Liberty Bill Act

Mr. President, I am pleased to be introducing the Indian Medicaid Health Act of 2005 with Senators Baucus, Dorgan, Murray, Cantwell and Johnson.

This legislation addresses a number of technical but critically important provisions within the Medicaid Program that devote special attention to Native Americans, the Indian Health Service, IHS, tribal health organizations, and urban Indian health organizations. These provisions would:

No. 1, codify protections that American Indians and Alaska Natives have obtained over the years in the Medicaid program, such as the requirement that states consult with tribes and tribal health organizations prior to seeking a federal Medicaid waiver;

No. 2, clarify that American Indians and Alaska Natives are not subject to additional cost sharing or benefit limitations within Medicaid that will result in nothing more than a cost-shift from the Medicaid program to IHS or tribal health providers;

No. 3, codify critically important provisions that provide protections against states or the federal government taking Indian property or tribal lands in exchange for medical services delivered through Medicaid; and,

No. 4, eliminate certain inequities such as the lack of 100 percent federal matching payments within Medicaid for care delivered to Native Americans at urban Indian health clinics.

American Indians and Alaska Natives continue to suffer enormous disparities in the health and medical care they receive. It should not come as a surprise to anyone at the Federal level that health care funding for American Indians and Alaska Natives, AI/AN, is well below what it should be and, consequently, Native Americans received rationed health care services that deny them access to the quality and medically necessary health care services.

However, year after year, budget and appropriations amendments are offered to more fully fund health care for Native Americans but both the administration and Congress routinely fail to provide adequate funding. The result is a continued and growing divide between the health of American Indians and Alaska Natives compared to that of the general population.

The U.S. Commission on Civil Rights, USCCR, held meetings in Albuquerque, NM, and visited the Gallup Indian Medical Center in 2003 as part of a factfinding mission to review the current disparities in the health status and outcomes of Native Americans. What they found served as a basis for the release of their report in September 2004 entitled Broken Promises: Evaluating the Native American Health Care System. The opening line in that report reads, ``Today, in Indian Country, health-related problems and the lack of adequate health care are the enemy.''

This is in large part due to the fact that the IHS operates on just 57 percent of the budget it needs and had more than $3 billion in unmet needs in 2003. USCCR cites estimates by the Department of Health and Human Services, HHS, that per capita health spending for all Americans at $4,065, while IHS spent about $1,914 per person and average spending on Navajo patients is just $1,187.

The USCCR adds, ``In fact, the federal government spends nearly twice as much money for a federal prisoner's health care than it does for an American Indian or Alaska Native.''

Consequently and not surprisingly, this disparity in funding translates into severe health disparities for Native Americans. For example, life expectancy is 6 years less than the rest of the U.S. citizens. Tuberculosis rates are four times the national average. Complications due to diabetes are almost three times the national average and death rates exceed the Healthy People 2010 targets by 233 percent. Infant mortality rates are 1.7 times higher than the rate for white infants.

In recognition of these facts, the National Indian Health Board has said, ``The travesty in looking at the deplorable health of American Indians and Alaska Natives is recognizing that the poor health indicators could be improved if funding was available to provide even a basic level of care.''

The U.S. Commission on Civil Rights adds, ``In this light, this report should be considered a clarion call to those who inexplicably fail to acknowledge the present state of Native American health care and to those who lack a commitment necessary to address the overwhelming need for clear and decisive action. Such a call is certainly appropriate for our political leadership and the message is clear--it is finally time to honor our nation's commitment to protecting the health of Native Americans.''

Such an agenda is actually a fairly simple one. It would include:

No. 1, full funding for the Indian Health Service and tribal health organizations, which should include conversion of IHS into an entitlement program;

No. 2, increased numbers and funding of urban Indian health organizations;

No. 3, reauthorization of the Indian Health Care Improvement Act;

No. 4, coverage of as many American Indians and Alaska Natives who qualify for federal health programs, such as Medicare and Medicaid, as possible to ensure they are enrolled and receiving benefits in order to augment funding to IHS facilities; and,

No. 5, targeted efforts to address health disparities in Indian Country, such as diabetes.

For this reason, I strongly support the annual budget and appropriations efforts, which have been led by Senator Daschle in the past and Senator Dorgan this year, to increase funding for the Indian Health Service. Unfortunately, those efforts continue to be voted down in the Congress.

I also strongly support reauthorization of the Indian Health Care Improvement Act, IHCIA, which is led by Senators McCain and Dorgan. This effort has been ongoing for 6 years and it is long past time for the Congress to take up and pass IHCIA. Unfortunately, due to continued opposition to certain provisions by the administration, the legislation continues to be bottled up in the Congress and has not even been reintroduced in the House of Representatives.

As a member of the Senate Finance Committee, one area that I have been able to focus on in recent years is to improve coverage for Native Americans in both Medicare and Medicaid. I was able to pass legislation, the Native American Breast and Cervical Cancer Treatment Technical Amendment Act of 2001 or Public Law 107-121, to correct problems whereby Native American women had previously been wrongly denied coverage under Medicaid's breast and cervical cancer treatment option. After a year of work, we were able to pass legislation to correct that outrageous and discriminatory error.

I was also able to pass two provisions in 2003 from my bill, the Medicare Indian Health Fairness Act of 2003, that expanded reimbursement to IHS and tribal health providers for all Medicare Part B services and limited the amount that providers outside the IHS system can charge for services delivered to Native Americans through the contract health services, CHS, program. As with anything related to Native Americans in this Administration, the Department of Health and Human Services, HHS, continues to fail to publish regulations necessary to implement the latter provision, even though the law required publishing of those regulations in December 2004.

Although most involved in Indian health feel frustrated and argue that we are taking one step forward and two steps back with respect to Indian health care policy, it is in the area of Medicare, Medicaid and the State Children's Health Insurance Program, SCHIP, policy that we have been making some progress. The legislation I am introducing today, the Medicaid Indian Health Care Act of 2005, seeks to protect the gains that have been made and to take another few steps forward.

For one, while IHS funding continues to fall further and further behind what is needed, the one bright spot is that collections from third party payers has increased over time with Medicaid playing a fundamental role in that growth.

IHS was first authorized to seek Medicaid payment for services delivered in Indian health facilities, whether operated by the IHS directly or by tribes as part of the Indian Health Care Improvement Act of 1976 or Public Law 94-437.

As Indian health experts Mim Dixon and Kris Locke said, ``This entitlement funding was expected to provide critical resources to improve the quality of health care for AI/AN and to reduce the health status disparities. To support this outcome, there is an additional provision in the IHCIA that Medicaid and Medicare revenues shall not offset Congressional appropriations for the IHS, so that the total amount of funding for Indian health care would increase and not merely be shifted from one funding stream to another.''

With regard to that requirement, however, the U.S. Commission on Civil Rights adds, ``. . . Congress included language to articulate the express intent that increased collections not be used to justify lower appropriations levels. Congress has failed to abide by this clear mandate. Only enhanced collection efforts have made up for shortfalls created by inflation and population growth, and prevented a continuous decline from 1991 until today.''

Growth in Medicaid collections has been used to partially offset the dramatic decline in IHS purchasing power over the years, despite the Federal provision stating that such revenues should not reduce overall IHS spending.

The U.S. Commission on Civil Rights noted that `` . . . collections from third parties increased 453 percent from 1991 to 2003.'' Without that increase, the fate of IHS and health care services for Native Americans would even be more severe.

According to the Government Accountability Office, GAO, in its August 2005 report entitled ``Indian Health Service: Health Care Services Are Not Always Available to Native Americans'', ``In fiscal year 2004, IHS- funded facilities obtained approximately $628 million in reimbursements, with 92 percent collected from Medicare and Medicaid and 8 percent from private insurance.''

Medicaid collections, alone, have by 2004 ``grown to $446 million, which is 71 percent of the total third party collections reported by IHS In FY 2004, . . . Medicaid collections provided about 16.8 percent of the IHS budget for clinical services,'' according to Dixon and Locke.

Consequently, the administration's own congressional justification document for its IHS budget proposes just a 2.1-percent increase, or $62.9 million, in additional IHS funding in fiscal year 2006 while noting that the IHS will increase their Medicare and Medicaid collections by another $8.4 million in fiscal year 2006. The Northwest Portland Area Indian Health Board estimates it will take $371 million to maintain current services for IHS and tribally operated health programs. Therefore, the administration's ridiculously low proposed increase for IHS combined with their estimated increase in Medicare and Medicaid collections will still fall $300 million short of providing current services.

Whether intentional or not, as direct IHS funding continues to fail to cover inflation or population growth year after year, Medicaid collections are now a growing and critical component to providing basic health care services by IHS and tribal health organizations. Yet, while Medicaid has become critically important to the health of American Indians and Alaska Natives, Native Americans constitute a small share of overall Medicaid costs. As the Northwest Portland Area Indian Health Board has found, Medicaid accounts for almost 20 percent of the IHS

budget but less than 0.5 percent of Medicaid expenditures go to Indian health.

Consequently, the legislation I am introducing today with Senators Baucus, Dorgan, Murray, Cantwell, and Johnson entitled the ``Medicaid Indian Health Act of 2005'' is primarily an attempt to prevent the Federal Government and States from inflicting harm on the health and well-being of American Indians and Alaska Natives, but it also seeks to take a few steps forward as well.

What is at stake? First, from the ``do no harm'' prescriptive, both the National Governors' Association, NGA, and the House of Representatives budget reconciliation legislation contemplate major changes to the Medicaid program to achieve $10 billion or more in proposed budget cuts to Medicaid and Medicare. Unfortunately, it is clear that neither the NGA nor the House of Representatives considered the tremendous impact that the cuts they are proposing will have on the health and well-being of Native Americans across this Nation.

For example, both the NGA and the House budget reconciliation package provide for States being able to impose additional premiums, copayments, and other forms of cost-sharing on low-income Medicaid beneficiaries, including Native Americans. Such changes can have enormous consequences for AI/ANs as well as the Indian Health Service, tribal, and urban Indian, I/T/U providers from whom many Native Americans receive health services.

As Andy Schneider of Medicaid Policy, LLC, stated at a meeting in August of this year on Medicaid and Indian health care, ``Regrettably, the NGA recommendations [which have been adopted as part of the House budget reconciliation package] could well make matters even worse for AI/ANs and the I/T/U providers that serve them. The NGA proposal to increase beneficiary cost-sharing could impose additional financial burdens on IHS and tribal health budgets. The NGA proposal for more benefits package `flexibility' could result in significant reimbursement losses to I/T/U providers.''

How would this occur? With respect to additional cost sharing, evidence shows that additional cost sharing either results in reduced use of medical services, which could result in further a decline in the health status of AI/ANs, or that the I/T/U providers will pick up the added cost sharing burden. As Schneider points out, ``These costs include not only the amounts of the copayments and deductibles but also the administrative expense of processing them and tracking the cumulative out-of-pocket payments, particularly if the services subject to cost-sharing are delivered by a non-I/T/U provider.''

Even if you subscribe to the ideology that Medicaid beneficiaries should pay more for their health care, as Dixon and Locke point out, ``The intended outcome of enrollee cost sharing is not achieved in the Indian health system and actually acts to further deplete funding.''

Put simply, added copayments in Medicaid would result in the unintended effect of shifting Medicaid costs directly upon the already horribly underfunded IHS system. In other words, the imposition of consumer cost-sharing provisions by Medicaid on Native American populations would effectively reduce the level and quality of health care services in Indian communities.

With respect to benefit flexibility as proposed by NGA and adopted in the House budget reconciliation package, according to Schneider, ``The effect of reducing Medicaid coverage will be to reduce Medicaid revenues to the I/T/U providers that furnish covered services to this population. Services for which the I/T/U could previously collect Medicaid revenues will no longer be reimburseable because the patient is no longer eligible for Medicaid.''

To address these concerns, the Northwest Portland Area Indian Health Board has recommended, ``The Medicaid program could be a more effective means of financial Indian health programs if it would exempt American Indians and Alaska Natives from cost sharing including co-pays, premiums and any form of cost sharing. It makes little sense to Indian people to sign up for a health program that charges them for health care services that their tribe gave up lands and others considerations to secure for all generations. The practical effect is that they will not sign up for Medicaid and the IHS funded programs will end up paying all the costs of their health care. If this becomes the case, CMS will save the federal government millions of dollars, but renege on rights guaranteed by law and treaties.''

In order to address these important points, one need look no further than the State Children's Health Insurance Program, SCHIP, rules and regulations. As Schneider adds, ``Federal regulations prohibit states from imposing premiums, deductibles, coinsurance, or copayments or AI/ AN children enrolled in their SCHIP programs. There is no comparable regulatory protection for AI/AN children or adults enrolled in Medicaid.''

Consequently, to prevent harm to the health and well-being of Native Americans, section 3 of the Medicaid Indian Health Act of 2005 would explicitly prohibit imposing such things as premiums or other forms of cost sharing on Native Americans within Medicaid, just as SCHIP already does. Section 4 adds a prohibition on the recovery of the estates of AI/AN Medicaid beneficiaries or tribal property by States through the Medicaid Program. Furthermore, section 8 of the legislation allows States to include special provisions exempting Native Americans from additional cost sharing or from benefit reductions in recognition of the special circumstances of Native Americans in the Medicaid Program.

In light of the failure of the NGA to consider the special circumstances of American Indians and Alaska Natives with respect to Medicaid policy, section 5 of the legislation recognizes the Federal trust responsibility and requires the Secretary, prior to the approval of any State Medicaid waivers, to assure that there has been consultation with tribes whose members or tribal health programs could be adversely affected by the waiver. Otherwise, the current waiver process can result in the approval of waivers that may include reductions in Medicaid eligibility, benefits and/or reimbursement or increases in cost sharing that can have a negative impact on Native Americans or tribal health programs.

In short, sections 3, 4, 5, and 8 seek to adopt a policy of ``do no harm'' by preventing changes in Medicaid policy from having negative consequences for Native Americans. Meanwhile, sections 2, 6, and 7 in the bill seek to make some additional progress on behalf of Native Americans through the Medicaid Program.

Foremost among those provisions in section 2, which provides for 100 percent Federal Medicaid matching funds for services delivered to AI/AN Medicaid beneficiaries at urban Indian health programs. Although the Medicaid statute currently provides for 100 percent Federal Medicaid matching funds for Medicaid services delivered to AI/ANs through IHS facilities and a subsequent Memorandum of Agreement, MOA, in 1996 clarified those payments also apply to services provided through tribally owned facilities, the 100 Percent Federal Medical Assistance Percentage, FMAP, does not apply to urban Indian clinics.

In short, if an AI/AN Medicaid beneficiary received services from an IHS or tribal facility, the Federal Government is paying 100 percent of the cost, but if the same individual received the same services from an urban Indian health program funded by the IHS, the Federal Government shifts part of the costs of that care to the State in proportion to the State's share of the FMAP. There is no justification for this cost shift. Just as IHS and tribal facilities are part of the I/T/U delivery system for Native Americans, so are urban Indian health programs and, as part of the ``Federal trust responsibility,'' States should not be required to subsidize any element of this system.

Section 6 of the legislation would simply ensure that I/T/U providers that do not have the status of federally qualified health centers, FQHCs, receive the same level of reimbursement from Medicaid managed care organizations, MCOs, as they would if they were a FQHC. If Medicaid MCOs are continued to be allowed to pay I/T/U providers less for the same services that they pay other network providers, the I/T/U providers will, effectively, be subsidizing the MCO or other network providers, which is not an appropriate use of limited federal IHS resources.

And finally, section 7 of the Medicaid Indian Health Act of 2005 ensures that IHS spending on behalf of a Native American does not disqualify them for Medicaid coverage under the ``medically needy option.'' Current policy prohibits such care from counting toward the ``spend down'' requirements for qualifying as ``medically needy'' in Medicaid. Receiving services at an IHS facility should certainly not disqualify anybody from Medicaid coverage and, once again, IHS should not be subsidizing the Medicaid program.

In total, the provisions in the Medicaid Indian Health Act of 2005 might at first glance appear to be a hodge podge set of provisions related to both Medicaid and Indian health. However, they are not. They reflect a concerted effort on behalf of Native American people to protect the gains that have already been made within the Medicaid Program for American Indians and Alaska Natives and the need to make additional strides to improve the delivery of health services throughout to Native people, including those in urban areas, through Medicaid.

Furthermore, this is just the first in a series of bills addressing Indian issues within the Medicaid and Medicare Programs. The next two will focus, respectively, on improving the Medicare Program and fixing problems with respect to the Medicare prescription drug program for Native Americans and Indian health providers.

As part of the Indian Health Care Improvement Act of 1976 report, the Congress said, ``The most basic human right must be the right to enjoy decent health. Certainly, any effort to fulfill Federal responsibilities to the Indian people must begin with the provision of health services. In fact, health services must be the cornerstone upon which rest all the other Federal programs for the benefit of Indians. Without a proper health status, the Indian people will be unable to fully avail themselves of the many economic, educational, and social programs already directed to them or which this Congress and future Congresses will provide them.''

The Federal Government has a ``Federal trust responsibility'' to Indian people that it is simple not fulfilling. This administration and this Congress can and simply must do better. Part of that multipronged agenda should include passage of the Medicaid Indian Health Act of 2005.

This could occur in a variety of ways. First, the provision from this bill could be incorporated in any budget reconciliation conference report package. Consequently, during Finance Committee consideration of the Senate's version of the budget reconciliation package on October 25, 2005, I offered an amendment that included a number of the provisions from this bill. Opponents of the amendment, which failed on a 9-to-11 party-line vote with Democrats in favor and Republicans opposing it, argued at the time that the budget reconciliation package was not the right vehicle but that we should look to the reauthorization bill for the Indian Health Care Improvement Act to attach these provisions instead.

Two days later, on October 27, 2005, the Committee on Indian Affairs took up and passed S. 1057, the Indian Health Care Improvement Act Amendments of 2005, but did not include any of the Medicaid provisions I have been discussing as part of this bill. They were told that inclusion of Medicaid provisions within IHCIA was objected to by both the administration and the Senate Finance Committee. However, in light of the Senate Finance Committee's failure to take up the amendment earlier this month, another possible vehicle should be the reauthorization bill for the Indian Health Care Improvement Act when it comes to the Senate floor.

And finally, if we fail to get these provisions included in either of those legislative vehicles, we will push to get the Medicaid Indian Health Act of 2005 passed as a free standing piece of legislation. Medicaid has become such a crucial and necessary piece in maintaining and improving the health and well-being of American Indians and Alaska Natives that it is unacceptable that the various Senate committees point to each other as being in charge while not taking the necessary responsibility to get this important protections for Native Americans passed into law.

The Federal Government and the States also point figures at each other as to who is in charge. As Jim Crouch, executive director of the California Rural Indian Health Board, has said, ``The joint operation of the Medicaid program by federal and state authorities often ignores the governmental status of Tribes and the unique needs of Tribal citizens. It is always appropriate for the federal government to establish special provisions that are in the best interest of Tribes and American Indians due to the governmental status of federally recognized tribes.''

Mr. President, it is well past time to enact legislative initiatives such as the Medicaid Indian Health Act of 2005 and reauthorization of IHCIA. Years of broken promises to Indian Country must come to an end. Passage of the provisions in both the Medicaid Indian Health Act of 2005 and IHCIA reauthorization are just two of the pieces that the Federal Government must take in order to fulfill the Federal trust responsibility and make real progress at providing the full array of medically necessary health services that have been long promised to American Indians.

I ask unanimous consent that the text of the bill and a fact sheet describing the various provisions in the bill be printed in the Record.

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

Mr. President, I rise today to introduce legislation co-sponsored with Senator Harkin that would begin to rebuild America's schools. If approved, the Investing for Tomorrow's Schools Act would enable states to develop State Infrastructure Banks--a flexible and inexpensive way to finance school construction and renovation. This approach offers an innovative solution to the urgent problem of fixing deteriorating schools. Every dollar invested to create State Infrastructure Banks would be reused to support project after project in the form of loans and credit support.

According to the National Center for Education Statistics, three in four schools in America need assistance to come into ``good overall condition.'' Repairs and modernizations will cost, according to the National Education Association, $322 billion. New York State has a greater need than any other state--estimated at $51 billion. Just in New York City, schools are estimated to need $21 billion. The city's schools are so old that they would nearly qualify for social security, averaging 61-years-old.

Acute need for school repair and modernization exists nationwide. Need is estimated at $33 billion in California, $25 billion in Ohio, $22 billion in New Jersey, $13 billion in Texas, and $10 billion each in Illinois, Massachusetts, Michigan, Pennsylvania, and Utah. Nation- wide costs add up to $322 billion.

In 2005, an estimated $19.6 billion was spent nation-wide on school construction. At that rate, it will take more than 16 years to modernize school buildings. Last year in New York, $984 million was spent on school construction. At that rate, it will take more than 50 years to modernize New York's schools--and that's assuming that in the meantime we don't need to build more new schools and that no schools fall apart!

When students attend schools in disrepair, the consequences are all too clear.

An article from 2004 in the Poughkeepsie Journal described how, in Hyde Park, New York along the Hudson River, ventilation problems at the 45-year-old Franklin D. Roosevelt High School sickened students and staff causing watery eyes, headaches, nausea, and dizziness. I would like to include this article in the Congressional Record. State Infrastructure Banks would make funding available to address environmental hazards including poor ventilation and bad air quality. They would help more schools become healthy and high-performing.

An article in Newsday newspaper described how, in Hempstead New York, on Long Island, Prospect Elementary, a 100-year-old school, was closed in the fall of 2003 after administrators discovered a rodent problem, mold in the cafeteria, and a crumbling chimney in a classroom.

The Marguerite Golden Rhodes Elementary School was closed after state education officials found a gap between where the paint on the walls ended and where the ceiling began--an indication that either the wall or the ceiling was moving.

Hempstead High School was closed for a week, after a blackboard fell off a wall exposing asbestos left over from a botched cleanup in 1990. 1'd like to include this article in the Congressional Record.

The school closures worsened overcrowding, as parents Celia Ridely and Olive Warner pointed out to Newsday and the New York Times. With schools in such poor condition, is it surprising that just 38 percent of students in Hempstead graduate from high school?

In Washingtonville, 54 miles north of New York City, the roof over a classroom in 44-year-old Taft Elementary collapsed. Fortunately the catastrophic collapse occurred in August of 2004, before the school year began, and no one was injured.

Unfortunately, the U-shaped joist which contributed to the collapse was popular in school construction across New York and throughout America from 1900 to the early 1970s. Many of these schools are still in operation. New York's Department of Education took the precaution of advising school districts to check similar joists to make sure they are in good condition.

The lack of funding for school construction can lead school districts to put off maintenance. Paul Abramson, a consultant based in Westchester County, New York told a school construction website, ``What happens, unfortunately, is [that] school districts cut down on maintenance.''

Barbara Knisely-Michelman of the American Association of School Administrators said, ``It comes down to the issue of resource. If school administrators had unlimited resources, [maintenance] would be at the top of the agenda.''

We can do better. Schoolchildren should not have to contend with falling-down schools. The lack of adequate school buildings hampers today' s most promising and innovative efforts to boost student achievement.

Charter schools hold the promise of expanding the supply of high- quality public schools, especially in disadvantaged communities. But most charter schools have limited credit histories and lack access to public school facilities or traditional funding streams such as bonds. One in three charter school operators report that school construction costs are a major obstacle to their schools' success.

The No Child Left Behind Act promised that children in underperforming schools would have the opportunity to transfer to better public schools. But in many communities, more students seek transfers than are spaces available. In New York City last year, 33,000 students applied to transfer out of underperforming schools but only 7,000 could be accommodated.

Charter school operators should have access to affordable financing for school construction. Schoolchildren promised public school choice should be able to exercise that right. Innovative reforms should not be blocked by inadequate school buildings.

In 2004, an editorialist for Newsday newspaper on Long Island wrote, ``School construction is one area where the federal government could do more. Little . . . has been heard on the subject since the late 90s-- that's a shame. . . . Money must be found to keep schools safe, functional, and welcoming places.''

Senator Harkin and I agree. That's why today we are introducing the Investing for Tomorrow's Schools Act. At the heart of our proposal is the creation of State Infrastructure Banks, which would improve financing for school construction. This financing mechanism has been used since the Reagan Administration to help local communities fund water treatment and clean water facilities and transportation projects. For example, my own State of New York received $2.48 billion in Federal support for its Clean Water State Revolving Fund between 1989 and 2004. It leveraged that money into more than $10 billion of loans to local communities.

For example, State Infrastructure Banks would offer school districts a flexible menu of loan and credit enhancement assistance, such as low interest loans, bond-financing security, loan guarantees, and credit support for financing projects, which result in lower interest rates.

State Infrastructure Banks would not strain Federal Treasury or the American taxpayer. After initial funding, they would require no ongoing federal appropriations. As each loan is repaid, the money can be offered as a new loan.

Passage of this bill would lay the groundwork for a robust system of State Infrastructure Banks that provide immediate aid to the neediest schools and help local communities

fund affordable construction far into the future.

This modest proposal is one piece of the school construction solution. I ask my Senate colleagues to join me today to pass this legislation without delay.

Mr. President, I ask unanimous consent that 2 articles be printed in the Record.

Mr. President, I rise today to discuss a serious, persistent, and entirely preventable threat to the health and well- being of our children.

Lead is highly toxic and continues to be a major environmental health problem in the United States, especially for infants, children, and pregnant women. A CDC survey conducted between 1999-2002, estimated that 310,000 American children under 6 were at risk for exposure to harmful lead levels in United States. Childhood lead poisoning has been linked to impaired growth and function of vital organs and problems with intellectual and behavioral development. A study from the New England Journal of Medicine also found that children suffered up to a 7.4-percent decrease in IQ at lead levels that CDC considers safe. At very high levels, lead poisoning can cause seizures, coma, and even death.

The most common source of lead exposure for children today is lead paint in older housing and the contaminated lead dust it generates. Despite a ban on lead paint in 1978, there are still over 24 million housing units in the United States that have lead paint hazards, with about 1.2 million in New York State alone. According to 2000 census data, New York State has over 37 percent of homes that were built prior to 1950 and more pre-1950 housing units available for occupancy than any other State.

Though New York State has made considerable progress in prevention and early identification of childhood lead poisoning, more needs to be done to minimize the risk of lead exposure in the home, by our kids. About 5 percent of New York children screened for lead

poisoning at age 2 were found to have elevated levels of lead in the blood, more than twice the national average. Minority and poor children are disproportionately at risk, as these groups are more likely to live in older housing with poor building maintenance, where the risk of lead paint hazards are greater. Low-income children are eight times more likely to develop lead poisoning than more affluent children, and African-American and Mexican-American children are five and two times more likely, respectively, to have toxic blood lead levels than white children. In New York City, about 95 percent of children with elevated blood levels were African American, Hispanic or Asian.

I am glad that the U.S. Department of Health and Human Services considers lead poisoning to be a priority, and established a national goal of ending childhood lead poisoning by 2010. However, Federal programs only have resources to remove lead-based paint hazards from less than 0.1 percent of the 24 million housing units that have these hazards. At this pace, we will not be able to end childhood lead poisoning by 3010, let alone 2010.

We will never stop childhood lead poisoning unless we get lead out of the buildings in which children live, work, and play. In Brooklyn, more than a third of the buildings in one community have a lead-based paint hazard. Parents of children with lead poisoning are being told that nothing can be done until their children's lead poisoning becomes worse. How can we ask parents to watch and wait while their sons and daughters suffer from lead poisoning before we remove the lead from their homes?

That is why today, I am proud to introduce the Home Lead Safety Tax Credit Act of 2005 with my colleagues, Senators DeWine, Obama, and Smith. This legislation would provide a tax credit to aide and encourage homeowners and landlords to engage in the safe removal of lead-based paint hazards from their homes and rental units. Specifically, it would change the IRS Code of 1986 to provide a tax credit for 50 percent of the allowable costs paid by the taxpayer, up to a maximum of $3000 and $1000 for lead abatement and interim control measures, respectively. Interim control measures, which can include replacement of windows, specialized maintenance, safe repainting and renovation work practices to eliminate lead hazards, are a cost- effective means of protecting the largest number of children in the near term. While total elimination of lead paint in housing is the most desirable, interim control measures typically cost three to nine times less and can be equally effective at removing the lead hazard.

The credit is targeted to homes that contain children less than 6 years of age or a woman of childbearing age, low-income residents, and to buildings built before 1960, as these include more than 96 percent of all units where lead-based paint is prevalent. In Massachusetts, a similar tax credit helped reduce the number of new cases of childhood lead poisoning by almost two-thirds in a decade.

The Home Lead Safety Tax Credit Act of 2005 would help homeowners make over 80,000 homes each year safe from lead, which is more than 10 times the number of homes made lead safe by current Federal programs. It would greatly accelerate our progress in ridding our Nation of the significant problem of childhood lead poisoning. I ask my colleagues to join me in supporting this legislation, which will provide needed incentives for property owners to ensure that our homes are safeguarded against environmental hazards that detrimentally affect the health and safety of our children.

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

Mr. President, I am pleased today to announce the introduction of legislation designed to improve our workplace health and safety. The Senate Committee on Health, Education, Labor and Pensions, that I Chair, has a broad range of responsibilities. None of them is more important than the oversight of our occupational safety and health laws.

In the past decade or so we have witnessed steady progress toward safer and healthier workplaces. For example, in 1992, approximately 9 out of every 100 American workers suffered a workplace injury. By 2003, that injury rate had been cut nearly in half. Over the same period we have seen more than a 20 percent decline in the annual rate of fatalities from workplace injuries.

As encouraging as this progress is, however, it should not be cause for anyone to become complacent. The number of work-related deaths and injuries remains unacceptably high. For example, last year, despite the efforts of all concerned, some 4.4 million workers suffered work- related injuries, with 1.3 million of those injuries involving lost work days. Such workplace injuries continue to bring hardship to employees and their families and to impose significant burdens on our economy. We need to continue our efforts to improve workplace safety.

If we are to be successful in our efforts we must be prepared to cast aside old assumptions, be willing to embrace new ideas, and be candid enough to agree on some fundamental realities. First among these realities is that the overwhelming number of employers are concerned about the welfare of their employees and are fully prepared to comply with laws aimed at enhancing their safety on the job. The notion that employers care little about worker safety, or are prepared to sacrifice worker health in the pursuit of higher profits is a dangerously inaccurate myth. It is dangerous because it promotes and perpetuates an adversarial relationship between employers and government safety agencies at the very time that we need precisely the opposite. Cooperation, not confrontation is essential in making our workplaces safer.

It is fortunate that most employers want to do the right thing since without the cooperation of the employer community there is little realistic hope of continuing to improve workplace safety. That is the second fundamental reality we must accept. Where the vast majority of employers are committed to establishing and maintaining a safe workplace, it makes little sense to perpetuate a system built largely on a system of inspections and sanctions. Any system aimed at fostering workplace safety that relies principally on such measures is not only improperly focused; it cannot, as a practical matter, even hope to achieve its intended goal.

Simple mathematics makes it clear that we cannot inspect or sanction our way to greater job safety. Today, the total number of OSHA inspectors, including those employed by the states, as well as those employed by the Federal Government, is less than 2,400. Each of these individuals conducts an average of about 40 inspections a year. In other words, there will be less than 100,000 work sites inspected by State and Federal OSHA combined in any given year. At the present time, there are well over seven million worksites in the United States. At current inspection rates, we would need nearly 170,000 OSHA inspectors in order to inspect all U.S. work sites just once a year. In addition, since most industrial accidents occur in a split second, and since many are caused by unsafe acts rather than unsafe conditions, even an army of inspectors could not adequately address the issue.

It is my view that any practical approach to addressing the issue of workplace safety must recognize these realities and be designed to encourage and assist employers in achieving this end--not merely punish them for failing to do so. For these reasons, the legislation that I have introduced today contains a number of provisions designed to enhance voluntary compliance, and to provide technical assistance to the vast majority of employers that strive every day to ensure the health and safety of their employees. Thus, these bills contain provisions that encourage employers to engage the services of highly qualified third-party safety consultants to assist them in creating safer workplaces. The legislation also seeks to extend the benefits of such worthwhile initiatives as the current Voluntary Protection Plan to smaller employers; and it increases the level of government outreach and technical help to employers seeking assistance in making their workplaces safer. It also provides for increased training of OSHA personnel and fosters a greater understanding of specific workplace

safety issues through a unique cross- training and exchange program between OSHA and the business community. These last two initiatives are predicated on the common sense notion that the more we know and the more we collaborate toward a common goal, the more likely it is that we will achieve the desired result.

While I believe that the interests of workplace safety compel us to dramatically increase our efforts at encouraging voluntary compliance, we cannot be unmindful that the Occupational Safety and Health Act is a regulatory statute; and that, like all regulation, there are points at which the process becomes adversarial. I certainly believe there should be a less adversarial process, however, when it does occur I believe it needs to be fair and regular. In the regulatory context, the power and resources of the Federal Government can be overwhelming, particularly to small businesses. We need to make sure that the adversarial playing field is a level one, and that the legitimate expectations of fairness and regularity of process are adequately met. For this reason, the bills which I have introduced today contain a number of provisions aimed at ensuring this result. Thus, the bill provides for the recovery of attorney's fees by small businesses that prevail in litigation against the government in an OSHA claim, and codifies procedural flexibility and fairness in the issuance and processing of disputed claims. The legislation also recognizes that no one, least of all employees, are well served by lengthy delays in the resolution of contested claims by increasing the size of the Review Commission and making additional changes designed to insure the issuance of more timely decisions. The legislation also returns the Review Commission to the status of a fully independent adjudicatory body as envisioned in the original OSHA legislation by insuring that its decisions are accorded appropriate legal deference. The legislation also injects some much needed flexibility into the administration and enforcement of the statute by permitting the use of alternative, site-specific compliance methods, giving inspectors a degree of compliance discretion, and encouraging the prompt correction of certain non-serious violations.

In addition to these changes that are based upon procedural and regulatory fairness, the legislation also contains provisions designed to address the root cause of many industrial injuries, and others aimed at bringing a much-needed measure of simplicity and uniformity to our workplace safety laws.

In the first instance, for too long we have held the one-dimensional view that work conditions and employer practices are the principal, if not exclusive, factors in workplace safety. The reality is that unsafe individual behavior also has an extraordinary impact. For example, it is estimated that 47 percent of all serious workplace accidents, and 40 percent of all workplace fatalities involve drugs or alcohol. Some 38 to 50 percent of all workers' compensation claims are related to drug or alcohol abuse in the workplace. An industrial accident typically takes only a split second to occur. The safest conceivable conditions and systems can be rendered useless in that instant by an employee whose judgment or reactions are impaired.

Apart from substance abuse, we also cannot ignore the fact that any employer's safety policies and procedures can be rendered useless whenever someone breaks the rules.

If we are serious about workplace safety we have to understand that the employer is not the only factor in the equation. And, if we propose to achieve workplace safety solely by regulating employer conduct, then we fail to adequately address the entire issue. At a minimum, we need to provide employers some tools and encouragement to control the safety-related behavior of others. We cannot mandate that employers take disciplinary action against their employees who violate safety rules, but we can encourage them to enforce such rules appropriately and consistently. We likewise cannot compel employers to institute drug and alcohol testing programs, but we can remove the legal barriers to their doing so. Today's legislation, by codifying the third party misconduct defense, and authorizing the establishment of substance testing, provides exactly the type of tools and encouragement that are necessary.

It may be the employer's workplace, but workplace safety is everybody's job. We need laws that reflect the fact that a safer workplace is everybody's responsibility. For this reason today's legislation also contains a provision that allows OSHA to issue citations and impose limited fines on employees that violate rules and procedures regarding the use of company-supplied personal protective equipment. As noted, the authority here, although limited, is nonetheless intended to make clear the notion that safety is everybody's responsibility.

Lastly, our current law provides that employers must communicate workplace hazards to their employees. This is an important, and appropriate goal. ``Communication,'' however, requires the delivery of clear, and meaningful information to the recipient. Unfortunately, in many respects our hazard communication efforts have become so complicated that the complexity stands in the way of the original notion that employees need plain information about workplace hazards so that they can take adequate precautions to protect themselves. This process has become even more complicated by the globalization of our economy, and the fact that many hazardous substances routinely in use in our workplaces originate outside our borders. These are likewise realities that we must address, and that the legislation offered today does. Thus, the HazCom Simplification and Modernization Act that is a part of the legislative package introduced today provides for the simplification of current hazard communication standards and it creates a commission designed to review and make recommendations regarding the implementation of the global harmonization of chemical labeling, hazard communication and a variety of related issues. I am particularly proud of the fact that this bill is the product of considerable bi-partisan effort, and I am particularly pleased to have Senator Murray as its cosponsor. I am deeply grateful for all her efforts in bringing this legislation to this point.

It is my belief that the three bills introduced today reflect the correct and balanced approach to the goal of increased work place safety that all of us want to achieve.

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

Mr. President, I am pleased to introduce legislation today that will promote openness and fair competition in the radio and concert industries.

I have followed the changes in the radio and concert industries since the 1996 Telecommunication Act with great concern. For years, I have heard complaints from my constituents about the increasing concentration of ownership in the radio and concert industries and, in turn, the increasingly uneven playing field for small radio stations and independent concert promoters. For consumers this has meant less diversity, less local content and growing dissatisfaction with the radio and concerts they are offered.

Most recently in the last Congress, I introduced broad legislation to address ownership consolidation and the anti-competitive practices common in the industry. These practices include tacit or explicit pay- for-play, or ``payola,'' payments, and corporate radio stations putting untoward pressure on artists to play at the same corporation's venues use affiliated concert promoters. While I continue to be concerned by consolidation and believe this centralization exacerbates the potential for abuse, the bill I introduce today focuses instead on the anti- competitive practices, whether they occur at a radio station group of a handful of stations or one that owns thousands of stations.

Some might question why we need added scrutiny and accountability for the radio and concert industries specifically. Besides the unique role radio plays for communication and entertainment in each American's life, radio also is, in a sense, a public-private partnership. With radio's use of the public airwaves, it also has a responsibility to serve the public good.

The abuses within the radio and concert industry are not entirely new. In fact, problems have occasionally sprung up almost throughout the entire history of the medium. There almost seems to be a cyclical pattern as the payola is rooted out and then several years later is reincarnated in slightly different form to grow to become pervasive again. So while the original payola practices predated the recent rapid consolidation in the industry, the concentration of power has made the problem more widespread and its effects possibly more severe on local stations, promoters, artists and consumers.

While paying a radio station or radio station employee to play a certain song without telling the audience has a long history in radio, this does not make the fraud and bribery any more acceptable. In the 1950s, the practice was relatively simple. Artists, their labels or managers would often directly bribe DJs to play their songs either in cash or through other consideration. When this practice became public, there were investigations and Congress and the Federal Communications Commission (FCC) took actions to block this payola.

The most recent incarnation of payola takes a more complicated and sophisticated--corporate, if you will--approach to skirt the current rules that prevent direct pay-for-play. Indirect payments through independent music promoters have been an open secret, as have more direct payments, as the ground-breaking investigation of New York Attorney General Eliot Spitzer demonstrates. While the Spitzer investigation is ongoing, he has already uncovered significant abuses and this summer reached a $10 million settlement with a record label.

While not traditionally considered payola, there are other abuses of power over airplay decisions by radio stations and their corporate parents, especially when the conglomerate also owns concert promoters and venues. This cross-

ownership sets up a situation where the same corporation that is negotiating a contract for an artist to perform at its concert also controls the lifeblood of that artist's success--airplay of his or her songs. The result can be intense pressure on artists to play radio station-promoted shows and, often, to do so for less than the normal rate. This practice hurts the artist, hurts competing independent stations and promoters and, ultimately, hurts the listening public, which ends up choosing from songs on the radio that have been selected based on where and for whom the artist is performing a concert, and for the songs' artistic merit. Moreover, for any artist who deigns to refuse the direct or implied extortion from the conglomerate, as Don Henley's courageous testimony in a 2003 Commerce Committee hearing clearly explained, there is the risk of retaliation--either immediately or by boycotting the next single or album the artist produces. And with the consolidation in the industry, that boycott might not just be in one station in one market; it could be forty stations in many markets. Facing this kind of potential threat, you can see why even the most popular acts are afraid to speak publicly.

The bill I introduce today proposes a multi-faceted approach to the various entrenched forms of payola. The bill would simultaneously strengthen the FCC's ability to prove and punish violators, close the loophole allowing indirect payola, prevent cross-ownership from hindering fair competition, and, perhaps most importantly, increase transparency through disclosure of the payments to radio stations from artists, labels, promoters and others who may have an interest in improperly influencing airplay decisions.

The bill improves the FCC's ability to enforce payola violations through several means. It requires radio stations to make transactions with entities like record labels that might have an interest in influencing airplay on an ``arm's length basis.'' Moreover the bill requires record-keeping of such transactions and makes the records available to the FCC in the event of an investigation. In addition, the bill significantly increases penalties for payola violations and allows the FCC to consider revoking a station's license. As we have seen in the realm of indecency, multimillion dollar companies do not blink at the current fines of $10,000 per violation, but the prospect of putting a license in jeopardy will get their attention.

As I've already mentioned, the current payola rules were put in place for an earlier, simpler incarnation of the practice--the direct bribing of DJs and stations. Payola has changed, often going through third parties such as independent music promoters or under the guise of a legitimate transaction. The bill broadens the current rules to include these indirect payments, so no matter what tortured path money or other consideration travels, if it is for airplay and not disclosed, it is payola.

Cross-ownership of radio stations and concert promoters or venues poses a serious problem for fair competition. Without controls, the relationship injects the profitability of a concert and not artistic merit into airplay decisions. The bill would either prohibit this, in the case of cross-ownership, or place controls to ensure fair competition in the concert promotion industry.

The final element of the bill--increased transparency--hopefully will have the biggest impact by deterring payola in all its past, present and future incarnations. The bill requires radio stations to disclose all receipts of payments or consideration that could be used as a front for payola along with a list of the songs played every month, broken down by label and artist. While corporations may not fear the current hard-to-prove $10,000 fines, they do understand public relations. The potential for consumers and the media to use these records to connect the dots should have a chilling effect on the practice and may mean that the FCC Enforcement Bureau will rarely even need to be involved. But if problems persist, this bill will provide the Bureau with better powers and evidence to combat payola in all its forms.

Finally let me put this in context and remind my colleagues that radio stations use a public resource, the airwaves, to reach their listeners. With this use comes a responsibility to the public and an understanding that they accept a degree of increased scrutiny. My legislation strives to ensure that the public knows when it hears a song on the radio that it is because the station, the DJ, the public, or even a focus group, believes it has artistic merit and that it is something the listeners will enjoy. Too often, today's radio listeners are left to wonder whether a song was played because the station manager got a new laptop or because the station's parent company is producing the artist's upcoming concert.

It boils down to choices. This bill will reinstate choices, the fundamental basis of competition; choice for the artists to pick which concerts to play and who they want to promote their concerts; choices for the radio stations to play songs based on merit, or at least not based on narrow financial interests; and ultimately choices for consumers as artistic merit instead of the ability to pay carefully disguised bribes broadens the field of artists who can compete.

I am pleased that my bill has been endorsed by the following groups, and I am grateful for the input they have provided about problems in the radio and concert industries: the American Association of Independent Music/A2IM; the American Federation of Television and Radio Artists; the American Federation of Musicians of the United States and Canada; Consumers Union; Free Press; the Future of Music Coalition; the National Academy of Recording Arts and Sciences, Inc.; and the Recording Artists' Coalition. I urge my colleagues to join me and support this legislation to promote fair competition in the radio and concert industries. I urge my colleagues to join me and support this legislation to promote fair competition in the radio and concert industries.

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

Mr. Speaker, I rise today in cautious support of the Broadcast Decency Enforcement Act of 2005. While I believe the public should be able to trust that the content of programming during peak viewing times is age-appropriate for children, I am concerned that strict regulations, if improperly applied, can result in infringements on our right to free speech.

Parents ought to be able to watch or listen to public broadcasting without fear that obscene material is foisted on their children. The Federal Communication Commission's (FCC) role in encouraging and enforcing decency regulations provides parents with a level of security that their family can watch television together or listen to the radio on the way to school without concern about the appropriateness of the information for their children.

As our society's values have changed with different trends, the FCC has provided a standard to guide broadcasters and encourage them to take into account the diversity of their audience when making programming decisions. This bill will retain these standards and dramatically increase the amount a broadcaster can be fined for each violation. While I support keeping broadcasters accountable to the public, I believe excessive fines could be a slippery slope toward violations of first amendment rights and public access to a diverse discussion of ideas. I am, therefore, supporting this legislation but with a deep concern that Congress may well have to re-examine the nature of these fines in future legislation, particularly if they have the effect of prior restraint on first amendment freedoms.

In light of recent scrutiny of indecent material, many broadcasters, artists, and performers are looking toward unregulated airwaves, such as cable and satellite radio. If these programs and performers move to these arenas, the quality of public airwaves leaves with them. The free flow of ideas is the cornerstone of our society, and opens the minds of Americans to different ideas, cultures and lifestyles. Public television and radio provides a medium for these ideas to reach all Americans, not just those who can afford it.

So it is with some deep hesitation that I vote for this bill, as I hope it will not set a dangerous precedent of excessive fines and regulation on television and radio content and possibly infringe on our first amendment rights, but instead ensure that broadcasters are aware and accountable for the content which they air.

I am including an editorial printed in the Rocky Mountain News in March 2004, which I think raises important concerns to consider regarding the increase in fines that this bill will administer.

[From the Rocky Mountain News, March 15, 2004]

Congress Should Retreat in `Indecency' War

Members of the U.S. House of Representatives stampeded

Thursday to pass a bill to appease voters offended by the

Superbowl display of Janet Jackson's breast. Unfortunately,

all of Colorado's House delegation (with the exception of

Mark Udall, who did not vote) displayed a herd mentality.

The Broadcast Decency Enforcement Act, H.R. 3717, raises

the maximum fine for a decency violation to $500,000, an

amount that applies both to on-air personalities and to

broadcast outlets. But because broadcasters often own many

outlets, and programs often air in multiple markets, the

total fine for even a single slip of the tongue (or the

wardrobe) can be astronomical. The legislation was introduced

in January, before the Super Bowl, so it is probably just

coincidence that the new fine amounts to just about one

dollar for each of the more than 500,000 complaints about the

halftime show that flooded into the offices of the Federal

Communications Commission. But the rapid passage is certainly

no coincidence. Public outrage spooked Congress into acting.

The vote was 391-22, with Ron Paul, R-Texas, the lone

Republican to stand up against congressional censorship.

A Senate measure, S. 2056, has similar provisions for

raising fines, but also suspends

for a year FCC rules about how many media outlets a company

can own while the General Accounting Office investigates

whether consolidation in the broadcast media is connected

with indecency on the airwaves. It's awaiting action by the

full Senate.

We're glad there is still lots of full-throated public

reaction against sleaze in the media (even if the public is

often fickle about what it considers inappropriate). The FCC

is supposed to uphold some standards, which is why it

monitors complaints and spells out the rules for what

constitutes ``exhibitionism,'' ``obscenity'' and

``blasphemy.'' But the best pressure, we believe, is the

voice of thousands of individual consumers making their views

known to the companies that market the stuff.

We understand that few politicians, especially with an

election nearing, are willing to risk being accused of

``defending indecency.'' But Congress should tread lightly in

such matters. A law broad enough to ensure that no one's ear

or eye is offended will end up silencing speech--indignation

at government policies, for example, expressed in strong

language--that ought to enjoy full constitutional protection.

``It's a shame we have to address this issue,'' declared

House Majority Leader Tom DeLay, R-Texas, ``but when members

of the broadcast industry violate the boundaries of

reasonable tolerance, that's exactly what we're forced to

do.''

Forced? Panicked is more like it, and the spectacle is

embarrassing.