Procedural Fairness for September 11 Victims Act of 2007

Mr. President, I rise to introduce the Medicare Preventive Services Coverage Act of 2007. It has been ten years since Congress enacted the first comprehensive package of preventive services for Medicare beneficiaries. At the time Medicare was created in 1965, it was modeled closely after the indemnity health insurance policies of the time. As such, Medicare only covered the treatment of illnesses, and it paid for tests only when a symptom was present, but it did not cover preventive services. Over the next 3 decades, the medical community learned a great deal about the importance of preventive care. Although as early as the 1970s, health maintenance organizations had begun to cover cancer screenings and other wellness services, traditional Medicare had not kept pace.

The Balanced Budget Act of 1997 changed that. Working across the aisle, I introduced legislation that year to provide coverage for lifesaving screenings to Medicare beneficiaries. With strong bipartisan support, Congress added our language to BBA 1997, ensuring coverage for preventive services, including: an annual screening mammography for women over age 39; screening pap smear and pelvic examination for cervical cancer; prostate cancer screening; colorectal cancer screening; bone mass measurement for osteoporosis; and diabetes testing supplies and self-management training services.

Congress expanded this list of benefits in subsequent Medicare legislation. Now traditional Medicare also covers cardiovascular screenings to help prevent heart attacks and strokes; diabetes screenings; flu shots to help prevent influenza, glaucoma screening, medical nutrition therapy services, Hepatitis B vaccine, and ultrasound screening for aortic aneurysm.

Medicare also now covers a one-time ``Welcome to Medicare Visit'' within the first 6 months of Part B enrollment. This is an initial physical examination where beneficiaries can receive education and counseling about their medical history and needs, have some preventive screenings performed, and get referrals for other services.

Yes, over the past decade, Medicare has indeed made great strides toward helping our seniors get screened for diseases. But we have far to go.

The participation rate for Medicare preventive benefits is low. One key obstacle is financial. America's seniors still have the highest out-of-pocket costs of any age group. A 2007 Kaiser Family Foundation study compared out-of-pocket health care spending among age groups. For nonprescription drug expenses, it found that average spending for the over-65 population was nearly twice that for under-65 group. It also showed that on average, seniors in one-person households are spending 12.5 percent of their incomes on health care, versus 2.2 percent of those under 65. This means that excluding prescription drug costs, despite Medicare Part D, seniors will have very high medical bills that stretch their fixed incomes. It is no wonder that preventive services that require cost-sharing will be delayed or not received at all.

Over the years, we have also improved the benefits. We have waived the deductible for mammograms and colorectal cancer screenings. But cost sharing is still an obstacle for many seniors. They still must satisfy the deductible before getting reimbursed for the physical exam and most other services, and they must pay coinsurance for all other services except laboratory tests.

The bill that I am introducing today will waive the cost sharing for all preventive screenings and the Welcome to Medicare physical examination. It will also grant the Secretary of Health and Human Services the authority to add additional benefits as he or she determines to be ``reasonable and necessary for the prevention or early detection of an illness or disability.'' These determinations would take into account evidence-based recommendations by the U.S. Preventive Services Task Force and other organizations. Finally, my bill would extend eligibility for the Welcome to Medicare Visit from its current time frame of 6 months to 1 year.

This bill will mean the difference between early screening and delayed diagnosis and treatment. It will mean the difference between detecting a serious illness and providing hundreds of thousands of dollars of services later.

Let me explain why. Preventive services such as mammography and colonoscopy are important tools in the fight against serious disease. The earlier they are detected, the greater the chances of survival. For example, when caught in the first stages, the 5-year survival rate for breast cancer is 98 percent. But if the cancer has spread, that rate declines to 26 percent. Similarly, if colorectal cancer is detected in its early states, the survival rate is 90 percent, but only 10 percent if found when it is most advanced.

Our seniors are at particular risk for cancer. The greatest single risk factor for colorectal cancer is being over the age of 50, when more than 90 percent of cases are diagnosed. In addition to increasing survival rates, identifying diseases early reduces Medicare costs. In the case of colorectal cancer, Medicare will pay $207 for a screening colonoscopy in a medical facility, but if the patient is not diagnosed until the disease has metastasized, the cost of care can exceed $60,000 over the patient's lifetime. Medicare pays $98 for a mammogram, but if breast cancer is not detected early, treatment can cost tens of thousands of dollars more, depending on when the cancer is found and the course of treatment used. One drug used to treat late stage breast cancer can cost as much as $40,000 a year. There can be no doubt that these services are both life saving and cost saving. But if seniors cannot afford the copayments for these services, they may delay getting them.

In addition to cancer, diabetes is another prevalent disease among seniors. The statistics associated with diabetes are staggering. Nearly 20 million Americans are estimated to have diabetes. Approximately half know they have diabetes and another half have diabetes but do not know it. But once diagnosed, the co-morbidities associated with diabetes can be avoided. It is estimated that 90 percent of diabetes-related blindness is preventable, 50 percent of kidney disease requiring dialysis is preventable, 50 percent of diabetic-related amputations are preventable and 50 percent of diabetic-related hospitalizations are preventable.

Diabetes and its complications are not only disabling, but costly to Medicare as well. The cost of medical care of people with diabetes is about $150 billion a year, according to data from the Department of Health and Human Services. In its direct costs, diabetes was the most costly of the 39 diseases reported. Despite the fact that 9 percent of the Medicare population is diagnosed with diabetes, about 27 percent of the Medicare budget is used to treat their diabetes.

Most of the cost for medical care of people with diabetes is for the treatment of the complications, which are largely preventable with modern treatment including blood sugar control. Clearly, prevention of the complications of diabetes would reduce the costs of diabetes in lives and in dollars.

Numerous studies have found that once diabetes management training is provided, populations see a nearly 50 percent reduction in emergency room visits. In addition, the number of outpatient visits, doctor office visits, and other medical expenses all decline. Diabetes can lead to amputations, blindness, heart disease, and stroke, all of which can be prevented with training and management.

This bill also gives the Secretary of Health and Human Services the authority to add new preventive services based on the recommendations of the U.S. Preventive Services Task Force. As we have seen, it can take a very long time for Congress to change health policy in this country. In order to add new preventive services to Medicare, it now requires legislative action. Under current law, as our researchers discover new, more efficient, and more accurate screening methods to detect disease, Congress would have to pass new legislation authorizing coverage for each one. This provision would enable Medicare to provide coverage for new types of screenings based on up-to-date scientific evidence.

The Preventive Services Task Force has a long and distinguished record. It dates back to 1984, when the U.S. Public Health Service convened a panel of primary and preventive health care specialists to develop guidelines for preventive services. From this panel, the U.S. Preventive Services Task Force's Guide to Clinical Preventive Services was born. While many other respected professional and research organizations have issued their own recommendations, the Task Force's publication is regarded as the ``gold standard'' reference on preventive services. In December of 1995, a new Task Force released an updated and expanded second edition of the Guide which includes findings on 200 preventive interventions for more than 70 diseases and conditions. The Task Force employed a rigorous methodology to review the evidence for and against hundreds of preventive services, assessing more than 6,000 studies. The Task Force recommended specific screening tests, immunizations, or counseling interventions only when strong evidence demonstrated the effectiveness of preventive services. My bill will give the Secretary the authority to use this gold standard to expand Medicare's basic benefit package to include the tests that studies have shown to be effective.

The newest benefit is the Welcome to Medicare Visit, an initial physical examination for new beneficiaries. We know that large numbers of people in the 55 to 64 age group lack health insurance, so it is particularly important for them to get a baseline examination and screenings for diseases that affect elderly people But as of July 2006, only 2 percent of all new beneficiaries, or about 8,000 people, have received this physical exam. Uptake has been slow for a number of reasons. You must get the exam within 6 months of enrolling in Medicare Part B. But many seniors don't learn about the benefit until they have been enrolled for a while, and even then it can take several months to schedule a physical examination with a doctor. So the vast majority of our seniors are missing out on this important benefit. My bill extends eligibility from 6 months after enrolling in Part B to 1 year.

Finally, I want to address the matter of cost, and that is the appropriate thing to do under our budget scoring principles. The elimination of cost sharing for preventive services has been scored by the Congressional Budget Office at $1.1 billion over 5 years. Based on CBO estimates from the 2003 Medicare law, extending the eligibility period for the Welcome to Medicare Visit from six months to one year will cost approximately $1.2 billion over years. But I believe that the members of this body also understand that, although dynamic scoring is not used by CBO, preventive health care will save money. If we detect diseases earlier, the overall cost to our society will be less. Our seniors will save out of pocket costs and all taxpayers will save money.

This bill is supported by the American Cancer Society's Cancer Action Network, the American Federation of State, County and Municipal Employees, the Center for Medicare Advocacy, the Colorectal Cancer Coalition, C3, and the Society of Vascular Surgeons. I urge my colleagues to join me in this effort to get improve seniors' access to lifesaving preventive services.

Mr. Speaker, I rise today in support of S. 2106, the Senate companion to H.R. 3921, the ``Procedural Fairness for September 11th Victims Act of 2007.'' This legislation amends the Air Transportation Safety and System Stabilization Act to allow those September 11th victims and their families who opted out of receiving compensation through the September 11th Victims Compensation Fund to have nation-wide subpoena power when litigating September 11th claims. It is necessary to make this change because presently all parties involved in litigating September 11th claims--victims, victims' families and defendants--must do so in the U.S. District Court for the Southern District of New York. The problem occurs because under the Federal Rules of Civil Procedure, no party may compel testimony or documents from non-party witnesses who do not live within 100 miles of the Southern District of New York. This bill would provide for nation- wide subpoena power for all parties. The court however, would retain its authority to modify or quash any subpoena that it determined to be too burdensome.

Mr. Speaker, within 11 days of the September 11th attacks, Congress drafted, debated, adopted and signed into law the Air Transportation Safety and Systems Stabilization Act (ATSSSA), 49 U.S.C. Section 40101. Among other things, this legislation included assistance to the airline industry and created an optional alternative compensation program for individual victims killed or injured by the events of September 11th (the September 11th Compensation Fund). The United States District Court for the Southern District of New York was designated as the only court with ``original and exclusive jurisdiction over all actions brought'' arising out of the attacks of September 11th. The objective was to consolidate all litigation arising out of September 11th events in one location before a single court that could adjudicate all the claims in a thorough, efficient, equitable and fair proceeding.

Given the justifiable interest of Congress in expediting assistance to the airline industry and creating a mechanism to provide compensation to the persons who bore the brunt of the national trauma occurring on September 11th, it is understandable that the Congress did not give due regard to Federal Rule of Civil Procedure 45, which provides for service of trial subpoena to non-party witnesses in the district or State where the case was filed or anyplace within 100 miles of the district that the court proceedings will take place (the ``100 mile bulge'').

The upshot, Mr. Speaker, is that in the absence of this minor change, subpoenas would be limited to within 100 miles of the Southern District of New York (within 100 miles of Manhattan) and could not reach the geographically significant and relevant locales of Boston, Massachusetts (from where flights American Airlines 11 and United Airlines 175 originated) and Washington Dulles Airport (from where American Airlines flight 77 originated).

Pending before the District Court for the Southern District of New York is the consolidated action, In re September 11 Litigation, in which representatives of a number of passengers and ground victims (including claims brought by those who came to the World Trade Center disaster site to assist with the debris removal effort following the attacks), as well as an array of parties suing for property damage and consequential economic loss are seeking recovery from a group of defendants including airline companies, airport security firms, airport authorities, the Boeing Corporation and others.

This litigation focuses not only on the events that occurred at the Twin Towers in Manhattan but also hundreds of miles away at Washington's Dulles Airport, Boston's Logan Airport and various other locations around the Nation, including the headquarters for each of the various airlines and security companies. It has become clear that in order for the September 11th victims, their families, and the defendants to have access to all the evidence relevant to the case, it is necessary to make available at trial non-party witnesses from Massachusetts, Virginia, and elsewhere. The legislation before us accomplishes this limited objective.

H.R. 3921 is non-controversial, bipartisan and bicameral. There has been no opposition to the bill from any interested sectors. the legislation is identical to S. 2106, which was introduced by Senator Biden of Delaware on September 27, 2007 and passed by unanimous consent in the Judiciary Committee and the full Senate the following day. That bill was referred to the House Judiciary Committee as the sole referral. Mr. Speaker, for the reasons stated, I strongly support H.R. 3921 and urge my colleagues to join me in voting for this wise and beneficial legislation.

Mr. Speaker, I move to suspend the rules and pass the Senate bill (S. 2106) to provide nationwide subpoena authority for actions brought under the September 11 Victim Compensation Fund of 2001.

Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on the bill under consideration.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in support of S. 2106, the Procedural Fairness for September 11 Victims Act of 2007. This bill is substantially identical to H.R. 3921, a bill that the House Judiciary Committee reported by voice vote without amendment on October 24.

This legislation would provide immediate procedural relief to the victims of the terrorist attacks of September 11, 2001, by implementing a technical fix to a bill that this Congress passed in the wake of those horrible events.

Eleven days after the September 11 attacks, we passed comprehensive legislation, the Transportation and Systems Stabilization Act. That Act, among other things, created a Victims Compensation Fund to provide relief for victims without the need for litigation. It also allowed victims to opt-out of the fund and seek relief in court.

The bill limited jurisdiction over any civil litigation to the United States District Court for the Southern District of New York.

An unintended consequence of our actions, under operation of the Federal Rules of Civil Procedure, was that subpoena power to secure testimony or documents from nonparty witnesses to any litigation has generally been limited to persons and documents located within 100 miles of the Southern District of New York.

The law we passed in 2001 did not take this 100-mile rule into account. Unfortunately, many of the events relevant to the September 11 tragedy occurred in Boston, where American Airlines Flight 11 and United Airlines Flight 175 originated, and in the Washington, DC, area where the Pentagon is

located and where American Airlines Flight 77 originated. Both of these locations are far outside the 100-mile limit from the Southern District of New York.

The bill before the House today would remedy this problem by providing for nationwide subpoena service for all parties in the litigation, victims, victims' families and defendants, to ensure that all parties involved have an opportunity to obtain the witnesses and evidence they need to obtain a fair hearing. That was Congress' intent, and we should not allow the unintended interplay between the 9/11 legislation and the Federal Rules of Civil Procedure to undermine that legislative purpose.

The bill also makes clear that the existing power of the Federal court under rule 45(c) to quash or modify a subpoena in order to protect a subpoenaed person from undue hardship or expense is maintained. That is the current rule, and the bill makes it clear that this important protection for witnesses will remain.

Congress has previously approved nationwide subpoena power in other contexts. For example, nationwide subpoena power is available under the False Claims Act, the Veterans Benefit Act and the Civil RICO statute.

This bill has bipartisan support. It passed the Senate by unanimous consent in committee and on the Senate floor. The House version, which is substantively identical to the Senate version, was reported by the House Judiciary Committee by voice vote.

Six years ago, Mr. Speaker, Congress and the Nation came together to provide prompt and equitable assistance for September 11 victims. I urge my colleagues to ensure that the laudable goals of that effort are not frustrated by the unintended effect of the Federal Rules of Civil Procedure in this particular case.

I urge the adoption of this measure.

Mr. Speaker, I reserve the balance of my time.

I would add, it's somewhat rare in the Judiciary Committee, as my colleague knows.

Mr. Speaker, I now yield 5 minutes to the gentleman from New York (Mr. Bishop).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the complicated debate over this bill is not so complicated. It's a very simple bill, as you heard. There's unanimous agreement on it. It ought to pass. I thank the leadership. I thank the leadership and the minority leadership on the Judiciary Committee for expediting the bill to where it is now. I urge my colleagues to support this legislation.

Mr. Speaker, I yield back the balance of my time.

I thank my colleague from New York for yielding.

On behalf of my colleagues of New York's congressional delegation, and as one who represents families of the first responders and victims of the September 11 terrorist attacks, I'm proud to rise as the sponsor of the House companion to this important legislation.

I also wish to thank my 11 cosponsors and the distinguished chairman of the Judiciary Committee, Mr. Conyers, as well as the Democratic leadership for expediting the consideration of this bill.

The Procedural Fairness for September 11 Victims Act of 2007, as its title implies, ensures fairness for the victims of the terrorist attacks by correcting a shortcoming in the Federal Rules of Civil Procedure and by reversing an unintended consequence of the bill that established the September 11 Victim Compensation Fund.

Although I was not yet in Congress, many of my colleagues who were here at that time will recall when this body passed the bill creating the compensation fund in 2001.

Shortly thereafter, the Justice Department administered how the fund could allow victims of the terrorist attacks or their families to apply for financial assistance following the loss of loved ones who perished on that tragic day.

The Justice Department also designated the Southern District of New York as the only court in which 9/11 claims could be litigated if victims and their families chose to opt out of the fund.

As a result of this designation and a flaw in the Federal Rules of Civil Procedure, families of the victims, as well as the defendants in the 9/11 cases, cannot gain access to testimony or documents from witnesses who did not live within 100 miles of the Southern District of New York.

But there's really no logical reason why victims and their families should be prevented from securing documents and witnesses just because they happen to be more than 100 miles outside the Southern District.

It is obvious that many of the victims aboard the four airliners that crashed and those who were killed inside the World Trade Center and at the Pentagon, as well as those who witnessed these horrific events, resided well outside of this 100-mile radius of the Southern District of New York.

And it should be assumed that many of the families of the victims who are involved in the 9/11 claims, or those who will seek compensation at a later date, as well as the witnesses, still live in the same locations across the country. Therefore, geography simply should have no role in how they seek compensation.

In response to this problem, this bill amends the Air Transportation Safety and System Stabilization Act to provide for nationwide subpoena power to all parties involved, victims, their families and the defendants, when litigating 9/11 claims.

Simply put, this bill establishes a full measure of justice by allowing subpoenas to be served anywhere in the country, ensuring that all the parties involved in the 9/11 suits can gain all of the information necessary to try these cases fully and fairly.

My colleagues on both sides of the aisle can agree that justice requires that all the parties to cases arising under the Victims Compensation Fund have access to all the testimony and documents relevant to their claims, regardless of where the witnesses or documents are located in the United States.

Therefore, Mr. Speaker, I encourage my colleagues to support the Procedural Fairness for September 11 Victims Act of 2007. Once again, I want to thank the Judiciary Committee for reporting this measure to the floor so promptly, and I thank the leadership for moving it.

Mr. Speaker, I yield myself as much time as I may consume.

Mr. Speaker, I support S. 2106, the Procedural Fairness for September 11 Victims Act of 2007.

In the wake of the 9/11 terrorist attacks, Congress created an operational alternative compensation program for victims killed or injured during the attacks.

This statute mandates that liability for all claims resulting from the 9/11 attacks is limited to an amount no greater than the limits of liability coverage maintained by the air carriers involved.

The statute further provides that compensation may only be obtained pursuant to a Federal cause of action brought in U.S. District Court for the Southern District of New York, where a consolidated action is already pending.

Representatives of several passengers, ground victims and others are suing airline companies, airport security firms, airport authorities, and other defendants. The litigation focuses on events in New York; Washington, DC; Boston Logan Airport; and other areas around the country.

In most civil litigation brought in Federal court, rule 45, mentioned by my colleague from New York, of the Federal Rules of Civil Procedure limits the service of trial subpoenas to nonparty witnesses to the district and State where the case was filed ``or at any place without the district that is within 100 miles of the place of trial.'' This limitation precludes the issuance of some subpoenas in the 9/11 litigation.

However, rule 45 also states, Mr. Speaker, that service may take place elsewhere pursuant to another Federal statute. For example, Congress allows for nationwide service under the False Claims Act, under the Veterans Benefits Act, and under the Civil RICO statute.

If this nationwide service feature is not extended to the 9/11 victims compensation law, a number of important witnesses will not be able to testify in person during the litigation.

There are alternatives to S. 2106, such as conducting pretrial, nonparty depositions around the country or videoconferencing, but they might prove costly. They're more likely to deny the jury the benefit of live, firsthand testimony.

Mr. Speaker, the bill applies equally to plaintiffs and defendants. The legislation promotes justice that is based on Federal precedent in other areas of law.

On this subject matter in this particular case, I agree with my colleague. This is a piece of legislation that did pass out of the full Judiciary Committee by voice vote, without any discernible opposition, something that brings us together here in this Congress, and I urge adoption.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself so much time as I may consume. I just conclude with some of the time that I yield to myself, and I will do so briefly. Sometimes we put a lot of words into our dialogue here, and I just wanted to put it into the simple words.

This bill says a subpoena may be served at any place in the United States with regard to this Act. Very simple. It's something that I do believe provides a better opportunity for justice and equity for those who are involved in a cause of action on this 9/11 victims compensation, and so I urge adoption of this bill.

Mr. Speaker, I yield back the balance of my time.