Home Health Care Access Protection Act of 2011

Mr. President, I seek recognition today to introduce and speak in favor of the Finding Fugitive Sex Offenders Act of 2011, which would give administrative subpoena authority to the Director of the U.S. Marshals Service for the investigation of sex offenders who have failed to register as required by the Sex Offender Registration and Notification Act. The language of the bill is the product of bipartisan negotiations during the last Congress, which was included in a broader child crimes bill last year that passed both the Senate Judiciary Committee and the Senate, but did not become law.

To understand the need for this bill, it is important to understand the history of recent child crimes legislation in Congress. When the Adam Walsh Act, which I cosponsored, was enacted in July 2006 to create a more uniform and enforceable sex offender registry system, over 150,000 convicted sex offenders were believed to be unregistered and missing from the various state sex offender registries. A key component of the Walsh Act, one requested by John Walsh himself, was to give the U.S. Marshals Service primary enforcement authority to locate and arrest unregistered sex offenders who had crossed state lines or had earlier been convicted under federal law. The Walsh Act, however, did not provide the Marshals Service with administrative subpoena authority to perform these investigations, which can span jurisdictions and move quickly. The Finding Fugitive Sex Offenders Act will fix this gap in the law and grant the Marshals Service this long-needed authority.

It is very surprising that this authority does not already exist in light of the hundreds of administrative subpoena authorities that are in place for various federal agencies, including the EPA, the DEA, the FBI, the CFTC, and even the Appalachian Regional Commission. In March 2006, the Congressional Research Service reported that ``[t]here are now over 300 instances where federal agencies have been granted administrative subpoena power in one form or another.'' In reality, that number is even higher. According to the Department of Justice's 2002 Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities, the Office of Legal Policy ``identified approximately 335 existing administrative subpoena authorities held by various executive branch entities under current law.'' Most of these authorities are for civil enforcement or regulatory compliance--matters far less critical and time-sensitive than locating a fugitive sex offender who has intentionally evaded registering his location or place of employment to avoid detection by law enforcement.

There is no reason why the Marshals Service should not have this type of authority. In these fast-moving investigations across state lines, law enforcement simply cannot afford delays, especially on weekends and holidays when U.S. Attorney's Offices are closed and grand jury subpoenas are unavailable. Assistant Attorney General Rachel Brand explained the delays and limitations of traditional grand jury subpoenas in fast-moving investigations when she testified before the Senate Judiciary Committee on another administrative subpoena proposal in June 2004:

Although grand jury subpoenas are a sufficient tool in many

investigations, there are circumstances in which an

administrative subpoena would save precious minutes or hours.

. . . For example, the ability to use an administrative

subpoena will eliminate delays caused by factors such as the

unavailability of an Assistant United States Attorney to

immediately issue a grand jury subpoena, especially in rural

areas; the time it takes to contact an Assistant United

States Attorney in the context of a time-sensitive

investigation; the lack of a grand jury sitting at the moment

the documents are needed (under federal law, the `return

date' for a grand jury subpoena must be on a day the grand

jury is sitting); or the absence of an empaneled grand jury

in the judicial district where the investigation is taking

place, a rare circumstance that would prevent a grand jury

subpoena from being issued at all.

The reality is that sex offenders often fail to register precisely so they can evade detection and move to a new place where they won't face scrutiny. During the hearings and floor debates on the Adam Walsh Act, the Senate heard of the heart-breaking tragedies caused when sex offenders knowingly evaded registration so they could disappear from detection. Senators from Washington and Idaho went to the floor to describe the registry failures and disappearance of Joseph Duncan, who shortly after his release from custody in 2005, absconded from Minnesota

and traveled across the country to Idaho, where he kidnapped Dylan and Shasta Groene from their home in the middle of the night. In the course of the kidnapping, he murdered the children's mother, brother, and the mother's boyfriend by beating them to death with a framing hammer. He then took the children to remote campgrounds across the state line into Montana, where he brutally abused them and later killed Dylan. As one Senator explained during the debate: ``Joseph Duncan was essentially lost by three States. He moved from State to State to avoid capture. No one knew where he was nor even how to look for him.''

A similar tragic story involved the convicted sex offender who killed Florida 9-year-old Jessica Lunsford. John Couey had failed to tell authorities that he was living in a trailer just feet from Jessica's home. In 2005, he kidnapped Jessica from her bedroom and took her to his home where he raped and killed her. Ernie Allen, the President of the National Center for Missing and Exploited Children, cited Couey in his congressional testimony in support of the Walsh Act, explaining that he ``was not where he was supposed to be and [his] presence was unknown to the police or Jessica's family even though he lived 150 yards down the street from her and had worked construction at her elementary school.''

As the Lunsford and Groene cases demonstrate, some sex offenders evade the registry requirements because they want to offend again. In these cases, time is law enforcement's enemy. According to the Department of Justice's guide for families with missing children, ``the actions of parents and of law enforcement in the first 48 hours are critical to the safe recovery of a missing child.'' The Lunsford case illustrates how vital it is for law enforcement to quickly locate sex offenders during a missing child investigation. John Couey reportedly told law enforcement that he kept young Jessica alive for three days before he smothered her inside a plastic trash bag. In a case like Jessica's, this type of authority literally could mean the difference between life and death.

This legislation has broad support. When I drafted this language last Congress, I shared it with the Marshals Service and lawyers who work in the field of protecting children from exploitation. These professionals were not only supportive, but also very clear about the need for this subpoena authority.

I strongly support this legislation and am thankful to the broad bipartisan group, including Senators Blumenthal, Hatch, Klobuchar, Grassley, Whitehouse, Cornyn, Kyl, Graham, Lee, Collins, Thune, Coburn, Burr and Chambliss, who have agreed to cosponsor this legislation. I hope the full Senate will take up and pass this legislation soon.

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

Mr. President, I rise today to join with my colleague from Washington in introducing legislation, the Home Health Care Access Protection Act of 2011, to prevent future unfair administrative cuts in Medicare home health payment rates.

Home health has become an increasingly important part of our health care system. The kinds of highly skilled and often technically complex services that our Nation's home health agencies provide have helped to keep families together and enabled millions of our most frail and vulnerable older and disabled persons to avoid hospitals and nursing homes and stay just where they want to be--in the comfort and security of their own homes. Moreover, by helping these individuals to avoid more costly institutional care, they are saving Medicare billions of dollars each year.

That is why I find it so ironic--and troubling--that the Medicare home health benefit continually comes under attack.

The health care reform bill signed into law by the President last year includes $40 billion in cuts to home care over 10 years. Moreover, these cuts are a ``double-whammy'' because they come on top of $25 billion in additional cuts to home health imposed by the Centers for Medicare and Medicaid Services through regulation in the last several years.

These cuts are particularly disproportionate for a program that costs Medicare less than $20 billion a year. This simply is not right, and it certainly is not in the best interest of our nation's seniors who rely on home care to keep them out of hospitals, nursing homes, and other institutions.

The payment rate cuts implemented and proposed by CMS are based on the assertion that home health agencies have intentionally ``gamed the system'' by claiming that their patients have conditions of higher clinical severity than they actually have in order to receive higher Medicare payments. This unfounded allegation of ``case mix creep'' is based on what CMS contends to be an increase in the average clinical assessment ``score'' of home health patients over the last few years.

In fact, there are very real clinical and policy explanations for why the average clinical severity of home care patients' health conditions may have increased over the years. For example, the incentives built into the hospital diagnosis-related group--or DRG--reimbursement system have led to the faster discharge of sicker patients. Advances in technology and changes in medical practice have also enabled home health agencies to treat more complicated medical conditions that previously could only be treated in hospitals, nursing homes, or inpatient rehabilitation facilities.

Moreover, this unfair payment rate cut is being assessed across the board, even for home health agencies that showed a decrease in their clinical assessment scores. If an individual home

health agency is truly gaming the system, CMS should target that one agency, not penalize everyone.

The research method, data and findings that CMS has used to justify the administrative cuts also raise serious concerns about the validity of the payment rate cuts. For example, while changes in the need for therapy services significantly affect the case mix ``score,'' the CMS research methodology disregards those changes in evaluating whether the patient population has changed. Moreover, the method by which CMS evaluates changes in case mix coding is not transparent, does not allow for true public participation, and is not performed in a manner that ensures accountability to Medicare patients and providers in terms of its validity and accuracy of outcomes.

The legislation we are introducing today will establish a reliable and transparent process for determining whether payment rate cuts are needed to account for improper changes in ``case mix scoring'' that are not related to changes in the nature of the patients served in home health care or the nature of the care they received. This process will still enable the Secretary of Health and Human Services to enact rate adjustments provided there is reliable evidence that higher case mix scores are resulting from factors other than changes in patient conditions. The legislation will also prevent the implementation of future Medicare payment rate cuts in home health until the Secretary is able to justify the payment cuts through the improved process set forth in the bill.

Home health care has consistently proven to be a compassionate and cost-effective alternative to institutional care. Additional deep cuts will be completely counterproductive to our efforts to control overall health care costs. The Home Health Care Access Protection Act of 2011 will help to ensure that our seniors and disabled Americans continue to have access to the quality home health services they deserve, and I encourage all of my colleagues to sign on as cosponsors.

Mr. President, I rise today to join with my colleague from Washington in introducing legislation, the Home Health Care Access Protection Act of 2011, to prevent future unfair administrative cuts in Medicare home health payment rates.

Home health has become an increasingly important part of our health care system. The kinds of highly skilled and often technically complex services that our Nation's home health agencies provide have helped to keep families together and enabled millions of our most frail and vulnerable older and disabled persons to avoid hospitals and nursing homes and stay just where they want to be--in the comfort and security of their own homes. Moreover, by helping these individuals to avoid more costly institutional care, they are saving Medicare billions of dollars each year.

That is why I find it so ironic--and troubling--that the Medicare home health benefit continually comes under attack.

The health care reform bill signed into law by the President last year includes $40 billion in cuts to home care over 10 years. Moreover, these cuts are a ``double-whammy'' because they come on top of $25 billion in additional cuts to home health imposed by the Centers for Medicare and Medicaid Services through regulation in the last several years.

These cuts are particularly disproportionate for a program that costs Medicare less than $20 billion a year. This simply is not right, and it certainly is not in the best interest of our nation's seniors who rely on home care to keep them out of hospitals, nursing homes, and other institutions.

The payment rate cuts implemented and proposed by CMS are based on the assertion that home health agencies have intentionally ``gamed the system'' by claiming that their patients have conditions of higher clinical severity than they actually have in order to receive higher Medicare payments. This unfounded allegation of ``case mix creep'' is based on what CMS contends to be an increase in the average clinical assessment ``score'' of home health patients over the last few years.

In fact, there are very real clinical and policy explanations for why the average clinical severity of home care patients' health conditions may have increased over the years. For example, the incentives built into the hospital diagnosis-related group--or DRG--reimbursement system have led to the faster discharge of sicker patients. Advances in technology and changes in medical practice have also enabled home health agencies to treat more complicated medical conditions that previously could only be treated in hospitals, nursing homes, or inpatient rehabilitation facilities.

Moreover, this unfair payment rate cut is being assessed across the board, even for home health agencies that showed a decrease in their clinical assessment scores. If an individual home

health agency is truly gaming the system, CMS should target that one agency, not penalize everyone.

The research method, data and findings that CMS has used to justify the administrative cuts also raise serious concerns about the validity of the payment rate cuts. For example, while changes in the need for therapy services significantly affect the case mix ``score,'' the CMS research methodology disregards those changes in evaluating whether the patient population has changed. Moreover, the method by which CMS evaluates changes in case mix coding is not transparent, does not allow for true public participation, and is not performed in a manner that ensures accountability to Medicare patients and providers in terms of its validity and accuracy of outcomes.

The legislation we are introducing today will establish a reliable and transparent process for determining whether payment rate cuts are needed to account for improper changes in ``case mix scoring'' that are not related to changes in the nature of the patients served in home health care or the nature of the care they received. This process will still enable the Secretary of Health and Human Services to enact rate adjustments provided there is reliable evidence that higher case mix scores are resulting from factors other than changes in patient conditions. The legislation will also prevent the implementation of future Medicare payment rate cuts in home health until the Secretary is able to justify the payment cuts through the improved process set forth in the bill.

Home health care has consistently proven to be a compassionate and cost-effective alternative to institutional care. Additional deep cuts will be completely counterproductive to our efforts to control overall health care costs. The Home Health Care Access Protection Act of 2011 will help to ensure that our seniors and disabled Americans continue to have access to the quality home health services they deserve, and I encourage all of my colleagues to sign on as cosponsors.

Mr. President, I rise today in support of the Selecting Employment Clusters to Organize Regional Success, SECTORS, Act, which Senator Sherrod Brown and I are introducing. This legislation would amend the Workforce Investment Act of 1998 to establish an industry or sector partnership grant program administered by the Department of Labor.

The SECTORS Act provides grants to industry clusters--interrelated group of businesses, service providers, and associated institutions--in order to establish and expand sector partnerships. By providing financial assistance to these partnerships, this legislation would create customized workforce training solutions for specific industries at a regional level. A sector approach is beneficial because it can focus on the dual goals of promoting the long-term competitiveness of industries and advancing employment opportunities for workers, thereby encouraging economic growth. Existing sector partnerships have long been recognized as key strategic elements within some of the most successful economic development initiatives throughout the country. Unfortunately, current federal policy does not provide sufficient support for these critical ventures.

As Co-Chair of the bipartisan Senate Task Force on Manufacturing, one of my key goals is to ensure that manufacturers have access to a capable workforce. Unfortunately, manufacturers across the country have raised significant concerns about whether the next generation of workers is being trained to meet the needs of an increasingly high-tech workplace.

In fact, in my home State of Maine, the manufacturing sector has shed an alarming 26,200 jobs in the past ten years, or 1/3 of the State's manufacturing employment. And since the beginning of 1990, our state has lost 43,000 jobs. It is therefore critical that we as a Nation provide unemployed manufacturing workers the training needed to excel as our manufacturing sector becomes increasingly technical. This legislation provides a crucial link between establishing worker training programs and fostering new employment opportunities for those who have been affected by the manufacturing industry's decline. By promoting this innovative partnership, we will take a crucial step toward rejuvenating our economy.

Throughout the country, sector partnerships are being used to promote the long-term competitiveness of industries and to advance employment opportunities. For example, the State of Maine has created the North Star Alliance Initiative. The Alliance has brought together Maine's boat builders, the University of Maine's Advanced Engineered Wood Composites Centers, Maine's marine and composite trade association, economic development groups, and investment organizations for the purpose of advancing workforce training.

Our Nation's capacity to innovate is a key reason why our economy, despite difficult times, remains the envy of the world. Ideas by innovative Americans across the spectrums of professions and industries have paid enormous dividends, improving the lives of millions throughout the world. We must continue to encourage all avenues for advancing our nation's economic well-being if America is to compete at the vanguard of innovation. The SECTORS Act will help align America's workforce with the needs of our Nation's employers to promote a robust and growing economy.

Mr. President, today I am introducing legislation to extend the Section 45G short line freight railroad tax credit.

Section 45G creates an incentive for short lines to invest in track rehabilitation by providing a tax credit of 50 cents for every dollar spent on track improvements. If this credit is allowed to expire at the end of the year, private-sector investments in infrastructure in our communities will fall by hundreds of millions of dollars.

``Short line'' railroads are small freight rail companies responsible for bringing goods to communities that are not directly served by large railroads. Supporting small railroads allows the communities surrounding them to attract and maintain businesses and create jobs. The evidence of the success of this credit can be found in communities across America.

This credit has a real impact for the people of my state. West Virginia is the second biggest producer of railroad ties in the country. Since the credit first was enacted, approximately 750,000 railroad ties have been purchased above what would have otherwise been purchased with no incentive. Those railroad ties translate directly into jobs. This credit does not create just West Virginia jobs, it benefits manufacturers of ties, spikes, and rail all across America.

Over 12,000 rail customers across America depend on short lines. This credit creates a strong incentive for short lines to invest private sector dollars on private-sector freight railroad track rehabilitation and improvements. Shippers rely on the high quality service these railroads provide to get their goods to market. Unfortunately, this credit is scheduled to expire at the end of 2011.

This bill would extend the 45G credit through 2017 and provide the important long-term planning certainty necessary to maximize private- sector transportation infrastructure investment. 54 Members of this body sponsored legislation that extended this credit last Congress and I hope there will be similar support again this year.

I thank the Chair and ask my colleagues to join me in supporting this important legislation that will benefit small businesses throughout the country.