Floor Statements

Mr. President, I rise to speak briefly in support of the motion that I understand is to be made by the Senator from Montana, Mr. Baucus, who is here on the floor, to instruct conferees with respect to the Medicaid Program.

The motion to instruct conferees on the Medicaid Program highlights one of the many ways in which the House of Representatives budget reconciliation bill radically departs from the Senate bill. Let me spend a very few minutes highlighting the differences between the House and Senate packages on Medicaid, particularly with regard to the health of children.

The contrast between the two bills could not be more stark. The Senate bill arguably improves coverage of children through the inclusion of the Family Opportunity Act that provides a State option to expand Medicaid coverage to children with disabilities and through inclusion of outreach and enrollment funding based on legislation that Senator Frist and I introduced earlier this year.

In sharp contrast, however, according to the Congressional Budget Office, the House budget reconciliation package imposes increased cost sharing on low-income Medicaid beneficiaries and reduces health services by $6.5 billion over 5 years and by $30.1 billion over 10 years.

For children, the impact of the House bill would be devastating. Medicaid covers more than 27 million children, almost one in four in this country. Medicaid also covers more than a third of all the births and health care costs of newborns in the United States each year.

In spite of the importance of Medicaid for children, the House budget package increases cost sharing for all children who rely on it for prescription drugs or for emergency room services. The bill also allows States to impose premiums for the first time under Medicaid for children's coverage and to deny children coverage even if their family cannot afford to pay the premium or other cost sharing.

The House budget bill also allows States to eliminate the early and periodic screening diagnosis and treatment benefit rules that are so critical to the health of children with special health care needs and disabilities. Benefits that could be lost include comprehensive developmental assessments, assessment and treatment for elevated blood lead levels, eyeglasses, dental care, hearing aids, wheelchairs and crutches, respiratory treatment, comprehensive mental health services, prescription drugs and speech and therapy services. In short, three- fourths of the savings in the House bill come at the expense of low- income Medicaid beneficiaries. By CBO's estimate, half of the beneficiaries affected by the increased cost-sharing provisions in the House package are imposed on children, and half of those who will lose Medicaid benefits would be children.

In CBO's own words:

We estimate that the number of affected enrollees [due to

increased cost-sharing requirements] would increase from 7

million in 2010 to 11 million in 2015, and that about half of

those enrollees would be children.

CBO adds that, due to added premiums, ``about 70,000 enrollees would lose coverage in fiscal year 2010 and 110,000 would lose coverage in fiscal year 2015 because of the imposition of premiums.''

Furthermore, CBO estimates that the flexibility in the House bill to reduce benefits will also heavily impact children. CBO estimates that ``benefit reductions would affect an estimated 2.5 million Medicaid enrollees in 2010 and about 5 million enrollees by 2015--about 8 percent of the Medicaid population--and that about one-half of those receiving alternative [or reduced] benefit packages would be children.''

Without the Medicaid Program, the number of children without health insurance, which was 8.3 million in 2004, would be substantially higher. In fact, the number of uninsured children has dropped by over 300,000 over the past 4 years due in large part to Medicaid and

the SCHIP Program. We should not at this time be taking steps backward by reducing coverage for low-income and vulnerable populations that primarily include the children I have been referring to.

I urge that colleagues support the Baucus motion to instruct conferees on Medicaid. We are coming into the holiday season. This is not a time when we, the wealthiest Nation in the world, should be cutting health care assistance to the low-income children of this country. I did not support the Senate budget reconciliation bill for a variety of reasons, but even with the imperfections that were in that bill, it was far superior to the House budget package. For one thing, it does not contain the type of cuts for children's health that are included in the House bill.

I urge my colleagues to recognize how much better the Senate bill is for the health and well-being of our Nation's children. I urge my colleagues to vote to instruct conferees to support the Senate's approach over that of the House of Representatives.

I yield the floor.

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 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 call up for consideration amendment No. 2642.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, this amendment I am offering is to create a tax credit for small businesses so they can provide health insurance for their employees. This is a terrible need, an enormous need in my own State of New Mexico.

I am defining small businesses as businesses with 50 or fewer employees. According to the Kaiser Family Foundation, only 43 percent of small businesses defined in this way offer health insurance to their employees. This chart sets out the range that applies to each State, and you can see that many States have this very same problem.

In my home State of New Mexico, roughly 38 percent of workers who work for small businesses have access to employer-provided health insurance. In a State such as New Mexico where a majority of the businesses have fewer than 50 employees, the lack of employer-provided insurance is reflected in the overall number of uninsured New Mexicans. Yet according to the Kaiser Foundation, 80 percent of the uninsured in our country come from a family in which at least one person is working.

This amendment creates a tax credit that ranges from 30 percent to 50 percent of the cost of qualified health insurance expenses with smaller employers getting the largest credit. In order to keep the costs down, I have provided that this credit will be effective in the 2006 tax year. We will have to take additional action to extend it beyond that.

What we have learned over the years is that employer-provided benefits are the most efficient and effective means to deliver health care coverage and retirement benefits.

This amendment is totally offset by requiring Government contractors to withhold a very small amount of the taxes they will ultimately have to pay.

This is a very meritorious amendment. It is totally offset and paid for. I urge my colleagues to support it, and the small businesses in their States will be very appreciative of that support.

Mr. President, I yield the floor.

Mr. President, I offer this amendment on behalf of myself, Senator Kerry, and Senator Snowe. This is an amendment that will create a tax credit for small businesses, to encourage them to offer employees health insurance. By ``small businesses,'' I have defined that in the amendment as employers with 50 or fewer employees.

In my State, one of the biggest problems I hear that small employers complain about is their inability to cover the high cost of health care. This is a nonrefundable tax credit for the purchase of health insurance by the employer. The tax credit would range from 30 percent to 50 percent of the cost of a qualified health insurance expense, with smaller employers getting the largest credit.

This is absolutely essential if we are going to expand health care coverage in the country. It is fully offset. I urge my colleagues to support this amendment and add it to this legislation before we complete final passage.

I yield the floor.

Mr. President, I regret that I am unable to vote for the legislation. I support the overwhelming majority of provisions that are contained in this bill and appreciate that they need to be extended before next year so they don't expire. I cannot in good conscience, though, vote for another tax bill that is unpaid for and adds to our national debt. For too many years, the majority has passed tax cuts as short term or temporary measures to mask the real costs of these provisions. We can no longer continue on this course of fiscal irresponsibility. It is for this reason that I supported an alternative offered by the minority that provided similar tax relief but did it in a budget neutral fashion by shutting down corporate loopholes. I also supported amendments during debate on this bill that would put back in place budget rules that would prevent Congress from either cutting taxes or raising spending if the net effect is that it adds to our national debt. We operated under these responsible budgetary rules during the previous administration and it gave us our first back-to- back years of surplus in generations. In 5 short years we have not only squandered the opportunities that these budgetary surpluses offered us, but we created a fiscal mess that handicaps future generations. I look forward to working with my colleagues in the coming months to head our nation back towards the days of surpluses. Unfortunately, this bill is not a step in that direction. Even though I support the majority of provisions contained in it, I must respectively oppose its passage.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I rise today in support of an amendment to the Defense Authorization Act of 2006, introduced by Senator Warner along with Senator Levin and myself, which would authorize emergency supplemental appropriations for the Department of Defense for domestic hurricane relief and avian flu preparedness. At my request, this amendment also includes $40 million in relief assistance for the people affected by the devastating earthquake that struck northern Pakistan, India, and Afghanistan on October 8, 2005. It would also require the Secretary to submit a report to Congress describing the Department of Defense's humanitarian efforts in the region and assessing the need for further reconstruction and relief assistance. Although I fully support the $40 million authorized in this amendment, I believe the DOD assessment will reveal the need for a substantial increase

in assistance for the approximately 3 million people left homeless by this earthquake.

Initial reports of this disaster described the situation as critical, with over 30,000 people estimated dead and 1 million people in desperate need of assistance. It is my understanding that, based on these initial estimates, USAID has spent approximately $50 million of the $156 million that the United States pledged in humanitarian assistance to South Asia. In addition, the U.S. military has been allocated $56 million of this pledge to support logistical and other military relief efforts, and $50 million of this has already been spent. As of November 9, the Department of Defense had more than 900 personnel providing relief and reconstruction support. DOD has flown more than 1,100 helicopter missions delivering 2,700 tons of relief supplies and evacuated over 8,200 casualties from the affected area. In addition, the 212th Mobile Army Surgical Hospital has established a unit in Pakistan and has 36 intensive care unit beds, 60 intermediate minimal care beds, and 2 operating rooms. This unit has performed valiantly, having completed more than 100 surgeries and treated 1,200 nonsurgical patients.

While I fully support these efforts, it has become clear that this disaster is much larger than what was first assumed. The United Nations is now reporting that ``the unfolding picture reveals levels of human and economic devastation unprecedented in the history of the subcontinent.'' In Pakistan alone, approximately 80,000 people have died, half of whom were children. Nearly the same amount of people are injured, with both numbers expected to rise. This region is home to 5 million people scattered across this mountainous area, and with a harsh winter quickly approaching, the situation has the potential to become much worse.

The earthquake destroyed most hospitals, schools, and government buildings, and hundreds of towns and villages in the region have been completely wiped out. Most roads and bridges have been completely destroyed, and the 900 aftershocks have blocked the remaining roads by landslides. Tens of thousands of people are still completely cut off from any form of assistance. According to the United Nations, over 2 million people require life-saving assistance, including basic necessities like food, water, and medicine. In addition, approximately 3 million people lack adequate shelter at a time when temperatures are consistently below freezing and growing colder. There is now growing concern that the death toll could quickly double if increased aid is not provided immediately.

The U.N. has increased its appeal for aid to $550 million for the next 6 months of operations, and it is estimated that disaster relief and reconstruction may cost up to $6 billion over the long term. In the near term however, I believe it is critical that we do all we can before the Thanksgiving recess to help these people as they struggle through the winter months. It is also important that if we are truly committed to changing how the United States is perceived in a region which is predominantly rural, poor, and Muslim, we must be willing to demonstrate America's compassion and generosity in this time of urgent need. To this end, I urge my colleagues to support this amendment.

Amendment No. 2577

Mr. President, last year the Supreme Court said that Federal courts have authority to consider petitions for a writ of habeas corpus. This would apply to prisoners at Guantanamo. People should not be imprisoned without having the ability to challenge the legality of that imprisonment. That is the history of our common law system and our Constitution as well.

I will yield the remainder of my time to the Senator from Pennsylvania.

Mr. President, I thank my colleague from Michigan for yielding.

Amendment No. 2523 to Amendment No. 2515

Mr. President, I send an amendment to the desk and I ask for its consideration.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, before describing the amendment, let me talk briefly in opposition to Senator Graham's amendment, the underlying amendment that was adopted by the Senate on Thursday, and address some of the mistaken claims that were made last week during the debate on that amendment.

There were a lot of statements made last week. It is important to be clear about what the Graham amendment does. The amendment, as drafted, as voted on last week in the Senate, would overrule a Supreme Court case issued earlier this year that recognized the longstanding right to file a petition for habeas corpus. This right is absolutely fundamental. It is the right of an individual who is being detained by the executive branch of our Government to question the legality of that person's detention.

Contrary to what Senator Graham has said, I do not believe we are giving prisoners new rights in the amendment that I just sent to the desk or in the underlying bill. I believe we need to keep in place the rights that have already existed, that currently exist, and that the Supreme Court has recognized. We need to prevent the courts from being stripped of the authority they have and have always had.

Let me take a moment to address the notion that we should not care about these individuals because these individuals are terrorists. Frankly, I have no doubt that some of the individuals being detained at Guantanamo are a threat, and it is for this reason I have never advocated that we release these prisoners. But we need to recognize that not all of these prisoners are necessarily terrorists in the sense that we are debating that here.

There is a January 2005 Wall Street Journal article stating:

American commanders acknowledge that many of the prisoners

shouldn't have been locked up here in the first place because

they weren't dangerous and didn't know anything of value.

The article also quoted BG Jay Hood, the commander at Guantanamo, saying:

Sometimes, we just didn't get the right folks.

The deputy commander, GEN Martin Lucenti, was also quoted as saying:

Most of these guys weren't fighting. They were running.

My point is simple. It is reasonable to insist that when the Government deprives a person of his or her liberty--and in this case for an indefinite period of time--the individual have a meaningful opportunity to challenge the legality of their detention and challenge whether they are being wrongfully detained. This is not a radical proposition I have enunciated. It is enshrined in our Constitution. It was recently reaffirmed by our own Supreme Court in the Rasul decision.

That brings me to the second point. Last week, Senator Kyl compared challenges by Guantanamo prisoners to a frivolous prisoner lawsuit filed by an inmate in Arizona who was unhappy

with the type of peanut butter he was being served at his meals.

Let's be clear. We are not talking about depriving a person of their right to eat a certain type of peanut butter. We are talking about individuals challenging their indefinite imprisonment. If a claim is filed that is frivolous, a court can simply refuse to hear the claim.

We are also not talking about suits against U.S. soldiers. There were statements made in last week's debate about ``we don't want these prisoners going and suing our soldiers.'' There is nothing in what I am proposing or what is currently in place that permits that. We are talking about suits challenging the legality of a person's imprisonment by our own Government. The right to challenge the legality of one's detention by the Government is one of the most fundamental human rights, the right to be free from being unlawfully detained by the Government.

It was also argued, last week, that by refusing to overrule the Rasul decision, which was issued by our Nation's highest Court this last year, we are giving Guantanamo prisoners access to rights that even our own soldiers do not enjoy.

Last week, Senator Graham asserted:

Here is the one thing I can tell you for sure as a military

lawyer. A POW or an enemy combatant facing law of armed

conflict charges has not been given the right of habeas

corpus for 200 years because our own people in our own

military facing court-martials, who could be sentenced to

death, do not have the right of habeas corpus. It is about

military law. I am not changing anything. I am getting us

back to what we have done for 200 years.

Frankly, that statement is completely an incorrect representation of what the Graham amendment does. If a U.S. soldier is detained for committing a crime, then that soldier is charged, provided an attorney, and tried pursuant to the Uniform Code of Military Justice. Military personnel can challenge a court-martial conviction by filing a writ of habeas corpus in a U.S. district court pursuant to 28 USC 2241. Cases such as Dodson v. Zeliz, which is a Tenth Circuit decision in 1990, demonstrate that they are provided such habeas corpus relief or the opportunity to file for habeas corpus.

One could also look at CPT Dwight Sullivan's article, ``The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases,'' in the Military Law Review, from 1994, to see that U.S. servicemen are also allowed to seek habeas review in death penalty cases.

Mr. President, I ask unanimous consent that a letter sent to me by the chief defense counsel for the Office of Military Commissions, COL Dwight Sullivan, that flushes out these points, be printed in the Record at the conclusion of my remarks.

With regard to these Guantanamo prisoners, the administration has refused to apply the laws of war, and only a handful of the 500 prisoners held at Guantanamo have been charged. None have been tried as yet, and it is unreasonable to say that these prisoners are being granted more rights than our military personnel.

I would also like to take a moment to read to you the names of some of the many people who oppose the Graham amendment: John Hudson, a former Judge Advocate General of the Navy, has written to me indicating his strong opposition; John Gibbons, a former Nixon appointee who served on the Third Circuit Court of Appeals; Eugene Fidell, the president of the National Institute of Military Justice; Dwight Sullivan, the chief defense counsel for the Office of Military Commissions. And I have a long list of other distinguished former officials of our military. They have joined, and I will enter letters they have given to me as part of the Record in a moment.

These leaders have dedicated their lives to fighting for and preserving our freedom, democracy, human rights, and respect for the rule of law. They oppose the Graham amendment because they see it as contrary to the values and rights that the men and women of our armed services have fought for.

I have no doubt that some of my colleagues are concerned that if they vote against the Graham amendment, they would face 30-second attack ads accusing them of being soft on terrorism. But this is not about our resolve to defeat terrorists. This is about our resolve to maintain in place the legal protections on which our country was established. These are hard decisions. They are tough votes. This is the Senate. We have taken an obligation to uphold the Constitution of the United States, even in times of war.

The amendment I offer would maintain the right to seek a meaningful judicial review. Specifically, the amendment would allow individuals-- any individual--to seek habeas review but would provide that the U.S. Court of Appeals for the District of Columbia Circuit would have exclusive jurisdiction to hear these claims. It would also limit the ability of a court to consider claims regarding one's living conditions, such as whether they were given peanut butter of a particular type or access to particular DVDs or whatever other frivolous claim might be envisioned. It would, however, allow a person to seek review regarding whether he or she is being unlawfully imprisoned. If a court determines that the detention is lawful, the court can simply deny the petitioner's application.

There are good provisions in the Graham amendment, but there are also some extremely problematic sections. Both the chairman and ranking member of the Judiciary Committee argued on the Senate floor, last Thursday, that this is an issue that needs careful consideration before the Senate Judiciary Committee. Unfortunately, it appears this proposal may have the votes to move forward.

The amendment I am offering will keep in place the necessary protections in our Constitution and in our common law, and it will also take the necessary steps to ensure there is a proper and expedited procedure for these proceedings.

Mr. President, let me, briefly, before I yield the floor, call my colleagues' attention to some of these letters that I think are extremely important and make the case extremely well. I have previously alluded to the letter I received from COL Dwight Sullivan, U.S. Marine Corps Reserve, Chief Defense Counsel for the Office of Military Commissions. This is the office that was established in the Department of Defense to defend people who are charged by military commissions.

Colonel Sullivan goes step by step through the various statements that have been made in support of the Graham amendment and refutes those contentions at every step.

I also have a letter from the National Institute of Military Justice, written by Eugene Fidell. Let me read it to my colleagues:

On behalf of the National Institute of Military Justice

(and as a retired Lieutenant Commander in the U.S. Coast

Guard Reserve), I am writing to express NIMJ's strong

opposition to Senator Graham's amendment to the Defense

Authorization Bill, withdrawing federal court authority to

grant writs of habeas corpus on the petition of non-citizens

in military custody as enemy combatants.

The proposed amendment would sanction unreviewable

Executive detention that cannot be harmonized with our

Nation's longstanding adherence to the rule of law. Military

detention without due process is antithetical to our

fundamental values, values that our men and women in uniform

put their lives on the line to protect.

The practical effect of the amendment would be to validate

actions by non-democratic countries around the world. Some of

these countries may try to jail our citizens (including but

not limited to GIs) on trumped-up grounds and then deny them

access to judicial forums in which they might at least try to

gain their freedom or fairer treatment. We should not take a

step we would be unwilling to see others apply to our fellow

citizens. We disable ourselves from objecting to flagrant

lawlessness elsewhere when we shut the doors to our courts,

which are the jewel in the crown of our democracy.

I will only add that oftentimes when NIMJ considers taking

a position on a matter of public policy our directors and

advisors have a range of views. That is one of our strengths

as an organization. On this one, we are emphatically of one

mind.

I also have letters from the Brennan Center for Justice in opposition to the Graham amendment, from the Franklin Pierce Law Center in opposition to the amendment, and a letter signed by nine former generals and admirals in the military indicating their opposition, also signed by Scott Silliman, former U.S. Air Force Judge Advocate, indicating their strong opposition to the Graham amendment unless it is changed as my amendment would change it.

I ask unanimous consent to print those letters in the Record.

How much time remains of the 15 minutes I am allotted?

I retain that minute and yield the floor.

Mr. President, let me use the remaining 1 minute I have and then I will ask permission to speak for another 4 minutes, if possible.

Let me say that I think the Senator obviously hasn't read the amendment I have offered. The amendment I have offered makes it very clear that the Federal court is available only to hear claims regarding whether the determination of the combat status review tribunal is consistent with the procedures and standards specified by the Department of Defense, whether the status determination was supported by sufficient evidence, and to determine the lawfulness of the detention of the alien. They are not permitted under my amendment to consider whether the DVDs are the ones that the prisoner would like. They are not permitted to consider whether the peanut butter is the peanut butter the prisoner would like, or anything else.

To try to trivialize this debate by suggesting that is what we are talking about I think does a disservice to the issue.

Mr. President, I ask unanimous consent to speak for an additional 4 minutes as if in morning business.

I appreciate my colleague's courtesy.

Mr. President, first let me say we have a real difference of opinion here as to what has been the law of this land for the last couple hundred years.

The Senator from South Carolina continues to say we have never recognized a right for people in conflict, armed conflict, to petition for habeas corpus. The truth is we have. The truth is the Supreme Court has--in the Ex parte Quirin case, the In re Yamashita case. There are a variety of cases where this has been the case. The Supreme Court has repeatedly held that enemy combatants can pursue Federal habeas litigation to challenge that you are susceptible to trial by military commission. It is very clear that that right has been there.

All I am trying to do is to be sure we do not strip the courts of the right to consider these types of petitions. If we strip the courts of the right to consider petitions in these cases, how many other areas can we find where we will deny people within the jurisdiction of our Federal court system the right to proceed with a petition for habeas corpus in the Federal judiciary?

This is the most fundamental right any of us can conceive of. When you start talking about imprisoning a person and not allowing that person any opportunity to have a court review of the legality of that imprisonment, you are talking about the most fundamental of rights.

Unfortunately, that is what the amendment by Senator Graham would do. It would deny that right. It would be an unfortunate act by this Congress. It would be an extraordinary act by this Congress to do that, and I believe would be very contrary to the traditions this country was built on. I strongly urge my colleagues to support the amendment I have offered which maintains the right to petition for habeas corpus on the part of everybody because there is nothing in our Constitution, there is nothing in the history and tradition of this country that says this is only available for citizens. It is available for all individuals who become imprisoned within the confines of the United States and within the jurisdiction of the Federal courts. Our Department of Defense tried to locate these prisoners outside the jurisdiction of Federal courts and put them in Guantanamo and it argued to the Federal court they are now outside your jurisdiction, and the Federal court said, no, they are not. The United States Government is the sovereign in Guantanamo. We have a 100-year lease on that property, we operate that facility, and we are responsible for the treatment of those individuals.

So the Federal courts have authority to look at whether the detentions that occur there are legal or illegal. That is the law as it has always been in this country. That is the law today. We should not change that by allowing the Graham amendment to remain as it is. We need to adopt a refinement of that amendment, an improvement of that amendment, and that is the second-degree amendment I have offered at this point.

Mr. President, I will yield the floor. I think my colleague wants to respond.

Mr. President, today we are voting on the conference report for the 2006 Energy and Water Development appropriations Act. On the whole, the conference report contains many items well worth supporting, including funding for a number of important water and energy projects in New Mexico.

Regardless of my support for the report as a whole, I would like to take this opportunity to express my strong concern with a provision inserted into the legislation without any debate, and which I believe represents a setback to sound public policy.

Section 121(b) of the bill is a very short provision addressing endangered species issues in the Middle Rio Grande in New Mexico. It amends an existing law enacted in Public Law 108-447 which holds that a March 2003 biological opinion addressing water operations in the Middle Rio Grande fully satisfies the requirements of the Endangered Species Act, ESA. I had supported the original provision because a thorough review of that biological opinion indicated that it was based on a credible interpretation of the best available science and contained re- openers that ensured the biological opinion would be amended if it failed to meet its objectives.

Section 121(b) goes much farther and provides legal protection to any amendments to the 2003 biological opinion. The result of section 121(b) is that Congress will now take the unprecedented step of providing legal protection to the environmental analysis and decisions of a Federal agency before we know what the analysis looks like, or have a chance to assess the impacts of any decisions. The ESA requires that any analysis be based on, and reflect the use of, the best available scientific and commercial data. Section 121(b) undermines that requirement and gives the U.S. Fish & Wildlife Service a blank check in issuing a modified opinion that can have far-reaching impacts to both the environment and the rights of water users in the Middle Rio Grande basin.

There are a variety of scenarios that could develop over the next decade necessitating significant changes to the biological opinion. I am very uncomfortable with providing the U.S. Fish and Wildlife Service, or any Federal agency for that matter, unchecked power when it has the potential to significantly impact the rights and interests of so many people. Looking at the bigger picture, I am equally disturbed that Congress, by disallowing any opportunity to challenge a Federal agency, is now effectively casting aside the use of the best available science as the standard by which environmental analysis and subsequent decisions should be measured. I don't think this represents good public policy.

Finally, over the last few years, there has been a commitment by a diverse group of interests in the Middle Rio Grande region to cooperate on creative approaches to address endangered species needs. The goal of this effort is to balance the need for environmental restoration with a recognition of the need to protect the interests of water users who are dependent on the limited supply provided by the Rio Grande. This group, which includes relevant Federal, State, and local entities, is capable of developing workable solutions to any future developments that may necessitate amendments to the 2003 biological opinion. I hope that section 121(b), by eliminating the ability to hold the Federal agencies to an objective standard, does not undermine the efforts of this group or its collaboration on these issues.

Mr. President, I thank my colleague from Michigan. I rise to speak in opposition to this amendment as currently drafted. After the Senate deals with this amendment, I will offer a second- degree amendment to remove the problematic language that I believe is included. First, I commend Senator Graham for taking on the issue of treatment of these prisoners in Guantanamo. He did work with Senator Levin, myself, and others, I am sure, to try to improve the procedures for processing prisoners at Guantanamo. We agreed upon some language. We included that language. He proposed it and it was included in the Defense appropriations bill. That was agreed to. Unfortunately, here he has taken that language and he has modified it. He has added to it. His additions are a terrible mistake.

His amendment now also contains a provision that strips aliens at Guantanamo of any right to seek habeas corpus in our Federal courts. The right to file a petition challenging the legality of a prisoner's detention was specifically recognized by our Supreme Court in the Rasul case. Considering that many prisoners have been held there for over 3 years, that the administration has argued they can be held there indefinitely, it would be a major mistake for us to remove the very limited judicial review the Supreme Court has recognized that these prisoners still have.

The writ of habeas corpus, which is what his amendment would eliminate, which is in essence a right to petition the court to review the legality of one's detention by the Government, is at the core of civil rights in this country. It came originally from the Magna Carta. Our Founding Fathers wrote this into our own Constitution. In the first article of the Constitution, in Section 9, it says:

The privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion and Invasion the

public Safety may require it.

Our Founding Fathers wanted to ensure that the Government could not simply imprison people at will and that there was judicial review that would be available as a check on that executive power.

When the executive branch detains or imprisons a person within the jurisdiction of the United States--and that is all we are talking about here, detaining someone within the jurisdiction of the United States-- the Government, upon the issuance of a writ by a court, must show cause why that person is being detained. This right is enshrined in our own Constitution. It would be a terrible mistake for us to suspend that right as an amendment on a Thursday afternoon to the Defense authorization bill.

This is an extremely serious issue. There have been no hearings on this issue in the Judiciary Committee. I see the chairman of the Judiciary Committee on the Senate floor this afternoon. If we are going to seriously consider suspending the privilege of habeas corpus, of filing a petition for habeas corpus, the Judiciary Committee should be the committee that considers that type of a proposal and has hearings on it.

There have been no hearings in the Armed Services Committee. It would be a terrible mistake for us to do this sort of as a by-the-way kind of amendment on a Thursday afternoon as we are preparing to leave for the weekend.

Through our history, Congress has suspended the ``great writ,'' as it has been called in Anglo jurisprudence for centuries now, only on very few occasions. Abraham Lincoln suspended the writ during the Civil War in order to imprison suspected southern supporters. During the Second World War, President Roosevelt unilaterally suspended the writ in order to imprison more than 70,000 Japanese Americans in prison camps. This Congress has since gone on record indicating its regret at that action taken by this Government.

Today, the executive branch has once again asserted extraordinary powers. The President has argued that he has the authority to indefinitely imprison anyone, whether a citizen or noncitizen, that he deems to be an enemy combatant, and the judicial review of such decisions is not needed or appropriate.

It is in times such as these that our Founding Fathers envisioned that habeas corpus would be preserved. According to the Wall Street Journal article earlier this year, an estimated 70 percent of individuals held at Guantanamo were wrongfully imprisoned. BG Jay Hood was quoted as saying in that article: Sometimes we just did not get the right folks.

This is not the time Congress should suspend the writ and grant the executive branch additional unchecked authority.

The administration has gone to great lengths to avoid the legal restraints

that normally would apply under our legal system. They have argued that the laws of war are not applicable because we are fighting a new type of enemy. They have argued the criminal laws are not applicable because we are fighting a war. The administration position is that there is a rights-free zone where the President has complete authority to detain and hold individuals indefinitely.

Within this framework, the administration argues that the prohibition on torture is an unnecessary barrier. They argue that the Geneva Conventions are outdated, that constitutional rights do not exist for this group of individuals. In essence, they argue that the rights of these prisoners, if any, are at the discretion of the President.

According to press reports, in deciding where they wanted to hold suspected terrorists, the administration has gone to enormous lengths to avoid putting them some place where they would be under the jurisdiction of our courts. They considered Soviet-era detention centers in Eastern Europe, secret facilities in Thailand, Egypt, Jordan, and Zambia. They finally settled on putting them at Guantanamo in Cuba because, as the Secretary of Defense said, it was the least worst place. It also had the advantage, they thought, of giving them a plausible argument that they were outside the reach of the U.S. courts on the theory that since this was Cuban territory, if these prisoners had objections or problems they could always seek redress from the Cuban Government. That was the argument our own Department of Justice made in our courts.

Of course, the Supreme Court disagreed in the Rasul case and held that Guantanamo prisoners do have the right to challenge the basis of their detention in U.S. Federal court.

As I understand it, the number of prisoners facing trial today is about 10. That is 10 out of the 500 prisoners who are being held there. The rest are being held without charges. There is no prospect for them being charged in the near future that I am aware of.

The President and the administration in this country have a credibility problem with regard to our detention policies. The administration says one thing regarding its position on torture. We appear to do something different. We all watched as the President toured Latin America last week and reassured our allies at every stop that, in fact, it is not the policy of our Government to engage in torture. We are on the defensive on an issue that should not be an issue in this country.

We can effectively combat terrorism without resorting to these types of techniques, and we can do so in a manner consistent with American values. Our Nation's longstanding commitment to the respect of law, to the rule of law, and basic human rights is founded on a set of values that distinguishes us from terrorists and it is important that we keep those principles and those values intact as we pursue this war on terrorism.

This is not the time to back away from the basic principles this country was founded on. Considering the ambiguity that exists with regard to the legal status of so-called enemy combatants and the revelations that have come out regarding secret prisoners, irregular rendition, torture and abuse, I believe it would be a tragic mistake to further limit the ability of our courts to provide the minimal judicial review that has been afforded thus far. The world has come to doubt our Government's commitment to the rule of law as a result of many of the actions I have recounted. Let us not provide an additional basis for those doubts by stripping our Federal courts of the right to consider petitions for habeas corpus.

I urge that this amendment be defeated. If appropriate, after consideration of this amendment, I have an alternative amendment which would enact the first three sections of Senator Graham's amendment as we passed them on the appropriations bill but would delete the portion that strips the Federal courts of jurisdiction.

I yield the floor.

Mr. President, I would like to ask a question for clarification. I anticipated offering a second-degree amendment, for which I understood I would be entitled to 30 minutes equally divided. I want to make sure I have a right to argue that amendment and have my 30 minutes of debate on my second-degree amendment before we wind up agreeing to a 4:30 vote.

That will be an acceptable result.

Mr. President, let me speak very briefly. I wanted to clarify a couple of points. The Senator from South Carolina has indicated that instead of people having a right to challenge the legality of their detention through a writ of habeas corpus, we are going to give them the right to challenge the legality of their detention in the Court of Appeals for the District of Columbia. That is not what his amendment says. His amendment says the Court of Appeals for the District of Colombia shall have a limited scope of review. The jurisdiction of the U.S. Court of Appeals for the District of Columbia on any claims with respect to an alien under this paragraph shall be limited to consideration of whether the determination of the combatant status review tribunal regarding such alien was consistent with such procedures and standards as specified by the Secretary of Defense.

The very limited scope of review that he would provide to the court of appeals would just say you can look to see whether they, in fact, followed their own procedures--the procedures set out by the Secretary of Defense--not whether the status, or whether the detention of that individual is legal. That is the question that the writ of habeas corpus gets to--a question of whether, in fact, a person is being legally held by the government.

To say that we are going to give the Court of Appeals for the District of Columbia authority to look at whether the Department of Defense followed their own procedures does not, in fact, solve that problem.

I think that is clearly a clarification that needs to be understood by everyone.

The other point that I would make is it does not matter, frankly, what people put in these petitions. I heard my colleagues--both the Senator from South Carolina and then the Senator from Arizona--say we have these outrageous requests being made that they didn't like the peanut butter, they don't like the television they are having to watch. It doesn't make any difference what they put in these petitions. The writ of habeas corpus which

the Senator from South Carolina would have us eliminate as to these individuals is a procedure which says the court can determine whether you are legally being held, not whether you are given the right peanut butter, not whether you are being allowed to see the right DVDs, and there is no obligation of the court to grant any of these petitions. There is no obligation of the court to hold hearings on any of these petitions.

All we are saying is if a court receives a petition from an individual who is being held prisoner and determines that there is a problem or a potential problem, that court does have authority to go ahead and issue an order which is a writ saying bring that individual here and justify the imprisonment of this individual.

This is the bedrock of our constitutional system. This is the bedrock of our legal system which goes back long before the Founders even wrote the Constitution. It would be a very tragic mistake for us, on a Thursday afternoon, in an amendment to the Defense authorization bill, to dispense with this for this or any group of individuals.

I urge my colleagues to resist the amendment, as I did before. If the amendment is defeated, the second-degree amendment which I would offer contains the first three sections of the amendment that the Senator from South Carolina has offered. That is the portion of the amendment which we agreed to for the Defense appropriations bill and that is the part which is appropriate for us to enact again as part of this bill, if the Senate desires to do so.

I yield the floor.

Mr. President, could I clarify, how long is this discussion going to take because I know this is set for 4:45.

Mr. President, the concern is, we still need a few minutes to complete the debate on the Graham amendment and my second degree. I would hate to see that time all used up while they are discussing this other amendment.

Mr. President, I yield 5 minutes to the Senator from Michigan.

Go right ahead.

How much time remains, Mr. President?

And how much on the side of the proponent?

I yield 5 minutes to the Senator from Michigan.

I yield whatever time the Senator needs.

Mr. President, how much time remains?

Mr. President, let me use the final minute of this debate to clarify for my colleagues what we are doing here. There are four parts to the amendment that the Senator from South Carolina has offered. There are parts A, B, C, and D. Parts A, B, and C are perfectly acceptable and provisions that I support and Senator Levin supports. They were worked out. They were added to the Defense appropriations bill.

The first deals with procedures for status review of detainees. The second sets out what those procedures would generally provide. The third is a report on modification of procedures that would be made to the Congress.

It is the last part, this section D, judicial review, that is such a terrible mistake, in my opinion. It has us, on a Thursday afternoon as part of a debate on a Defense authorization bill, making a very major change that is within the jurisdiction of the Judiciary Committee. The Judiciary Committee should be considering any effort by the Congress to limit or prohibit or suspend the writ of habeas corpus. We should not be trying to do that sort of ``oh, by the way, let's do this.''

I urge the defeat of the Graham amendment. Assuming it is defeated, I will not have to offer a second-degree amendment. If it is adopted, I will offer a second-degree amendment to retain the first three portions.

Mr. President, I yield the floor.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, let me speak briefly in opposition to this amendment.

This amendment contains a provision that I think is a very major mistake. It essentially denies all courts anywhere the right to consider any petition from any prisoner being held at Guantanamo Bay. In my view, it is contrary to the way the court decisions have come down already. It is an extraordinary step for this Congress to be taking as an amendment to the Defense bill. This is an issue that should be dealt with in the Judiciary Committee. Senator Specter has spoken against the amendment. Senator Levin has spoken against the amendment. Senator Leahy has spoken against the amendment. It is something that requires hearings. It is a very important issue, and we should not be dealing with it here on a late evening on Thursday as part of this authorization bill.

Mr. President, I do not intend to call for a vote on my amendment at this time. We can proceed to the next item on the unanimous consent request.

That is correct. I will not offer the amendment at this time so we can proceed to the remainder of the votes that are scheduled.

Mr. President, as I understand the unanimous consent agreement we have entered into, it is still possible to file second- degree amendments and to propose second-degree amendments to the Graham amendment even after we take the series of votes that are scheduled tonight. And it is not my intent to go to a vote on my amendment at this time so we can proceed to the remainder of the votes.

Mr. President, I am submitting a Senate resolution today with Senators Rockefeller, Reed, Clinton, Murray, Baucus, Akaka, Mikulski, Corzine, Lautenberg, and Dodd that does three things: 1. Explains the importance of Medicaid to children; 2. Explains the consequences of the various provisions in the House budget reconciliation bill that will negatively impact the health and well- being of children's health; and 3. Expresses the Sense of the Senate that the conferees for the budget reconciliation bill shall not report back language that has negative consequences for the health and well- being of children.

This resolution highlights the many ways in which the House of Representatives budget reconciliation bill affects the health of low- income children across this Nation. According to the Congressional Budget Office (CBO), the House budget reconciliation package increases cost-sharing placed on low-income Medicaid beneficiaries, even while reducing health services by $6.5 billion over 5 years and an astounding $30.1 billion over 10 years.

In sharp contrast, the Senate budget reconciliation bill includes only one provision--the targeted case management reduction of $750 million over 5 years--that could negatively affect young Medicaid beneficiaries.

For children, the impact would be devastating. Medicaid covers more than 27 million children--or almost one in four--American children. Medicaid also covers more than one-third of all the births and health care costs of newborns in the United States each year.

In spite of the importance of Medicaid, the House budget package increases cost-sharing for all children who rely on it for prescription drugs and emergency room services. The bill also allows States to impose premiums for the first time under Medicaid for children's coverage and deny children coverage even if their family cannot afford to pay the premium or other cost-sharing.

The House budget bill also allows States to eliminate the Early and Periodic Screening Diagnosis and Treatment (EPSDT) benefit rules that are so critical to the health of children with special health care needs or disabilities. Benefits that could be lost include: comprehensive developmental assessments, assessment and treatment for elevated blood lead levels, eyeglasses, dental care, hearing aids, wheelchairs and crutches, respiratory treatment, comprehensive mental health services, prescription drugs, and speech and therapy services.

In short, the vast majority or three-fourths of the savings in the House bill come at the expense of low-income Medicaid beneficiaries. By CBO's estimate, half of the beneficiaries affected by the increased cost sharing provisions in the House package are imposed on children, and half of those who will lose Medicaid benefits would be children.

Without the Medicaid program, the number of children without health insurance--8.3 million in 2004--would be substantially higher. In fact, the number of uninsured children has dropped

by over one-third of a million children over the past 4 years due in large part to Medicaid and the State Children's Health Insurance Program, or SCHIP.

As Representative Frank Pallone noted, ``Once again, Medicaid has proven to be part of the solution, not the problem. Burdensome cost- sharing requirements and reduced benefits included in the reconciliation package will undoubtedly weaken Medicaid's ability to ensure all of America's children have access to the health care they need.''

Representative Lois Capps of California adds, ``. . . this reconciliation package would allow states to deny critical medical screening, treatment, and follow up care for these children. And it would allow excessive out of pocket costs and premiums which-- experience shows--causes families to lose coverage or fail to get even needed services for children.''

I urge Senators to closely monitor what the House of Representatives is doing with respect to the health and well-being of children in their budget reconciliation bill. Low-income children should not be asked to bear the burden of billions of dollars in budget cuts--cuts that are not even being used to reduce the deficit, but rather to help pay for tax cuts.

There are a variety of reasons that I did not support the Senate's budget reconciliation bill, but even with its imperfections, it is far superior to the House's budget package. If nothing else, it does not contain the types of cuts to children's health that are included in the House bill.

Senators need to know that the House budget package is terrible for the health and well-being of the children in our country.

With that in mind, I offer today's Senate resolution on children's health.

I ask for unanimous consent that a copy of the CBO analysis of the impact that the Medicaid provisions in the budget reconciliation bill passed by the House Energy and Commerce Committee be printed in the Record.

Mr. President, I rise to speak in support of Senator Levin's amendment to create an independent commission to investigate the policies and practices relating to the treatment of what we have come to call detainees but what are, in fact, prisoners being held by the Government.

I am proud to be a cosponsor of that important amendment. I urge my colleagues to support it as well.

Let me say a word, initially, about the use of language. We sometimes use language without focusing on the implications of that language. Unfortunately, in the case of this discussion, we have fallen into the practice of referring to these individuals at Guantanamo and elsewhere as ``detainees.'' Of course, the suggestion that someone is being detained is a lot less onerous or implies a lot less of a taking of that person's freedom than the phrase ``being imprisoned.'' The truth is, these individuals are being imprisoned.

The amendment that Senator Levin has offered would have an independent commission evaluate the current practice of indefinitely imprisoning individuals at Guantanamo without ever charging them with a crime in either Federal court or under a competent military tribunal.

This commission would then report back to Congress and give us recommendations on whether we should change existing law or change policy on this set of important issues. The current practice of holding detainees or prisoners indefinitely, without affording them basic due process rights, has been widely criticized in this country and throughout the world. For a country such as ours that has consistently advocated for the rule of law, the policies of the current administration are nothing short of a major embarrassment.

Since September 11 of 2001, the administration has asserted extraordinary new powers with respect to the imprisoning of individuals suspected of being involved in terrorism. The President has argued that the Government has the authority to indefinitely imprison any person that he, the President, determines to be an ``enemy combatant.'' They have that authority whether or not the person is a U.S. citizen. Of course, our Government has also forcefully opposed any judicial review of the President's determination in that regard.

There are over 500 people who are currently being imprisoned in Guantanamo. Many of these individuals have been held for over 3 years without being afforded the ability to challenge the basis for their detention. The administration has developed a new category of detainee, the ``unlawful enemy combatant,'' and they have argued that neither the laws of war nor traditional criminal laws apply to these individuals. In essence, we have created a new type of prisoner who is unable to seek the protections of the Geneva Conventions or to take advantage of the rights afforded to individuals in this country under our criminal justice system or

under the criminal justice system that applies in our military. Under the current procedures, every Guantanamo prisoner is reviewed by a combatant status review tribunal to determine whether the Department of Defense believes that individual is an ``enemy combatant.'' If a person is found to be an enemy combatant, they may be held indefinitely, although they are entitled to go before an administrative review board once a year to prove that they are no longer a threat. Of the approximately 500 prisoners at Guantanamo, 4 individuals have been charged to date. The remaining 496 or so have not been charged.

Serious concerns have been raised with regard to the rights we are affording these prisoners under the current procedures for processing the prisoners. I have repeatedly raised concerns regarding this approach. I believe that it challenges our historic commitment to the rule of law. I have never advocated that the Department of Defense release these prisoners but, rather, have said that they should be tried in the criminal justice system or they should be tried in the military justice system, but they should be tried somewhere and be given an opportunity to challenge the basis for their detention. I believe it is appropriate to ensure that they do not indefinitely remain in a state of legal limbo and are afforded basic due process rights that allow them to assert their innocence.

Last week, on November 1, there was an article in The Washington Post that highlighted some of the problems that occur when people are imprisoned indefinitely without recourse to any viable legal process. According to the article, there have been 36 attempted suicides at Guantanamo. Clearly, when people are desperate and have no hope, they turn to drastic measures. I ask unanimous consent that article be printed in the Record following my comments.

I strongly believe that due process rights of some sort are at the bedrock of American values and they should not be discarded lightly, due process rights that apply even to individuals who are not citizens of this country. It is disappointing that in the eyes of the world, the United States has drifted from its longstanding adherence to the rule of law. In my view, we have an obligation to the American people to confront these difficult issues, and I believe Congress needs to act in that regard.

Establishing this independent commission to look into these prisoner issues is an important first step. There have been multiple abuse scandals over the last couple of years that have hurt our image abroad and tainted the image of a vast majority of our soldiers who serve with honor and distinction. Now the European Union is investigating news reports that the CIA is holding suspected terrorists in Soviet-era detention facilities in eastern European countries. This is a troublesome development considering the widespread reports that our own Vice President continues to urge that bipartisan legislation passed in this Senate that would prohibit the CIA from using interrogation techniques that amount to cruel and inhuman treatment in these types of facilities be deleted from legislation on its way to the President.

Our own President is in the very awkward position. During his current trip to Latin America, I saw him on television this morning trying to assure our allies in that region that the U.S. policy does not contemplate torture of prisoners. That is a sad day when we are having to publicly reassure our allies of something as basic as that.

It is time that we seriously investigated these issues and came up with policies that the American people feel comfortable with, policies that are consistent with our Constitution and with the values of the American people.

I yield the floor.

Exhibit 1

Guantanamo Desperation Seen in Suicide Attempts

(By Josh White)

[From the Washington Post, Nov. 1, 2005]

Jumah Dossari had to visit the restroom, so the detainee

made a quick joke with his American lawyer before military

police guards escorted him to a nearby cell with a toilet.

The U.S. military prison at Guantanamo Bay, Cuba, had taken

quite a toll on Dossari over the past four years, but his

attorney, who was there to discuss Dossari's federal court

case, noted his good spirits and thought nothing of his

bathroom break.

Minutes later, when Dossari did not return, Joshua

Colangelo-Bryan knocked on the cell door, calling out his

client's name. When he did not hear a response, Colangelo-

Bryan stepped inside and saw a three-foot pool of blood on

the floor. Numb, the lawyer looked up to see Dossari hanging

unconscious from a noose tied to the ceiling, his eyes rolled

back, his tongue and lips bulging, blood pouring from a gash

in his right arm.

Dossari's suicide attempt two weeks ago is believed to be

the first such event witnessed by an outsider at the prison,

and one of several signs that lawyers and human rights

advocates contend point to growing desperation among the more

than 500 detainees there. Lawyers believe Dossari, who has

been in solitary confinement for nearly two years, timed his

suicide attempt so that someone other than his guards would

witness it, a cry for help meant to reach beyond the base's

walls.

Two dozen Guantanamo Bay detainees are currently being

force-fed in response to a lengthy hunger strike, and the

detainees' lawyers estimate there are dozens more who have

not eaten since August. Military officials say there are 27

hunger strikers at Guantanamo Bay, all of whom are clinically

stable, closely monitored by medical personnel and receiving

proper nutrition.

The hunger strikers are protesting their lengthy

confinements in the island prison, where some have been kept

for nearly four years and most have never been charged with a

crime. The most recent hunger strike came after detention

officials allegedly failed to honor promises made during a

previous hunger strike.

Military authorities do not publicly discuss individual

detainees and declined to comment on Dossari. Lt. Col. Jeremy

Martin, spokesman for Joint Task Force Guantanamo, said

yesterday that there have been a total of 36 suicide attempts

by 22 different detainees, including three in the past 20

months. Martin said all detainees are treated humanely and

``any threat of injury or suicide'' is taken seriously.

He added that rapid intervention in suicide attempts has

prevented deaths. No detainee has died at the military

prison, he said.

The protests come amid rising international concern about

the treatment of detainees at Guantanamo Bay. Human rights

organizations and the United Nations have complained about

the lack of access to the detainees and voiced concern about

allegations of physical and psychological abuse, including

prolonged solitary confinement.

U.S. officials are trying to return many of the detainees

to their home countries, but the process has been fraught

with delays and diplomatic wrangling.

Three U.N. experts said yesterday that they would not

accept a U.S. government invitation to tour Guantanamo unless

they are granted private access to detainees, a concession

the U.S. has not been willing to make, citing the ongoing war

on terror and security concerns. Last week, the United States

invited the U.N. representatives on torture and arbitrary

detention to the facility, and the experts said yesterday

that they hope to visit in early December. But they described

their demand for access to the detainees as ``non-

negotiable.''

``They said they have nothing to hide,'' Manfred Nowak,

U.N. special rapporteur on torture, said yesterday at a news

conference in New York. ``If they have nothing to hide, why

should we not be able to talk to detainees in private?''

Colangelo-Bryan said he fears that many detainees would

rather die than be held indefinitely. He said he was shocked

but not surprised by Dossari's Oct. 15 suicide attempt, given

his ``horrible ordeal.''

He said he knows only that medical personnel apparently

were able to revive Dossari, he had surgery and is in stable

condition.

Detainees ``see it as the only means they have of

exercising control over their lives,'' Colangelo-Bryan said

in publicly describing the incident for the first time.

``Their only means of effective protest are to harm

themselves, either by hunger strike or doing something like

this.''

Martin said claims that hunger strikers are near death are

``absolutely false.'' He said the latest protest began on

Aug. 8 and at one point had 131 participants but is now much

smaller.

``This technique, hunger striking, is consistent with the

al Qaeda training, and reflects the detainees' attempts to

elicit media attention and bring pressure on the United

States government,'' Martin said. The military also has long

argued that terrorist groups have instructed fighters to

invent claims of abuse if incarcerated.

Dossari has told Colangelo-Bryan that he has endured abuse

and mistreatment on par with some of the worst offenses

discovered at any U.S. detention facility over the past four

years. In declassified notes recording the meetings, Dossari

describes abuse and torture that stretches back to his arrest

in Pakistan in December 2001, through the time he was turned

over to U.S. forces in Kandahar, Afghanistan, and ultimately

to his stay in Guantanamo Bay.

Dossari, 26, said U.S. troops have put out cigarettes on

his skin, threatened to kill him

and severely beat him. He told his lawyer that he saw U.S.

Marines at Kandahar ``using pages of the Koran to shine their

boots,'' and was brutalized at Guantanamo Bay by Immediate

Response Force guards who videotaped themselves attacking

him.

The military says the IRF squads are sent into cells to

quell disturbances.

Dossari told his lawyers that he had been wrapped in

Israeli and U.S. flags during interrogations--a tactic

recounted in FBI allegations of abuse at Guantanamo--and said

interrogators threatened to send him to countries where he

would be tortured.

Dossari maintains that he is not connected to terrorism and

does not hate the United States. A fellow detainee said that

he saw Dossari at an al Qaeda training camp, his lawyer said.

Colangelo-Bryan is a private New York lawyer with the

Center for Constitutional Rights, which represents some of

the detainees. The group plans a ``Fast for Justice'' rally

today in Washington to bring attention to the Guantanamo Bay

hunger strike.

Colangelo-Bryan said Dossari has tried to commit suicide

before. Prolonged solitary confinement has given him almost

no contact with others and access to only a Koran and his

legal papers.

``In March, he looked at me in the eye and said, 'How can I

keep myself from going crazy?''' Colangelo-Bryan said.

I suggest the absence of a quorum.

Madam President, I would like to talk about the Enzi- Kennedy amendment to S. 1932, the deficit reduction bill. We all want to do the right thing and help the hundreds of thousands of students displaced by Hurricane Katrina. Just a few weeks after the tragic events surrounding Hurricane Katrina, I came to the floor of the Senate and offered an amendment to the Commerce-Justice-State appropriations bill to assist students and schools impacted by Hurricane Katrina. I also cosponsored a bill with Senators Enzi and Kennedy, S. 1715, to assist schools and students impacted by Katrina. But I have tremendous concerns about the amendment before us today.

This amendment sets up an unworkable mechanism to assist displaced students attending private schools. It requires states to funnel Federal dollars to local school districts to establish private accounts to pay the tuition to private schools. In contrast, current

law provides a reasonable mechanism for local school districts to assist students attending private schools, called equitable participation, without establishing a national voucher program. I support efforts to use equitable participation to assist private schools serving these displaced students. Unfortunately, this amendment fails to use this mechanism. At the same time, it establishes the first national voucher program. Accordingly, along with educators, school boards, principals, teacher unions, and many civil rights and faith- based organizations, I must oppose this provision.

Mr. President, this amendment deals with the fact that under current law, 31 of our States are seeing significant cuts in Federal support for Medicaid because of a reduction in the percentage the Federal Government will pay, the FMAP, as we always refer to it, the Federal matching rate. Alaska is held harmless in the underlying bill. They will not suffer a cut. My amendment would say that for the other 30 States, the cut should not be more than five-tenths of 1 percent next year. The amendment is more than offset. In fact, the offset is supported strongly by Secretary Leavitt's Medicaid Commission. It is supported strongly by the National Governors Association. It would save the States over $3 billion if this offset is agreed to as part of this amendment.

I urge my colleagues to support the amendment. This map shows the States in red that would get a more fair share of Medicaid funds, if the amendment passes.

Mr. President, I call up the modified version of the amendment, and I ask unanimous consent that that be the pending amendment.

Mr. President, I move to reconsider the vote.

Mr. President, I thank the Senator from Washington for her leadership on this issue and for yielding me some time.

I have long opposed the leasing and development in the Arctic Refuge for several reasons related both to energy policy and to environmental concerns. I have said many times that the most compelling reason for not opening the Arctic Refuge is that it would do very little to further our national energy security and will do nothing to address short-term energy prices or needs. There will not be any production from the Arctic Refuge for an estimated 10 years. The Energy Information Agency estimates that production from the Arctic Refuge would, at its peak, reduce our reliance on imports by only 4 percent, from 68 percent reliant to 64 percent. This would not happen until the year 2025.

I have a chart that puts things in some perspective. It talks about total oil demand. This line is 2005, today, total oil demand. As we can see, it is rising, has been rising, is expected to continue to rise. The next line is transportation demand. You can see the biggest part of our total demand is transportation demand. Then domestic production has been declining in this country since the early 1970s. It is on the decline now. It is expected to continue declining. If this provision becomes law and we go ahead with leasing and development of ANWR, there will be a slight uptick as we get into 2015 and that period. There will be a slight uptick in domestic oil production. That is the red line. What we see is that there will be a slight increase due to the opening of ANWR but a very slight increase.

I am disappointed that this issue is being taken up as part of a budget reconciliation bill. The policy issue is of great significance and complexity and cannot be adequately handled on a budget reconciliation bill. I also have concerns and questions about the legislation that is included in the reconciliation bill. This bill would open the refuge to oil drilling. It would do so with less protection than for any other wildlife refuge or other Federal land that is currently subject to oil and gas leasing. The only mention of the environment is a vague directive that the leasing program be ``environmentally sound.'' That is contradicted by other parts of the mark that contain broad waivers of environmental laws.

For example, the bill deems a 1987 environmental impact statement to be adequate under the National Environmental Policy Act, an 18-year-old environmental impact statement. It is deemed adequate for purposes of issuing regulations to implement the leasing program and other preleasing activities. This is despite the fact that there has been significant new information that has become available over the last 18 years related to the Refuge, related to its resources. The bill contains no requirement for public participation. It does have ambiguous new provisions that appear to limit judicial review. Even if one decided to go ahead with leasing this area, in my opinion the bill provides an inadequate framework and program within which to do that. There is no minimum royalty rate to be paid by oil companies provided for in this bill. There are no enforcement provisions. There are no required inspections. There is no limit on the size or the duration of the leases, no requirement that operational plans or surface-disturbing activities be approved, no requirement that oil companies post bond to ensure compliance with lease requirements, and there is no requirement that the land be reclaimed.

And there is no requirement that the land be reclaimed or facilities removed.

Mr. President, these are fundamental components of a leasing statute. Members of this body are speaking out today about how we ought to impose windfall profits taxes on the oil and gas

industry. At the same time we are doing that we are proposing a series of provisions that put virtually no requirements on them. Perhaps the proponents for opening the refuge have omitted some of these elements because they recognize that including them would cause this to run afoul of the Budget Act. That is a very good reason why this kind of important issue is not intended to be dealt with as part of a budget reconciliation bill.

Mr. President, for these reasons I support the amendment of the Senator from Washington. I commend her for her leadership on this issue. I ask my colleagues to join me in voting in favor of the amendment. Opening the Arctic Refuge is not a necessary component of our national energy policy. We can do better in crafting a solution to the current problems, and we need to do that.

Mr. President, I yield the floor.

Mr. President, I appreciate the opportunity to speak. Before I do, I yield 2 minutes to my colleague from North Dakota.

Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, the amendment I am offering today is very similar and essentially the same as the bipartisan language in S. 1007, entitled the Medicaid Formula Fairness Act of 2005. That bill, as we introduced it, had Senators Snowe, Rockefeller, Hutchison, Reed, Jeffords, Lincoln, Leahy, Chafee, Pryor, and Johnson as cosponsors. This amendment provides 30 States with protection from serious decreases in the amount of Federal funding that they would otherwise receive in fiscal year 2006 in the Medicaid Program.

Let me put up this chart to give Members an idea of who I am talking about. This chart shows the States that are going to see cuts in their Medicaid Program in the current fiscal year. That is the fiscal year that started the 1st of October.

Let me point to Alaska. The bill before us today provides that Alaska has a full hold-harmless from the estimated $135 million they were scheduled to lose over the next 2 years under Medicaid because of the demographic changes that Medicaid has calculated in a somewhat archaic way. That is in the current bill. The amendment I am offering does not change that. The amendment I am offering leaves that alone. It does not deal with the State of Alaska. My amendment tries to deal with the other 30 States, the red ones shown on this map, the other 30 States that are adversely affected by these

cuts in Medicaid in the current fiscal year.

In the case of Alaska, the underlying bill says we are going to hold Alaska totally harmless from any cuts over a 2-year period. My amendment says we are going to reduce the size of the cuts for these other 30 States so that they will not take as much of a cut as they otherwise would. We say they can have up to a half of a percent of cut but not more than that. It is a 1-year amendment. It is not a 2-year amendment, as the underlying bill provides for the State of Alaska.

Currently, due to a technical change made in the calculation of per capita income data, which is a major component of the calculation of the Medicaid Federal Medical Assistance Percentage, or FMAP, there are 30 States that are scheduled to lose over $800 million in Federal Medicaid matching funds. This is for the year we are already in. My amendment would limit the negative impact that the loss of Federal Medicaid funds would have on the 30 States, the vulnerable populations that they serve, and the safety net providers who serve Medicaid patients. It does so by holding those States to no more than a .5 percentage point drop in their matching rate.

Let me emphasize: The amendment does not even hold States fully harmless. We are not asking to do that. We are not urging that the States should not take some cut. The amendment also allows States to receive the better of either the current FMAP or an FMAP formula that does not re-benchmark per capita income data for fiscal years 2001 and 2002. States should not be taking a loss in hundreds of millions of dollars in their Medicaid matching funds due to a technical revision to their per capita income calculations made by the Department of Commerce in 2004 but being retroactively applied to data in 2001 and 2002. And that is exactly what is happening under current law. The approach makes little sense. Both the States and the low-income beneficiaries across this Nation should not have to bear the negative consequences of this kind of a technical change.

For those who are still not persuaded, let me give additional reasons we should not allow the 30 States that are in red on this map of the United States to lose over $800 million in Federal matching funds.

The first reason is, as the chart indicates, of the 30 States that benefit from the amendment, 27 have received emergency declarations due to Hurricane Katrina. That includes the States of Mississippi, Louisiana, and Alabama, and 24 other States that received similar emergency declarations due to the influx of evacuees.

Second, States are also absorbing costs with respect to the implementation of the Medicare prescription drug benefit right now. They will continue to absorb those costs throughout fiscal year 2006. Although States are expected to receive a benefit in the long run, in the short run they are being hit with hundreds of millions of dollars in costs. In fact, the Congressional Budget Office estimated that States will absorb an additional $900 million in added costs in fiscal year 2006 due to the prescription drug bill's implementation. The FMAP drop to our States that I am talking about in my amendment compounds the problem for our States.

One of the arguments against the amendment is, we don't have enough money. We can't afford this. Anyone who has really looked at this bill knows that is not the case. One item that I will mention as an example is this extension of the milk program, the dairy subsidy program that is going to cost another billion dollars, according to the provisions of this bill. The justification for this is minimal. It is something for which most of the benefit will go to four States. It is not a good expenditure of taxpayer dollars. It is just one example. I am sure there are many others I could cite.

We have this amendment fully offset. We have found an offset that we believe the Parliamentarian agrees will more than cover the cost of the amendment. The benefits to my State are substantial. The amendment does not restore all of the $79 million that we are expected to lose in Medicaid funds because of this change in the Federal matching percentage next year, but it does reduce the size of that reduction so that instead of a $79 million cut in Medicaid funding to New Mexico, we would see a reduction of $13 million. This is more manageable. This would allow our State to reverse the policies it has put in place that have resulted in more uninsured children. I am sure a similar circumstance exists for most of the other States, or all of the other States I am mentioning.

The amendment would provide substantial benefits to each of the States that are in red on this chart. Since I know Members are listening, some of them in their offices and some of their staffs, let me elaborate on the extent of the relief that the amendment would provide to the 30 States I mentioned: In the case of Alabama, there is $34 million in relief; in the case of Arizona, $22 million; Arkansas, $14 million; Delaware, $2 million; Florida, $25 million; Georgia, $8 million; Idaho, $5 million; Kansas, $2 million; Kentucky, $2 million; Louisiana, $43 million; Maine, $35 million; Michigan, $2 million; Mississippi, $22 million; Montana, $6 million; Nevada, $17 million.

As I mentioned, the cut would be reduced for New Mexico in the amount of $66 million. Fourteen million would be preserved in North Carolina; $6 million in North Dakota; $52 million for Oklahoma; $6 million for Oregon; $8 million for Rhode Island; $6 million for South Carolina; $3 million for South Dakota; $27 million for Tennessee; $113 million for Texas; $14 million for Utah; $10 million for Vermont; $27 million for West Virginia; $9 million for Wisconsin; and $13 million for Wyoming.

This is a good amendment. It does not say the States should not cut back on their Medicaid or should not suffer some cut in Federal Medicaid funding, but it says that cut should not be as significant as would otherwise be the case.

We can afford this. This is an amendment that is offset. I believe it is a very meritorious amendment and one that should be adopted as part of the underlying bill, and I hope my colleagues will support it.

At this point I yield the floor. I see my colleague is anxious to speak, so I yield the floor and reserve the remainder of my time.

Mr. President, I have 2 minutes; is that correct?

Mr. President, let me just say about all of the talk about how this formula is sort of inviolate and we don't want Congress to in any way change it, the underlying bill says it doesn't apply to Alaska. We are just writing into this bill there is going to be no cut in Alaska regardless of what the formula says. So all I am saying is let's at least do something to lessen the extent of the burden we are putting on these other 30 States that I am talking about.

I don't think that is too much of a change. The underlying bill also changes the formula with regard to Katrina victims, which is appropriate, 100 percent Federal matching funds for Katrina victims under Medicaid. I think that is entirely appropriate. We have changed this formula five or six times in the last few years. It would be appropriate to do this again. I think it is the right thing to do. It will not only help our States, but it will help the people our States are trying to serve through the Medicaid Program. We have a great many in New Mexico. We have over 400,000 people in our State who depend upon Medicaid. It is absolutely essential that the State have the resources, including Federal resources, to provide the services, to continue to provide the services for the children and the adults who are eligible under that Medicaid Program.

So I believe this is good legislation. This is a good amendment.

I hear that the offset would be an extra burden on the States. CBO says this is a savings for the States, that this offset saves money for the States. So, in fact, I think it is a good amendment. I urge my colleagues to support the amendment.

I yield the floor.

Mr. President, I rise today to honor SFC (Ret.) Felipe Trujillo Roybal and to recognize his lifelong service to this country. His dedication and commitment to this country is to be commended.

Mr. Roybal served 33 years in the U.S. Army and is a veteran of Vietnam, The Korean war and World War II. Mr. Roybal will be honored for his heroic service to our Nation when his name is registered in the National World War II Memorial.

Mr. Roybal joined the Army in 1937 and served in World War II as a paratrooper in the 82nd Airborne Division. During World War II he participated in the Normandy drop and received a Purple Heart for bravery, Parachute Wings, the Combat Infantryman Badge, the Merit Award, and the European Command Badge. He then served in the Korean war and received his second Purple Heart after becoming a prisoner of war, later escaping. He enlisted his services as a Green Beret in the Special Forces Division in the Vietnam war. Mr. Roybal was assigned to critical defense duty due to his elite training in the Special Forces and was praised for his immense dedication to our country.

Mr. Roybal and his wife, Bertha Morales, are native New Mexicans and have been married for 57 years. They are the proud parents of three daughters and the grandparents of two grandsons. All who have had the opportunity to know them have been touched by their kindness and generosity. So today it is with great admiration that I pay tribute to Mr. Roybal

and his courageous service to this country.

Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. President, I send to the desk a modification of amendment 2218, and ask unanimous consent that it be so modified.

Mr. President, this is an amendment that the Senator from Texas, Mrs. Hutchison, and myself are offering to add an additional $7 million to the funding for advanced placement instruction in our schools. This is an issue she and I have pursued for many years.

It is my strong belief one of the clearest ways we can improve the quality of education in our school system is to encourage more students to take advanced placement courses, to encourage more teachers to get the training necessary to teach those advanced placement courses. Those are courses the college board has identified as specified standards nationwide.

It is clear to anybody who is involved in secondary education in this country that a student is advantaged in their later education and in their career if

they have the opportunity and take advantage of the opportunity to take these advanced placement courses in high school. There are many high schools in my State of New Mexico that do not offer advanced placement courses to their students. I think that is a shame in this day and time. I think it is very unfortunate we do not make this opportunity available nationwide to more students and encourage it.

A recent report which the Presiding Officer and I have requested from the National Academy of Sciences talks very extensively about the importance of developing the scientific and technical building blocks we need for this country to strengthen our economy. They recommend in that National Academy of Sciences report that we can do a variety of things to improve the quality of education from kindergarten through the 12th grade, in addition to doing various things at the university level and, of course, doing a variety of things with research and development as well.

One of their recommendations is directly applicable to this amendment which we sent to the desk. The recommendation is that we set out to quadruple the number of students in advanced placement math and science courses by the year 2010. There are approximately 1.2 million students who take those courses today. The suggestion is that in the next 4 or 5 years we should increase that to 4.5 million students. That is an enormous undertaking. That is an easy thing to say but a very hard thing to do.

The recommendation in the appendix attached to the National Academy of Sciences report indicates that the estimate they have would cost something in the range of an additional $350 million per year for us to be able to achieve this kind of improvement. We are not asking for that $350 million in this amendment. We are asking for $7 million. We are asking to get closer to what the President requested in the budget he sent to the Congress earlier this year. We are asking to go up to $40 million for advanced placement instruction.

That is a very modest request, but we are informed it is all that is possible, given the budgetary constraints under which this bill is operating.

I think it is an extremely good amendment. It is a very important focus for us to have as we try to begin to focus on an agenda that will make this country more competitive in world markets. I know the Presiding Officer feels this needs to be a very high priority for this country. I certainly do, as well as the Senator from Texas.

I hope our colleagues will support this amendment.

I yield the floor so Senator Hutchison can explain her views on the issue.

Mr. President, I thank my colleague very much for her strong advocacy for this amendment and this program. I also say a word of commendation about Peter O'Donnell and the work he has done in this area.

He was very generous in giving of his time to brief me and my staff on progress that has been made in the State of Texas in expanding advanced placement through the private foundation he has established there. It is a very impressive model the whole country needs to emulate. This modest amendment will be a step toward helping more to happen around the country.

I ask unanimous consent Senator Reid of Nevada, Senator Boxer, and Senator Feinstein be added as original cosponsors.

As I understand it, we are ready for a vote on this amendment at this time unless the managers would like to postpone it.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Unanimous-Consent Agreement--Executive Calendar

Mr. President, last evening I called up for consideration amendment 2262 and then had it laid aside. I call it up again.

Mr. President, this is an amendment that is very important. I hope we can get a vote before the afternoon is over. The amendment would invest an additional $60 million in our Nation's future by strengthening 8 programs: the Migrant Education Program, the English Language Acquisition Program, the High School Equivalency Program, the College Assistance Migrant Program, the Dropout Prevention Program, the English as a Second Language Program, the local family information centers, and also the Hispanic-serving institutions.

The funding additions this amendment calls for add up to the total $60 million. This is an amendment that is strongly supported by the Congressional Hispanic Caucus, by the National PTA, and by the Hispanic Education Coalition, which is an ad hoc coalition of national organizations dedicated to improving educational opportunities for the more than 40 million Hispanics who live in this country today.

The Migrant Education Program is the first item. The title I Migrant Education Program was established to provide a compensatory education program designed to deal with the difficulties encountered by children of migrant families. Some of the children attend three or four schools in a single school year.

They have a great need for coordination of educational services among the States and local districts where they live, often for short periods of time. The MEP builds the support structures for migrant students so that they can achieve high levels of success both in and outside of school.

The U.S. Department of Education reports that more than 750,000 students were identified as eligible for the program in Fiscal Year 2001. Additional funds are necessary to ensure that these children are able to meet the challenges mandated by the No Child Left Behind Act. This amendment will provide an additional $9.6 million in needed funding.

This amendment would also increase funding to States and local school districts in order to ensure that as many of the 5.5 million children with limited English skills as possible learn English, develop high levels of academic attainment, and meet the same challenging State academic standards as all children.

Title III is a formula grant program that distributes funding to all 50 States based on the number of limited English proficient LEP and recent immigrant students. The funds are used for developing effective language acquisition programs; training for bilingual/ESL teachers and regular teachers and educational personnel; parent involvement; and providing services for recently arrived immigrant students. This amendment requests an additional $10.3 million for Language Acquisition Grants, which restores the program's funding to its Fiscal Year 2003 level.

This amendment would provide modest increases for the High School Equivalency Program HEP and the College Assistance Migrant Program CAMP. The HEP helps migrant students who have dropped out of high school earn a GED. The CAMP assists migrant students in their first year of college with both counseling and stipends. These programs provide farmworker migrant students with education opportunities and support that will help them to become productive members of society.

Migrant students are among the most disadvantaged youth in this Nation. Current estimates place the dropout rate for migrant youth at between 50 and 60 percent. Before CAMP, there was no record of a child of migrant farm workers ever having attended college. Both programs have been very successful in helping migrant students become productive members of society.

According to the Department of Education, in 2003-2004, almost 10,000 students were served by HEP CAMP, and 63 percent of the HEP participants received a GED, and 84 percent of CAMP students completed their first year of college in good standing. This amendment provides an additional $5.7 million for these programs.

The Dropout Prevention program help States and school districts to implement research-based, sustainable, and coordinated school dropout prevention and re-entry programs in order to raise student achievement. At a time when schools are focused on narrowing achievement gaps between differing subgroups of students, it seems that Congress would want to retain Dropout Prevention, a program specifically aimed at providing schools with the tools to help students achieve a high school degree.

Support for dropout prevention is even more significant when considering that the primary source of Federal funding for public schools, authorized through the No Child Left Behind Act NCLB, focuses mainly on elementary schools. More than 90 percent of title I funds-- the principal NCLB program--are directed to elementary schools. Such an emphasis on elementary education is necessary and appropriate, but equally important is continuing an investment of resources throughout the education continum in order to meet the needs of middle level and high school students.

The Dropout Prevention Program is the only Federal program actively working to reduce the Nation's dropout rates, and, as recent headlines tell us, it is a problem that is far more severe than previous data indicated.

A report by the Urban Institute finds that only 68 percent of all students in the public high school class of 2001 graduated. Furthermore, it states that only 5 of all black students and 50 percent of all Hispanic students grate. Nearly half of all black and Hispanic students do not graduate from high school. This is a problem that has reached enormous proportions. The Dropout Prevention Program was eliminated in this legislation. This amendment restores $5 million to this program.

The Local Family Information Centers Program was authorized under the No Child Left Behind Act to provide parents of title I students, including

English language learners, with information about their children's schools so that they can help their children to meet the high standards we have set under NCLB.

The Local Family Information Centers also help parents to hold their local and State school officials accountable and become more involved in their children's education. This amendment would increase funding for these centers by $13 million.

The need for increased funding for English as a Second Language ESL is evident by the growing demand for services and the lack of resources to meet that need.

Enrollment in Adult ESL has increased 105 percent over the past 10 years, yet there is a lack of programs and funding to ensure that all who desire to learn English have access to appropriate services.

Currently, community-based organizations must piece programs together with volunteer labor and facilities. The need for more targeted services is overwhelming. Demand for English-language instruction far outweighs supply, waiting lists for classes typically range from several months to years, and many States do not have the capacity to meet the demand.

The current $70 million in funding is insufficient to meet the enormous demand for ESL services. As the labor market continues to require English-proficient labor, investing in ESL programs will strengthen the labor pool and return a more versatile productive workforce. This amendment provides an additional $6.5 million for ESL programs.

Currently, 35 percent of Hispanics are under the age of 18. The Educational Testing Service has projected the U.S. higher education system will grow by 3.5 million additional students by 2015 and that nearly 40 percent of these new students will be Hispanic. HSIs serve the largest concentrations of the Nation's youngest and largest ethnic population.

The impending emergence of more than 100 new HSIs mostly in CA, TX, FL, NM, IL, in the next few years and the rapid growth of the Hispanic college-age population underscore urgency for immediate, major, and sustained increases in title V funding.

At a time when the current labor force is reaching retirement age in substantial numbers, Hispanics already represent one of every three new workers joining the U.S. labor force, according to the U.S. Bureau of Labor Statistics. By 2025, the Bureau projects that one of two new workers joining the U.S. labor force will be Hispanic. This amendment would provide an additional $9.9 million in assistance to these great institutions.

We must do everything possible to provide every child with the best education we can. This amendment would provide small but much-needed increases to programs that can make a difference in the lives of millions of children. I urge my fellow Senators to support these greatly needed programs by providing them with the proper resources.

This is a very worthwhile amendment. It puts resources to use where they are most needed--not just in my State but throughout this country.

The fastest growing minority population in our country is the Hispanic community. We need to ensure these young people growing up are well educated, are prepared for the challenges for the 21st century. This legislation helps greatly with that effort.

Amendment No. 2259

Mr. President, let me briefly describe one other amendment at this point. I called this amendment up yesterday, as well, amendment 2259, dealing with the Drug Assistance Program, an amendment Senator Smith and I have worked together on to add additional funding for the AIDS Drug Assistance Program, or ADAP.

We had an amendment voted on last night by Senator Coburn to shift funding to this function by taking funding from the Centers for Disease Control. Our amendment does not do that. Our amendment provides $74 million in much-needed funding. It would be emergency funding for the AIDS Drug Assistance Program.

This is a very meritorious amendment. It is an amendment I hope all colleagues will support. Some Members of this body voted against the amendment of the Senator from Oklahoma in anticipation of supporting this very important amendment I am talking about now.

The AIDS Drug Assistance Program provide life-saving assistance to over 136,000 uninsured or underinsured HIV-infected individuals each year. As the number of people living with HIV/AIDS has increased, largely due to advances in HIV treatment, the importance of and demand for ADAP has grown so that, as of September 2005, a total of 2,187 individuals were on ADAP waiting lists in nine States.

As the National ADAP Monitoring Project says:

When an individual is on a waiting list, they may not have

access to HIV-related medications.

We are talking about life-extending and life-saving medications. In fact, it has been reported that patients on ADAP waiting lists in West Virginia and Kentucky have passed away.

Furthermore, as of March 2005, due to funding shortfalls, 21 States have some sort of cost containment measures in place, including waiting lists, that often impede access to care. This includes increased cost- sharing, reductions in eligibility income limits, and limitations on covered treatments.

We as a Nation, are rightfully committed to providing billions of dollars of support for HIV/AIDS care and treatment services to those living with HIV in nations across the world and we should be. However, here at home, it is unforgivable that there are Americans with HIV dying because they are on waiting lists for life-saving drugs or having life-saving medications rationed to them in various forms.

A story entitled ``Dying for AIDS Drugs'' documents some of the stories of those who have lost ADAP coverage or are on waiting lists. As the story reads:

Margaret Nicholson, a Springfield, Oregon, homecare

attendant who survives with her mother and husband on less

than $20,000 a year, lost her ADAP coverage because she

couldn't afford the new co-pays; she has now gone 4 months

without seeing a doctor and is scraping by on pill samples.

In North Carolina, HIV doctor Aimee Wilkin says some of her

waiting list patients, forced to seek medicines through drug

company charity programs, have faced multiple treatment

interruptions, the result of bureaucratic delays, exposing

them to the risk of HIV drug resistance. In Kentucky,

caseworkers are so desperate they're asking churches to pass

the hat to sponsor someone's pills for a few weeks at a time.

In our great Nation, this is unacceptable and should end. This amendment, sponsored by Senator Smith and myself, would go a long way to address the ADAP shortfall and I urge its passage.

I hope we can also have a rollcall vote on this amendment.

I ask for the yeas and nays on Senate amendment 2262 at this time.

Mr. President, I also ask for a rollcall vote on Senate amendment 2259.

I ask for the yeas and nays.

I yield the floor.