a great variety of species, all laying their claim to the river bottom.''

Under the provisions of the Wildlife Coordination Act of 1958, the State of South Dakota has developed a plan to mitigate a part of this lost wildlife habitat as authorized by Section 602 of Title VI of Public Law 105-277, October 21, 1998, known as the Cheyenne River Sioux Tribe, Lower Brule Sioux Tribe,

and State of South Dakota Terrestrial Wildlife Habitat Restoration Act. The State's habitat mitigation plan has received the necessary approval and interim funding authorizations under Sections 602 and 609 of Title

Mr. President, I rise today to introduce the Partial Birth Abortion Ban Act of 2003. I am joined in introducing this bill by 38 of my colleagues, over a third of the Senate. This bill is written to prohibit one particularly gruesome, inhumane, and medically unaccepted late term abortion method, except when the procedure is necessary to save the life of the mother. Partial birth abortion is a procedure that is performed over a 3-day period in the second or third trimester of pregnancy. In this particular abortion technique, the physician delivers all but the head of a living baby through the birth canal, stab the baby in the base of the skull with curved scissors, and the uses a suction catheter to remove the child's brain. This procedure kills the baby. After collapsing the skull, the doctor completes the procedure. According to Ron Fitzsimmons of the National Coalition of Abortion Providers, this procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along in the vast majority of cases.

The American public finds this procedure repugnant. A recent CNN/USA Today/Gallup poll indicated that 70 percent of Americans favored laws making it illegal to perform partial birth abortions, except when necessary to save the life of the mother. This procedure is also unrecognized by the mainstream medical community as a valid abortion procedure. The American Medical Association has said this procedure is ``not good medicine,'' is ``ethically wrong,'' and ``not an accepted `medical practice'.''

As far back as the 104th Congress, the Senate and the House of Representatives both acted to ban this procedure. Unfortunately, President Clinton vetoed that bill. The House voted to override that veto, but the Senate fell short. Likewise, during the 105th Congress, the House and Senate acted to pass a bill banning this procedure. Again, President Clinton vetoed that bill banning an abortion procedure that occurs as the child is inches from being completely outside the mother. The House subsequently overrode his veto. The Senate failed to override by just three votes. In the 106th Congress as well, the Senate and the House both acted to overwhelmingly pass legislation banning this procedure.

A little over two years ago, the U.S. Supreme Court, in its Stenberg versus Carhart decision, struck down a similar, but not identical, law in the state of Nebraska that banned partial birth abortions. The Stenberg majority opinion voiced concern that the description of the abortion procedure as described in the Nebraska law was vague and might apply to other types of late-term abortions. A second concern was that the law did not provide an exception for those instances when the banned procedure was judged necessary to preserve the health of the mother.

Last year, during the 107th Congress, Representative Steve Chabot of Ohio introduced a bill responding to those concerns. This bill passed the House of Representatives by a vote of 274-151. Unfortunately, the Senate was kept from considering this bill.

Today, I introduced a similar bill banning the horrific procedure of partial birth abortion, except when necessary to save the life of a mother. To respond to the Supreme Court's concerns in Stenberg, this bill provides a very precise definition of the partial birth abortion procedure to make it very clear what procedure is meant.

Second, the Court based its decision in Stenberg on the federal district court's factual findings regarding the safety of the partial birth abortion procedure. These findings were highly disputed and inconsistent with the overwhelming weight of authority on the issue-- including evidence presented at the Stenberg trial, other trials challenging partial birth abortion bans, and at the extensive Congressional hearings that have been held over the years. Despite the lack of evidence supporting the district court's findings, the Supreme Court was required to accept them because of the ``clearly erroneous'' standard that is applied to lower court factual findings. However, under well-settled Supreme Court jurisprudence, the Congress is not required to accept these ``factual findings,'' but is entitled to reach its own factual findings--findings that the Supreme Court accords great deference--and may enact legislation based on these findings. The bill I introduce today includes a series of findings from congressional hearings held over the years and from expert testimony that demonstrates that a partial birth abortion is never necessary to preserve the health of the mother, poses significant health risks to the woman, and is outside the standard of medical care.

Over the years, during the consideration of this ban, proponents of partial birth abortion have supported their arguments for this procedure with myth and misinformation. When the time comes for the full Senate to consider this bill, I look forward to again countering those untruths with the truth, and I ask my colleagues to vote to ban partial birth abortion.

It is long past time for the U.S. Senate to again pass a bill banning partial birth abortion. I am pleased that the Senate leadership has seen this as a legislative priority for the 108th Congress. The House and Senate have overwhelming supported such a ban time and time again. President Bush has asked us to send him a bill to end the practice of partial birth abortion. The American people clearly believe this is a procedure that should be prohibited. I appreciate the support of so many of my colleagues who have joined me in introducing this bill. And I am hopeful--very hopeful--that the 108th Congress will not end before this bill becomes law, before children in the very process of being born are protected by the laws of this great nation of ours.

Mr. President, I am pleased to join with my colleague from Wisconsin, Senator Feingold, in introducing legislation to prohibit health insurers from denying benefits to plan participants if they are injured while engaging in legal recreational activities like skiing or horseback riding.

Among the many rules that were issued at the end of the Clinton Administration was one that was intended to ensure non-discrimination in health coverage in the group market. This rule was issued jointly on January 8, 2001, by the Department of Labor, the Internal Revenue Service and the Health Care Financing Administration--now the Centers for Medicare and Medicaid Services--in accordance with the Health Insurance Portability and Accountability Act, HIPAA, of 1996.

While I was pleased that the rule prohibits health plans and issuers from denying coverage to individuals who engage in certain types of recreational activities, such as skiing, horseback riding, snowmobiling or motorcycling, I am extremely concerned that it would allow insurers to deny health benefits for an otherwise covered injury that results from participation in these activities.

The rule states that: ``While a person cannot be excluded from a plan for engaging in certain recreational activities, benefits for a particular injury can, in some cases, be excluded based on the source of the injury.'' A plan could, for example, include a general exclusion for injuries sustained while doing a specified list of recreational activities, even though treatment for those injuries, a broken arm for instance, would have been covered under the plan if the individual had tripped and fallen.

Because of this loophole, an individual who was injured while skiing or running could be denied health care coverage, while someone who is injured while drinking and driving a car would be protected.

This clearly is contrary to Congressional intent. One of the purposes of HIPAA was to prohibit plans and issuers from establishing eligibility rules for health coverage based on certain health-related factors, including evidence of insurability. To underscore that point, the conference report language stated that ``the inclusion of evidence of insurability in the definition of health status is intended to ensure, among other things, that individuals are not excluded from health care coverage due to their participation in activities such as motorcycling, snowmobiling, all-terrain vehicle riding, horseback riding, skiing and other similar activities.'' The conference report also states that ``this provision is meant to prohibit insurers or employers from excluding employees in a group from coverage or charging them higher premiums based on their health status and other related factors that could lead to higher health costs.''

Millions of Americans participate in these legal and common recreational activities which, if practiced with appropriate precautions, do not significantly increase the likelihood of serious injury. Moreover, in enacting HIPAA, Congress simply did not intend that people would be allowed to purchase health insurance only to find out, after the fact, that they have no coverage for an injury resulting from a common recreational activity. If this rule is allowed to stand, millions of Americans will be forced to forgo recreational activities that they currently enjoy lest they have an accident and find out that they are not covered for needed care resulting from that accident.

The legislation that we are introducing today will clarify that individuals participating in activities routinely enjoyed by millions of Americans cannot be denied access to health care coverage or health benefits as a result of their activities, and I urge all of our colleagues to join us as cosponsors.

Mr. President, I am pleased to join with my colleague from Wisconsin, Senator Feingold, in introducing legislation to prohibit health insurers from denying benefits to plan participants if they are injured while engaging in legal recreational activities like skiing or horseback riding.

Among the many rules that were issued at the end of the Clinton Administration was one that was intended to ensure non-discrimination in health coverage in the group market. This rule was issued jointly on January 8, 2001, by the Department of Labor, the Internal Revenue Service and the Health Care Financing Administration--now the Centers for Medicare and Medicaid Services--in accordance with the Health Insurance Portability and Accountability Act, HIPAA, of 1996.

While I was pleased that the rule prohibits health plans and issuers from denying coverage to individuals who engage in certain types of recreational activities, such as skiing, horseback riding, snowmobiling or motorcycling, I am extremely concerned that it would allow insurers to deny health benefits for an otherwise covered injury that results from participation in these activities.

The rule states that: ``While a person cannot be excluded from a plan for engaging in certain recreational activities, benefits for a particular injury can, in some cases, be excluded based on the source of the injury.'' A plan could, for example, include a general exclusion for injuries sustained while doing a specified list of recreational activities, even though treatment for those injuries, a broken arm for instance, would have been covered under the plan if the individual had tripped and fallen.

Because of this loophole, an individual who was injured while skiing or running could be denied health care coverage, while someone who is injured while drinking and driving a car would be protected.

This clearly is contrary to Congressional intent. One of the purposes of HIPAA was to prohibit plans and issuers from establishing eligibility rules for health coverage based on certain health-related factors, including evidence of insurability. To underscore that point, the conference report language stated that ``the inclusion of evidence of insurability in the definition of health status is intended to ensure, among other things, that individuals are not excluded from health care coverage due to their participation in activities such as motorcycling, snowmobiling, all-terrain vehicle riding, horseback riding, skiing and other similar activities.'' The conference report also states that ``this provision is meant to prohibit insurers or employers from excluding employees in a group from coverage or charging them higher premiums based on their health status and other related factors that could lead to higher health costs.''

Millions of Americans participate in these legal and common recreational activities which, if practiced with appropriate precautions, do not significantly increase the likelihood of serious injury. Moreover, in enacting HIPAA, Congress simply did not intend that people would be allowed to purchase health insurance only to find out, after the fact, that they have no coverage for an injury resulting from a common recreational activity. If this rule is allowed to stand, millions of Americans will be forced to forgo recreational activities that they currently enjoy lest they have an accident and find out that they are not covered for needed care resulting from that accident.

The legislation that we are introducing today will clarify that individuals participating in activities routinely enjoyed by millions of Americans cannot be denied access to health care coverage or health benefits as a result of their activities, and I urge all of our colleagues to join us as cosponsors.

Mr. President, I rise today to introduce--along with my colleagues Senators Smith, Murray and Feinstein--the Renewable Energy Production Incentive, REPI, Reform Act.

This bill reauthorizes the REPI program, which was created as part of the 1992 National Energy Policy Act to foster greater renewable energy production and level the playing field for public power utilities, which do not qualify for renewable energy tax credits. The REPI program provides direct payments to publicly- and cooperatively-owned utilities at a rate of 1.5 cents/kWh, indexed for inflation, for electricity generated from wind, solar, certain geothermal and biomass sources.

As some of my colleagues may recall, the Senator from Oregon and I introduced a very similar bill last session, which was subsequently included in the energy bill that passed the Senate last spring. While conferees were ultimately unable to reach agreement on the broader energy bill, reauthorizing the REPI program must remain a priority as we again contemplate energy legislation during the 108th Congress.

Since this program's creation, REPI has become an important incentive for locally-owned, not-for-profit utilities to become involved in the effort to diversify our Nation's generation sources to include clean, sustainable sources of power. Since 1995, more than 36 projects in 17 States have received more than $21 million in REPI incentives and produced more than 3,000 megawatt-hours of electricity per year.

In my home State of Washington, where 55 percent of the overall energy load is served by public power, the REPI program had already helped support wood-waste and landfill gas projects, and promises to help locally-owned utilities tap into our tremendous wind resources. Already, the hills south of Kennewick, WA are home to the Nine Canyon Wind project--a 48-megawatt wind farm consisting of 37 turbines-- producing enough energy to serve 12,000 households. This bill will provide continued support for these innovative projects.

The Renewable Energy Production Incentive Reform Act that my colleagues and I have introduced today will do three simple things. It will: reauthorize the program for another 10 years; direct the Department of Energy, which runs the program, to allocate funds on a more equitable basis in years in which the demand for REPI dollars far outpaces available appropriations; and clarifies that landfill gas projects and tribal governments are eligible to receive REPI funding.

One of the key challenges in developing a 21st century energy policy for this Nation is putting in place the proper incentives to add new and sustainable sources of power to the grid. My colleagues and I from the Northwest have learned this lesson well over the past few years, during which prolonged droughts have stretched to the limit the hydroelectric system that has--since the 1930s--formed the basis for our region's economic growth. The new clean energy projects the REPI program supports help relieve some of the stress on our hydro system and position my state and region for the next cycle of innovation in energy technology.

I look forward to working with my cosponsors during this session to ensure this small but important program is reauthorized--whether as stand-alone legislation or part of a broader energy bill. I believe we as a Nation now stand on the cusp of a revolution in clean energy technology. The Renewable Energy Production Incentive program is key in helping public power systems participate, as we work to put in place an energy policy that will meet the needs of our 21st Century economy.