Prescription for Fairness Act of 2006

Mr. President, I'm pleased today to join my colleague Senator Domenici in sponsoring the Pueblo of Isleta Settlement and Natural Resources Restoration Act. This bill would settle a longstanding dispute over federal mismanagement of lands that resulted in lands within the Pueblo being rendered unusable due to water intrusion. The money provided under the settlement would be designated towards remedying these losses.

Like any settlement, I imagine neither side is completely happy with the result but it is a significant step and will begin the process of restoring inundated lands and acquiring substitute lands. I am happy both sides were able to work out their differences and come up with a solution we can support in Congress. I hope that, in addition to the financial commitment in the bill, the Department of Interior will continue to be a partner with the Pueblo in achieving the restoration of their lands.

I hope my colleagues will join us to quickly move this legislation along so we can begin to restore these lands for the people of the Pueblo of Isleta.

Mr. President, I rise today to introduce legislation with Senators Lautenberg, Menendez, Dorgan, Kennedy, Stabenow, Dayton, Johnson, Clinton, and Akaka entitled the ``Helping to Fill the Medicare Rx Gap Act of 2006.'' This legislation and companion legislation to be introduced by Congressman Dingell fixes an important problem for Medicare beneficiaries and safety net providers by allowing costs incurred by AIDS Drug Assistance Programs, ADAPs, the Indian Health Service, IHS, federally qualified health centers, certain safety net hospitals, and pharmaceutical manufacturer-sponsored Patient Assistance Programs, PAPs--entities that provide prescription drugs or drug assistance for populations under their care--to count toward a beneficiary's annual out-of-pocket threshold as established under the Medicare Modernization Act, MMA.

With the Medicare drug benefit now in effect for more than six months, approximately 3.4 million seniors are reaching the point at which coverage is eliminated until they reach the catastrophic limit. Under the MMA, Medicare pays 75 percent of drug costs until a beneficiary's expenses reach $2,250 in a year. Then it stops paying until costs exceed $5,100, leaving a so-called ``doughnut hole'' of $2,850 that seniors are expected to manage on their own. According to the Kaiser Family Foundation, about 6.9 million Medicare beneficiaries will have to deal with a gap in their drug coverage at some point this year.

An important part of the MMA's prescription drug benefit requires the tracking of beneficiaries' ``true out-of-pocket'' costs, TrOOP, to determine the point at which a beneficiary becomes eligible for catastrophic coverage. In an additional effort to constrain the cost of the prescription drug benefit, the MMA limited the types of expenditures that could count toward a beneficiary's TrOOP, including only:

Cost-sharing related to the annual deductible; costs borne by the Part D enrollee (or contributions by friends or family members on the beneficiary's behalf); contributions from qualifying State Pharmacy Assistance Programs, SPAPs; contributions from eligible charitable organizations; and waivers or reductions by commercial pharmacies of cost-sharing requirements of Medicare prescription drug plans.

Under current law, costs incurred by AIDS Drug Assistance Programs, Indian Health Service, IHS, pharmacies, community health centers, and certain safety net hospital pharmacies on behalf of Part D enrollees during their coverage gap--i.e. while the enrollee is in the so-called ``doughnut hole''--are not permitted to count for TrOOP purposes. In turn, many individuals with HIV/AIDS, Native Americans, and other low- income individuals receiving assistance through community health centers or other qualified safety net hospital pharmacies are never able to reach the catastrophic limit--the point at which Medicare would pay 95 percent of the beneficiary's drug costs. As a result, these beneficiaries are forced to pay premiums to their Medicare drug plan and to absorb the monthly drug costs for a benefit they are not able to access.

A study that was recently published in the New England Journal of Medicine found that prescription drug plans that include doughnut hole- like coverage gaps may lower beneficiary drug costs but any savings are offset by increases in the costs of hospitalizations and emergency room use. Specifically, the study found that patients with such capped benefits had higher rates of nonelective hospitalizations, visits to the emergency department, and even death. It certainly is not surprising that the coverage gap will result in many Americans going without needed medications but it is important to note that overall medical costs are not reduced and that providers will be disproportionately affected when the doughnut hole is reached.

And just when charity pharmaceutical assistance programs are needed most, the current policy is making it difficult for pharmaceutical companies to continue to provide free pharmaceuticals to our nation's poor elderly. The HHS OIG has issued guidance that prohibits costs incurred on behalf of Part D beneficiaries by pharmaceutical manufacturer-sponsored Pharmaceutical Assistance Programs, PAPs-- programs run by the pharmaceutical industry that provide free or low- cost drugs to eligible poor and low-income individuals to count toward a patient's TrOOP due to concerns that providing drugs through these programs might violate the federal anti-kickback statute. The anti- kickback statute prohibits offering or receiving payment to increase the use of products or services--in this case, to steer prescription drug use--at the cost of Federal health care programs. In turn, several pharmaceutical manufacturers are considering terminating their PAPs to avoid running afoul of the law. According to a January article in the Washington Post, 37 pharmaceutical companies donated 22 million prescriptions worth $4.1 billion through PAPs. Across the Nation seniors who benefit from these programs are fearful that they will be forced to go off needed medications or to go into bankruptcy if these programs are not available to help them.

While HHS is working with the pharmaceutical industry to develop guidelines that would allow PAPs to continue to operate in compliance with current law, the HHS OIG maintains that PAP costs will not be permitted to count toward a patient's TrOOP in any circumstance. As a result, similar to the ADAPs, IHS pharmacies, community health centers and safety net hospital pharmacies, PAPs that provide prescription drugs for patients during the coverage gap are forced to become the ``payer of last resort'' because the costs they incur are not permitted to count toward TrOOP expenses and thus, the patient is unable to reach the catastrophic limit.

Pharmacy Assistance Programs, AIDS Drug Assistance Programs, community health centers, and safety net hospital pharmacies will maintain their commitment to provide assistance to low-income senior citizens and people with disabilities in the coverage gap but the current policy imposes a significant financial burden on our nation's health care safety net. While we all recognize the importance of controlling costs, this policy stands to harm vulnerable beneficiaries and safety net providers by permitting the Medicare program to shift the cost burden on to a variety of other federal programs, including discretionary safety net programs, and PAPs. It does not make sense that the Federal Government pays private drug plans a capitated rate to provide services and beneficiaries pay monthly premiums to Medicare while ADAPs, IHS pharmacies, community health centers and certain safety net hospital pharmacies and pharmaceutical manufacturer PAPs are left to shoulder the cost of providing prescription medications to their population of enrollees who will never reach the catastrophic limit. Just as current policy allows SPAP spending to count toward the catastrophic limit so should the costs incurred by these entities.

In addition, this legislation would correct the inequity in the current policy which unfairly discriminates between beneficiaries who receive their prescription drugs from commercial pharmacies and those who receive their medications through PAPs or from safety net pharmacies run by the IHS, community health centers, and certain public hospitals. Currently, only commercial pharmacies' waivers or reductions in Medicare Part D cost-sharing requirements are allowed to count towards TrOOP. This legislation would prevent lower-income Medicare beneficiaries from getting trapped in the doughnut hole by leveling the playing field so that beneficiaries who get their drugs through PAPs or pharmacies run by the IHS, community health centers, or public hospitals pharmacies can move just as quickly toward the catastrophic coverage benefit.

Mr. President, I urge your support for this important legislation to allow Part D-related costs incurred by ADAPs, IHS, federally qualified health centers, and certain safety net hospitals as well as pharmaceutical manufacturer PAPs to count toward a beneficiary's TrOOP expenses. This bill would ensure that all Part D enrollees are permitted appropriate access to the catastrophic coverage that was promised under the MMA.

Mr. President, I commend to my colleagues the New England Journal of Medicine study entitled ``Unintended Consequences of Caps on Medicare Drug Benefits,'' and I ask unanimous consent that the Washington Post article and the text of the bill to be printed in the Record.

Mr. President. I rise today to join my distinguished colleague, Senator Murkowski, chair of the Subcommittee on Water and Power, Committee on Energy and Natural Resources, in introducing legislation to provide new authority and streamlined review criteria for the Bureau of Reclamation's title XVI Water Recycling Program.

I first want to thank Senator Murkowski for her leadership in this area. I deeply appreciate her willingness to work with me on this issue.

I also want to thank my California colleague and friend, Representative Grace Napolitano, ranking member on the Water and Power Subcommittee, who is introducing identical companion legislation in the House of Representatives today.

This legislation is an outgrowth of subcommittee oversight hearings last February and is the product of more than 2 years of discussion, evaluation, and consultation with the Bureau of Reclamation as well as numerous water agencies and communities.

Today, the West faces two daunting challenges simultaneously. The first is drought and the impacts of continued climate gyration--wild swings in previously established weather patterns. The second is the unprecedented growth throughout California and the Western States. Population continues to not just grow but surge throughout this region.

The title XVI, Water Recycling Program enables water users in the West to stretch existing supplies through the application of reclamation, reuse, recycling and desalination technologies.

Title XVI was initially authorized in 1992, following a severe multiyear drought in California and other Western States. A drought of equal severity reduced the mighty Colorado River to record lows only a few years ago. We must find ways to expand our water supplies, and do so without generating regional or environmental conflict. Reusing our existing supplies and stretching those supplies is a significant part of the solution. The title XVI program provides the authority and framework to accomplish these water resource development objectives to meet the needs of our cities and urban areas, our farms and ranches and our diverse environment.

This legislation clarifies and makes permanent the U.S. Department of the Interior and Bureau of Reclamation's title XVI water reuse/ reclamation/recycling grant authority for the development of new sources of water. In so doing, this proposed legislation will help State and local governments and water departments and agencies develop new water and reliable water supplies.

The bill amends the Reclamation and Wastewater and Groundwater Study and Facilities Act, 1992, to provide new standards and procedures for the review of water reclamation and reuse projects by the Interior Department's Bureau of Reclamation. Additionally, the legislation sets forth specific criteria to assist Congress in the evaluation and selection of projects for Federal funding.

In the recent past, the Bureau of Reclamation was not able to review and report on proposed projects in a timely fashion. This legislation establishes firm deadlines, a clear process, and very specific criteria by which project reviews are to be conducted.

This program, unlike traditional Bureau of Reclamation project funding, provides a grant, not to exceed 20 percent of the capital costs or $20 million making this the most leveraged and most cost- shared Federal water resources program. In setting the 20 percent cap, this legislation reduces the overall percentage Federal participation to 20 percent from the 1992 standard of 25 percent to enable more projects to receive Federal cost-share support.

Reclaiming the Nation's Water Act is designed to accomplish one major objective--development of new water supplies responsibly--and in a timely manner. From a California perspective, this legislation compliments and is fully consistent with the recently published California Water Plan Update 2005--published in 2006--by California Department of Water Resources and the 2002 State of California's Water Recycling Task Force, Water Recycling 2030. Both reports conclude that a significant portion of new water to be developed in California will come from water recycling.

Throughout the Nation's more than 200-year history, water conflicts in the West have ``erupted'' periodically. This program is designed to reduce conflict through sound planning, improved management, expanding existing supplies, leveraged financing and meaningful partnerships.

The Subcommittee on Water and Power will hold a hearing on this proposed legislation later this month. At that time, the subcommittee will also hear testimony on three proposed projects, one each in Riverside, Orange and San Bernardino Counties. I have carefully reviewed these projects. They are designed to produce approximately 300,000 acre-feet of new water annually. These projects simultaneously reduce pressure on the Bay Delta--and other Federal and State water users dependent on the water from the delta--as well as the Colorado River. They will help drought-proof their water service areas.

Not too long ago, in a speech delivered at a WateReuse Association conference, John Keys, the recently retired Commissioner, Bureau of Reclamation, called recycled water The Last River to Tap. Commissioner Keys was right.

I would like to provide some additional detail on the legislation. The legislation provides new authority for the Secretary of the Interior to review non-Federal water reclamation and reuse project proposals, pursuant to new standards and procedures for such review.

New standards would include providing sufficient evidence to the Secretary of Interior that the project: (1) is technically viable and (2) has a financially capable project sponsor. The Secretary would have 180 days to submit to Congress: (1) a statement and explanation of the project's technical and financial viability, and (2) a recommendation on whether the project should be authorized for construction based on several specific factors. Factors to be considered would range from items related to project costs and benefits, to whether the project would help serve an identified Federal interest. The bill also includes transition procedures.

This program is vital to the West's future. I look forward to working with Senator Murkowski and my colleagues on the Energy Committee. I want to also thank Energy Committee Chairman Pete Domenici and the committee's ranking member, Senator Jeff Bingaman for their support and assistance in the preparation of this legislation.

Mr. President, I rise today to introduce the North Bay Water Reuse Program Act of 2006. The act would authorize an innovative program to protect the environment while meeting the future water needs of urban and agricultural water users in the North Bay region of California for years to come.

As regulations continue to tighten restrictions on wastewater discharges into the San Francisco Bay, communities are faced with major financial challenges as they determine the best way to discharge their treated wastewater. At the same time, agricultural producers in the North Bay region are facing serious water shortages resulting from a serious overdraft of groundwater. The North Bay Water Reuse Program will solve both problems together.

When completed, the North Bay Water Reuse Program will provide for

the collection and conveyance of treated urban wastewater to agricultural growers, promising a permanent and dedicated supply of about 30,000 acre-feet of water per year. The use of reclaimed water for irrigation will reduce the demand on both surface and groundwater supplies, and thus improve instream flows for riparian habitat and fisheries recovery.

In the off-season when irrigation demand is diminished, the reclaimed water will be used to increase surface water flows for restoration of wetland habitat in the former Cargill Salt Ponds.

This reclaimed water that would be applied productively to vineyards, fields and wetlands is now being discharged as treated wastewater into the San Francisco Bay-Delta Estuary. The North Bay Water Reuse Program will benefit the ecosystem of the bay by providing a cost-effective, environmentally sound alternative for the disposal of urban wastewater.

The legislation I am introducing today allows for the Federal participation of the first phase of this long-term regional project. This cost-shared water reclamation and reuse program is the first of its kind in Northern California, and the first to provide water primarily for agricultural and environmental uses. It is supported by the local governments in three counties--Napa, Sonoma and Marin--that have joined together to undertake the project. Agricultural organizations, such as the Napa and Sonoma County Farm Bureaus, the Carneros Quality Alliance, the Winegrape Growers of Napa County, the Napa Vintners Association, and the North Bay Agriculture Alliance, support the program. And environmental organizations, such as The Bay Institute, likewise endorse the program.

The North Bay Water Reuse Program brings together stakeholders that are usually at odds with one another and provides an ideal solution to guarantee water to the environment and agricultural producers, and simultaneously providing regulatory relief to wastewater agencies.

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

Mr. President, today I join my colleague, from the Committee on Energy and Natural Resources, Senator Dianne Feinstein of California, in introducing the Reclaiming the Nation's Water Act-- ReNew.

We introduce this bill after months of review of the Nation's program, now over a decade old, that attempts to encourage the reclamation and use of water. The Bureau's title XVI program originated in 1992 in response to the Southwestern drought of the late 1980s and early 1990s. At that time, Congress authorized the program in an attempt to alleviate pressure on the Colorado River system by augmenting existing supplies and developing new water sources.

Since then, Congress has authorized some 31 projects and appropriated about $325 million for the program. During a February 28, 2006, hearing of the Senate Water and Power Subcommittee, the Congressional Research Service reported that only three of these projects have received full Federal funding and that 9 are listed as ``inactive,'' meaning they have received little or no Federal moneys.

This massive backlog, which the Bureau of Reclamation has estimated will take at least 15 years to resolve, has not stopped local communities from seeking additional aid under the program. There are bills pending in Congress that would authorize an additional 19 projects--projects that will likely overwhelm the Bureau of Reclamation's budget, if they were all to be funded fully under the existing program.

In an effort to clarify the Federal role in developing new sources of water and in an effort to help local Government receive a dependable and timely supply of Federal assistance for truly worthy water reuse projects, we introduce this legislation to clarify and make permanent title XVI water reuse/reclamation/recycling grant assistance.

Briefly, the bill:

Amends the Reclamation and Wastewater and Groundwater Study and Facilities Act to provide standards and

procedures for the review of water reclamation and reuse projects. Under existing law, the title XVI program has operated without defined terms or specific purpose. This has led to confusion in recent years whether the title XVI program is primarily a demonstration program or was intended to finance permanent reclamation and reuse facilities. This legislation clarifies that the purpose of the title XVI program will be: (1) to assist in the development of permanent local and regional water reclamation and reuse projects; and (2) to further improve water reclamation and reuse technologies through research and demonstration activities.

The legislation also authorizes the Secretary of Interior to participate in opportunities for water reclamation and reuse, including water recycling and desalination activities in reclamation States. The legislation provides new authority for the Secretary of the Interior to review non-Federal water reclamation and reuse project proposals, pursuant to new standards and procedures for such review. New standards would include providing sufficient evidence to the Secretary of Interior that the project: (1) is technically viable and (2) has a financially capable project sponsor. The Secretary would have 180 days to submit to Congress: (1) a statement and explanation of the project's technical and financial viability, and (2) a recommendation on whether the project should be authorized for construction based on several specific factors. Factors to be considered would range from items related to project costs and benefits, to whether the project would help serve an identified Federal interest. The bill also includes transition procedures.

The bill as currently proposed also: (1) Strikes existing provisions providing for appraisal investigations and replaces them in part with a new planning and assistance program--$4.4 million authorized annually-- for non-Federal project sponsors electing to seek help in developing project proposals.

(2) Strikes existing provisions providing for feasibility investigations and replaces them with a new technical and financial review process for evaluating non-Federal sponsor project proposals. Deadlines are included for the technical and financial viability reviews, and a process is established for reporting and making recommendations to Congress on project proposals for funding.

(3) Clarifies that projects must be authorized for construction by the Congress before funds may be expended by the Secretary of the Interior for project construction.

(4) Limits the Federal cost-share for projects to the lesser of 20 percent or $20 million of total project costs--the current limit is 25 percent or $20 million--excluding operations and maintenance costs.

(5) And makes numerous technical and conforming amendments.

Mr. President, I look forward to working with my colleagues, Members of the House, and the administration to perfect and move this bill through the process this year. I believe this bill will provide valuable assistance to local areas to increase the available supplies of potable water through the economic reuse and reclamation of water supplies, while providing an affordable and orderly process that will prove fairer to local communities and help them to receive federal assistance in a timely manner.

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

Mr. President, nearly one-third of Medicare beneficiaries are going to become all too familiar with what is called the ``doughnut hole'' over the next several months. The doughnut hole is a gap in coverage that exists in most Medicare prescription drug plans.

Here is how the doughnut hole works: Under most plans, Medicare will pay for 75 percent of drug costs up to $2,250 after an initial $250 deductible. But then Medicare pays nothing until drug expenses exceed $5,100. During this gap in coverage, beneficiaries continue to pay monthly premiums but get no drug coverage at all. I think this is unfair.

That is why I am introducing the Prescription for Fairness Act. This legislation is simple. It says seniors should not have to pay monthly premiums during the time when they have

no drug coverage. The legislation would waive the monthly premium for any month that a senior is trapped in the doughnut hole.

The legislation will help people like Mrs. McLain, an 88-year-old woman who lives in a long-term care facility in Bottineau, ND. She enrolled in the Medicare prescription drug benefit earlier this year. Her brother, who helps pay her health care bills, was recently contacted by their local pharmacist. The pharmacist explained that Mrs. McLain no longer has Medicare drug coverage and must pay about $500 every month for her diabetes medications. This is not an expense that they had planned for, nor one they can afford. They did not realize that this coverage gap existed when they enrolled in the plan. This is one of countless stories that we will hear over the next several months as seniors fall into this coverage gap.

Some will say that beneficiaries trapped in the doughnut hole should have selected plans that provide better coverage. I think it is unfair to blame beneficiaries for selecting the wrong plan. A new report by the Government Accountability Office found that the call centers operated by the Medicare prescription drug plan sponsors only gave accurate and complete information to callers about one-third of the time. More than one in five callers received completely inaccurate information.

It is worth noting that the Prescription for Fairness Act will have no affect on the bottom lines of the participating Medicare prescription drug plans. Under the legislation, the Secretary of the Department of Health and Human Services will simply pay the monthly premium on behalf of the beneficiary. It is offset by reducing the Medicare stabilization fund. This fund is completely unnecessary. It is a $10 billion pot of money that was added to the Medicare Modernization Act to provide bonus payments and incentives to managed care companies to enter the Medicare market. It is time that Congress provides a safety net for seniors, not health plans.

This legislation merely provides seniors some relief in the short term. The legislation would expire after fiscal year 2008. This Congress still needs to close the doughnut hole. In October, I joined Senator Bill Nelson to introduce the Medicare Prescription Drug Gap Reduction Act, which would allow the Secretary of Health and Human Services to negotiate fair drug prices and the savings would be used to eliminate the doughnut hole. Believe it or not, the Medicare Modernization Act contained a provision that explicitly prohibits the government from using its market clout to negotiate for fair drug prices for our seniors.

I am hopeful that the Senate will take up the Medicare Prescription Drug Gap Reduction Act. In the meantime, let's make sure seniors are not charged for a benefit that they are not receiving. The Prescription for Fairness Act does just that.

I am pleased to be joined by Senators Bingaman, Stabenow, Lautenberg, Johnson, Mikulski, Clinton, Menendez and Akaka in introducing this important legislation. I am also pleased that Families USA has endorsed this legislation.

I ask for unanimous consent that a copy of the bill be printed in the Record.

Mr. President, nearly one-third of Medicare beneficiaries are going to become all too familiar with what is called the ``doughnut hole'' over the next several months. The doughnut hole is a gap in coverage that exists in most Medicare prescription drug plans.

Here is how the doughnut hole works: Under most plans, Medicare will pay for 75 percent of drug costs up to $2,250 after an initial $250 deductible. But then Medicare pays nothing until drug expenses exceed $5,100. During this gap in coverage, beneficiaries continue to pay monthly premiums but get no drug coverage at all. I think this is unfair.

That is why I am introducing the Prescription for Fairness Act. This legislation is simple. It says seniors should not have to pay monthly premiums during the time when they have

no drug coverage. The legislation would waive the monthly premium for any month that a senior is trapped in the doughnut hole.

The legislation will help people like Mrs. McLain, an 88-year-old woman who lives in a long-term care facility in Bottineau, ND. She enrolled in the Medicare prescription drug benefit earlier this year. Her brother, who helps pay her health care bills, was recently contacted by their local pharmacist. The pharmacist explained that Mrs. McLain no longer has Medicare drug coverage and must pay about $500 every month for her diabetes medications. This is not an expense that they had planned for, nor one they can afford. They did not realize that this coverage gap existed when they enrolled in the plan. This is one of countless stories that we will hear over the next several months as seniors fall into this coverage gap.

Some will say that beneficiaries trapped in the doughnut hole should have selected plans that provide better coverage. I think it is unfair to blame beneficiaries for selecting the wrong plan. A new report by the Government Accountability Office found that the call centers operated by the Medicare prescription drug plan sponsors only gave accurate and complete information to callers about one-third of the time. More than one in five callers received completely inaccurate information.

It is worth noting that the Prescription for Fairness Act will have no affect on the bottom lines of the participating Medicare prescription drug plans. Under the legislation, the Secretary of the Department of Health and Human Services will simply pay the monthly premium on behalf of the beneficiary. It is offset by reducing the Medicare stabilization fund. This fund is completely unnecessary. It is a $10 billion pot of money that was added to the Medicare Modernization Act to provide bonus payments and incentives to managed care companies to enter the Medicare market. It is time that Congress provides a safety net for seniors, not health plans.

This legislation merely provides seniors some relief in the short term. The legislation would expire after fiscal year 2008. This Congress still needs to close the doughnut hole. In October, I joined Senator Bill Nelson to introduce the Medicare Prescription Drug Gap Reduction Act, which would allow the Secretary of Health and Human Services to negotiate fair drug prices and the savings would be used to eliminate the doughnut hole. Believe it or not, the Medicare Modernization Act contained a provision that explicitly prohibits the government from using its market clout to negotiate for fair drug prices for our seniors.

I am hopeful that the Senate will take up the Medicare Prescription Drug Gap Reduction Act. In the meantime, let's make sure seniors are not charged for a benefit that they are not receiving. The Prescription for Fairness Act does just that.

I am pleased to be joined by Senators Bingaman, Stabenow, Lautenberg, Johnson, Mikulski, Clinton, Menendez and Akaka in introducing this important legislation. I am also pleased that Families USA has endorsed this legislation.

I ask for unanimous consent that a copy of the bill be printed in the Record.