Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank my colleague again. I ask him also about his intent of the provision to apply only to engines smaller than 50 horsepower.

Mrs. FEINSTEIN. I thank my colleague. I ask him also about his intent of the provision to apply only to nondiesel engines.

Mrs. FEINSTEIN. I thank my colleague, and ask whether he intended the language to apply only to ``nonroad'' engines?

Mrs. FEINSTEIN. Mr. President, some of my constituents are asking questions about the meaning of the small engines provision included in the fiscal year 2004 omnibus appropriations conference report. They raise the question about whether subsection (c) applies only to ``new'' and ``nonroad'' spark-ignition engines smaller than 50 horsepower. That was my understanding. I ask my colleague from Missouri, Senator Bond, one of the authors of this provision, whether that was his intent?

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President. I rise along with Senator Fitzgerald to reintroduce the Infant Crib Safety Act. This legislation is designed to reduce injuries and deaths that come from infant crib accidents. Earch year, about 11,500 children ages 2 and under are injured in cribs seriously enough to require hospital treatment. Approximately, 26 children die a year from such injuries, the highest number of deaths caused by nursery-related products. In fact, according to the Consumer Product Safety Commission, cribs cause more deaths than all other nursery items combined. While strict guidelines exist on the manufacture of and sale of new cribs, there are millions of cribs sold throughout the U.S. in ``secondary markets'' such as thrift stores and resale furniture stores. As many as half of the 4 million infants born in this country each year are placed in second hand cribs. Many of these used cribs are unsafe and should be taken off the market and either repaired or destroyed. These used cribs can have dangerous features such as protruding corner post extensions, missing or broken parts, excessive slat width, poor fitting crib sheets, inadequate mattress supports, latches that do not prevent unintentional collapse of the crib. Cribs built before 1978 have a higher lead content than current regulations allow. Let me give you some of the real life examples of the tragedies caused by unsafe cribs. At the age of 23 months, Danny Lineweaver was injured during an attempt to climb out of his crib. Danny caught his shirt on a decorative knob on the cornerpost of his crib and hanged himself. Though his mother was able to perform CPR the moment she found him, Danny lived in a semi-comatose state for 9 years and died in 1993. In another case, Luke Torgerson, a 13-month-old infant, died due to an unsafe crib at this daycare facility in Minnesota. Parents should have confidence that a crib is a safe place to leave an infant. The design and construction of a baby crib must ensure that it is safe to leave an infant while sleeping. Since cribs are the only juvenile product manufactured expressly for leaving a child unattended, every necessary measure should be taken to ensure that the crib is the safest possible environment. The Infant Crib Safety Act keeps unsafe secondhand or hand-me-down cribs out of the stream of commerce by prohibiting their sale, resale, lease, and use in lodging facilities or day care centers. This bill does not apply to individuals who provide cribs to their friends, or to any type of individual sale of a crib such as at a garage sale. The bill focuses on commercial users. And currently, controls over cribs provided by transient public lodging establishments or sold at thrift stores are non-existent. Studies have shown that hotels and motels continue to use unsafe cribs and thrift stores continue to sell them. In the year 2000, the National Safe Kids Campaign did an investigation of cribs used by hotels and motels. Spot checks by the Campaign identified unsafe cribs in 80 percent of the cribs visited. A year earlier, the Consumer Product Safety Commission found that 12 percent of the cribs sold in a survey of thrift stores did not meet existing voluntary industry or Federal safety standards for new cribs. Comparable legislation has already been adopted by a number of States. Eleven States including Arizona, Arkansas, California, Colorado, Illinois, Louisiana, Michigan, Oregon, Pennsylvania, Vermont, and Washington have already passed legislation prohibiting the sale of cribs that do not meet current safety standards. There is no good reason why cribs in all 50 States should not meet these reasonable safety standards. The legislation is supported by the Consumer Federation of America and the Danny Foundation. I look forward to working with my Senate colleagues to turn this common-sense legislation into law.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Madam President, I rise today to cosponsor S. 1999, the Medicare Prescription Drug Price Reduction Act, which strikes language known as the ``noninterference clause'' included in the recently passed conference report accompanying the Medicare Prescription Drug and Modernization Act of 2003. I believe that language preventing the Secretary from leveraging the enormous purchasing power of the Federal Government will mean our seniors may pay more for their drugs than they could be if that language was modified to allow the Secretary negotiating ability. America's seniors already pay the highest drug prices in the world, even though American taxpayers subsidize the research that produces many of those drugs. So this legislation gives the Secretary of the Department of Health and Human Services, HHS, authority to negotiate contracts with manufacturers of covered Medicare Part D prescription drugs in order to ensure that enrollees in Medicare prescription drug plans, PDPs, pay the lowest possible price. The authority given to the HHS Secretary is similar to that given to other Federal entities that purchase prescription drugs in bulk. I voted for the Medicare prescription drug conference report because it delivered voluntary prescription drug coverage to this Nation's 41 million Medicare beneficiaries. Too many Americans today face the terrible choice of paying for rent or groceries or paying for their prescription drugs. In fact, some of my constituents have resorted to skipping doses in an attempt to manage prescription drug prices. One of the strongest features of the Medicare bill is the assistance it provides for low-income Medicare recipients through the elimination or reduction of premiums, deductibles and copays. For those low-income Medicare recipients whose prescription drug spending exceeds the catastrophic limit, or $5,100 in total drug spending, Medicare will pay all of their drug costs. For seniors who do not qualify for the low- income assistance, they will pay no more than 5 percent of their prescription drug costs above the catastrophic limit. The Medicare prescription drug bill includes essential increases in funding for California's health care providers. California's hospitals are facing financial crises across the State. In fact, over the past 7 years, more than 62 hospitals have been forced to close. The bill will help hospitals meet the needs of California's communities by providing $882 million in additional Medicare and Medicaid payments over the next 10 years. Physicians will now receive an increase of 1.5 percent per year in Medicare payments in 2004 and 2005, rather than the 4.5 percent payment cut they were expected to incur. However, one of the most troubling aspects of the bill was language intended to promote competition among prescription drug plans in order to lower prescription drug prices. Section 1860D-11(i) says: The Secretary may not interfere with the negotiations between drug manufacturers and pharmacies and Prescription Drug sponsors. I believe that this language actually takes away one of the best tools the Medicare program could use to bring down prescription drug prices by denying the Government the ability to negotiate price discounts on behalf of Medicare recipients. The Veterans' Affairs, VA, system negotiates prescription drug prices. This negotiating authority has been a terrific success in bringing down the cost of drugs purchased by the VA. Why would we prevent the Secretary of HHS from doing the same on behalf of our 41 million Medicare recipients? Some argue that this noninterference language will spur competing prescription drug plans to drive down the cost of prescription drugs in an effort to secure contracts with the Federal Government. However, since the Secretary may not require a particular formulary or institute a price structure for covered Part D drugs, seniors may be unprotected from escalating drug costs in regions without plan competition. Here is the most recent picture of health care spending in the United States: Health care spending in the United States increased 9.3 percent to $1.55 trillion in 2002, the largest increase in 11 years. It now accounts for 15 percent of the Nation's gross domestic product. Prescription drug spending rose 15.3 percent to $162.4 billion in 2002, accounting for 16 percent of the overall health care spending increase. Spending on prescription drugs is often cited as a key contributor to rising health care costs. Unfortunately, the Medicare bill missed a significant opportunity to reign in the escalating cost of prescription drugs in the U.S. I believe the Medicare Prescription Drug Price Reduction Act will bring real prescription drug cost relief to seniors in California and across the country. I urge my colleagues to join me in supporting this important legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am concerned about the impact the Medicare conference report will have on low-income Medicare beneficiaries who are living with HIV/AIDS. I have heard a lot of opposition to this bill from the HIV/AIDS community. My concern is with their access to drug treatment therapy under the Medicare prescription drug benefit. Is it your understanding that the Medicare conference report will not prevent low-income Medicare beneficiaries who are living with HIV/AIDS from getting all the drugs they need through Medicare Part D?

Mrs. FEINSTEIN. In addition, I also think it is important to note that the Congressional Budget Office has estimated that the net price increase for prescription drugs under this bill will be 3.5 percent. CBO also found that drug plans bearing full statutory risk levels are estimated to produce an overall higher cost savings of 20 to 25 percent for prescription drugs under this bill, as compared to the 12 to 15 percent that CBO believes is achieved by private prescription benefit managers today. According to CBO, prescription drug prices would be cheaper under this bill. I would like my colleagues to know that should CBO's estimates of the higher savings by drug plans in this bill prove to overestimate prescription drug savings to seniors, I intend to introduce legislation that will provide seniors with lower drug prices.

Mrs. FEINSTEIN. I ask unanimous consent to print the following in the Record.

Mrs. FEINSTEIN. Will that apply to all covered drugs required by a person with HIV/AIDS and in all cases?

Mrs. FEINSTEIN. I would like to quote from a letter I received from Secretary of Health and Human Services Tommy Thompson, the full text of which I will include for the Record. Secretary Thompson says, ``I would not approve a plan for participation in the Part D program if I found that the design of the plan and its benefits, including any formulary and any tiered formulary structure, would substantially discourage enrollment in the plan by any group of individuals. If a plan, however, complies with the USP guidelines then it would be considered to be in compliance with this requirement. Thus, if a plan limited drugs for a group of patients (individuals living with HIV/AIDS) it would not be permitted to participate in Part D.'' Secretary Thompson goes on to say, ``Under the Conference Report, the beneficiary protections in the Medicare drug benefit are more comprehensive than the protections now required of State Medicaid programs. This will ensure access to a wide range of drugs. For example, there are extensive information requirements so that beneficiaries will know the drugs the plan covers before they enroll in the plan. Beneficiaries can also appeal to obtain coverage for a drug that is not on their plan's formulary if the prescribing physician determines that the formulary drug is not as effective for the individual as another drug, or if there are adverse effects. As a result, access to all drugs in a category or class will be available to a beneficiary when needed.'' Is this your understanding as well?

Mrs. FEINSTEIN. I thank the distinguished Senators from Montana and Iowa. I ask unanimous consent to print the above-referenced letter in the Record.

Mrs. FEINSTEIN. Finally, it is my understanding that practice expense increases for oncology are expected to be about $500 million in 2004, $600 million in 2005, and $560 million in 2006, as shown in the summary which I will submit for the Record. Is it your understanding that the payment expense increases will allow efficient cancer care providers to continue serving cancer patients and not close their doors?

Mrs. FEINSTEIN. Is it the intent that if this new payment system does not suffice to ensure access to care, that you will revisit the system and revise the payment methodology?

Mrs. FEINSTEIN. Many physicians depend on overpayments on Part B drugs to make up for inadequate practice expenses. Is it the intent of the Senator from Montana that physicians' practice expenses will be increased sufficient to ensure access to care?

Mrs. FEINSTEIN. Mr. President, the Medicare conference report, which includes a reform of the Part B drug payment system, includes significant payment reductions to providers of cancer care. I understand that Senator Grassley does not intend for these payment reductions to force efficient cancer clinics to close, jeopardizing access to care for thousands of cancer patients.

Mrs. FEINSTEIN. Yes, we have heard this criticism often during the debate. And I believe it is important to clarify that this bill will ensure that seniors pay less for prescription drugs than they pay today.

Mrs. FEINSTEIN. Isn't it also true that if a plan chooses to use a formulary, it must include at least two drugs in each therapeutic category or class, unless the category or class only has one drug and that the plan must use pharmacy and therapeutic committees that consist of practicing physicians and pharmacists to design their formularies?

Mrs. FEINSTEIN. Victims of HIV/AIDS are somewhat unique since the treatment for HIV/AIDS varies with the individual. To be clear, no low- income Medicare beneficiaries who have HIV/AIDS will be denied access to the drugs they need in Medicare Part D?

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I will read just a couple of key points made by the Secretary in response. Let me quote the Secretary: The Secretary may only approve a plan for participation in the Part D program if the Secretary does not find that the design of the plan and its benefits, including any formulary and any tiered formulary structure, will substantially discourage enrollment in the plan by certain classes of eligible Medicare beneficiaries. Thus, if a plan limits drugs for a group of patients (such as AIDS patients), it would not be permitted to participate in Part D. I also note that upon completion of this bill, Senators Grassley and Baucus and I will enter a colloquy into the Record to emphasize this point. This bill says that if a plan doesn't carry or doesn't treat a drug that is needed by a person with AIDS as a preferred drug, a simple note from a doctor explaining the medical need for that particular drug would get that drug covered at the preferred price. It cannot take more than 72 hours for seniors to get a drug under this expedited appeals process. This is my understanding based on conversations with the Secretary. I am delighted this understanding is now in the Congressional Record so that we can all follow it. I want to say a word about something that is very controversial in the bill that I happen to support and why I support it. That is income relating the Medicare Part B premium. Let me tell you why I support it. I have a great fear that as I watch entitlement spending grow, and I have watched that happen for a decade in the Senate, our children and our grandchildren will not have access to Social Security or Medicare. Let me tell you why I believe this. Since 1993, at my constituent breakfasts we have been using charts to illustrate outlays, meaning the money the Federal Government spends every year. I believe they are the truest way to judge Federal spending. When I began this, in 1993, entitlement spending was $738 million. About 50 percent of the outlays in a given year were entitlement spending. That was welfare, veterans benefits, Social Security, Medicare, et cetera. Interest on the debt was 13 percent. So 63 percent of the outlays in a given year could not be controlled by our budget. This year, entitlement spending is $1.174 billion. Entitlements have risen to 54.4 percent, a 4.4 percent increase. Interest has dropped some, to 7.5 percent. Now, if we look at the projection--and this is with the $400 billion prescription drug plan--if you look at entitlement spending in 2013, 10 years from now, you see that it is $2.048 billion. So in 10 years it has gone from $738 billion to $2.48 billion. That is the problem. Entitlements will be 58 percent of the outlays, and interest on the debt, 11.6 percent. What does that mean? That means 70 percent of everything that is spent by the Federal Government in fiscal year 2013 cannot be controlled. The other two pieces, of course, are defense, projected at about 16.9 percent, and discretionary spending, dropping from 20 percent this year down to 13.6 percent. Discretionary spending is everything else we have to do. It is everything in the Justice Department, the Education Department, the Park Service. All the rest of the Federal Government in 10 years will be about 13 percent of what is being spent. That is the enormity of the entitlement picture. I know it is hard for people to look at this because those people who had the dream of Medicare decades ago looked at it as a program that everyone who paid in got out the same benefit. But what the income relating in this bill talks about is just the Part B Medicare premium, the cost of which today is $3,196.80. That is the full cost of the Medicare Part B premium in 2004. Now, what is Part B? Part B is physician care, other medical services; it is outpatient hospital care, ambulatory surgical services, X-rays, durable medical equipment, physical occupational and speech therapy, clinical diagnostics, lab services, home health care, and outpatient mental health service. The premium is $3,196.80. The income-relating provisions in this bill are very mild, much milder than what Senator Nickles and I presented on the Senate floor. In this bill, beginning in 2007, individuals with incomes of more than $80,000, or couples with incomes of more than $160,000, will have, instead of 75 percent of their Medicare Part B premium subsidized, 65 percent of it will be subsidized by the Federal Government. This goes up four tiers so that individuals with incomes of more than $200,000 a year, or a couple with an income of more than $400,000 a year, will have just 20 percent of their Medicare Part B premium subsidized by the Federal Government. Why should hard-working taxpayers pay for a millionaire's health care? That is my view. I don't see income relating as bringing about the downfall of Medicare. I see it as making the program more solvent. There is one significant missed opportunity in this bill that concerns me deeply, and that is the whole area of the cost of prescription drugs. I am particularly concerned about the amount of money spent on prescription drug promotion by pharmaceutical companies. Perhaps I have reached the age where I remember when there was no advertising of prescription drugs. We were just as well off then as now, and without huge costs. Let me give you some examples. Promotional spending by pharmaceutical manufacturers has more than doubled, from $9.2 billion in 1996 to $19.1 billion in 2001. That is an annual increase of 16 percent. Most troubling to me is the rapid spending growth of direct-to- consumer advertising of prescription drugs, which has increased an average of 28 percent. Bottom line, Mr. President: I intend to support this bill, and not because it is perfect, but because I believe it brings substantial help to people who need that help in my State of California. I yield the floor. Exhibit 1 Access to Drugs for Aids Patients Under the Bipartisan Agreement Question: Will AIDS patients have access to all drugs within a therapeutic class under the Bipartisan Agreement? Can a PDP limit the number of drugs that are covered within a therapeutic class? Are dual eligibles in a Medicare drug plans losing coverage available to them in Medicaid? Answer. In the Bipartisan Agreement there are significant safeguards in the development of plan formularies that will ensure that a wide range of drugs will be available to Medicare beneficiaries. Plans have the option to use formularies but they are not required to do so. If a plan uses a formulary, it must include ``drugs'' in each therapeutic category and class under section 1860D-4(b)(3)(C)(i). A formulary must include at least two drugs in each therapeutic category or class unless the category or class only has one drug. The Secretary will request the U.S. Pharmacopoeia, a nationally recognized clinically based independent organization, to develop, in consultation with other interested parties, a model guideline list of therapeutic categories and classes. How categories and classes are designed is essential in determining which drugs are included on a plan's formulary. USP is clinically based and will be cognizant of the needs of patients. We expect they will design the categories and classes in a way that will meet the needs of patients. In designing formularies, plans must use pharmacy and therapeutic committees that consist of practicing physicians and pharmacists who are independent and free of conflict with respect to the plan, and that have expertise in care of elderly and disabled. The committee has to use scientific evidence and a scientific basis for making its decisions relating to formularies. Further, the Secretary may only approve a plan for participation in the Part D program if the Secretary does not find that the design of the plan and its benefits, including any formulary and any tiered formulary structure, will substantially discourage enrollment in the plan by certain classes of eligible Medicare beneficiaries. If a plan complies with the USP guidelines it will be considered to be in compliance with this requirement. Thus, if a plan limited drugs for a group of patients (such as AIDS patients) it would not be permitted to participate in Part D. Under the Bipartisan Agreement, the beneficiary protections in the Medicare drug benefit are extremely comprehensive to ensure access to a wide range of drugs and are more comprehensive than the protections now required of state Medicaid programs. For example, there are extensive information requirements in Part D so beneficiaries will know what drugs the plan covers before they enroll in the plan. The plans must set up a process to respond to beneficiary questions on a timely basis. Beneficiaries can also appeal to obtain coverage for a drug that is not on their plan's formulary if the prescribing physician determines that the formulary drug is not as effective for the individual or has adverse effects. As a result, there should be access to all drugs in a category or class when needed. Because the Medicare drug benefit will be offered through private plans, plans will have an incentive to offer multiple drugs in a therapeutic class in order to attract Medicare beneficiaries to join their plans. Becuase of the optional nature of the Medicaid drug benefit today, states can drop their coverage entirely. According to a recent Office of the Inspector General report, states have identified prescription drugs as the top Medicaid cost driver (FY 2002, Medicaid prescription drug expenditures totaled approximately $29 billion or 12% of the Medicaid budget). From 1997 to 2001, Medicaid expenditures for prescription drugs grew at more than twice the rate of total Medicaid spending. Pressures on state budgets have led to Medicaid coverage restrictions for drugs and the use of cost control measures that will not be used in the Part D program. Eighteen states contain Medicaid drug costs by limiting the number of prescriptions filled in a specified time period, limiting the maximum daily dosage or limiting the frequency of dispensing a drug. Some states also limit the number of refills. Six states have pharmacy lock-in programs, which require beneficiaries to fill their prescriptions in one designated pharmacy. States already have the authority to limit the number of drugs that may be provided in a therapeutic class, and nineteen states are using preferred drug lists in their Medicaid programs. Thus, dual eligible beneficiaries will have the same access in Part D that they have in Medicaid, with expanded beneficiary protections and appeal rights. Concerns have been expressed that the Medicare benefit will result in a loss of coverage for dual eligibles. This is not the case for low-income beneficiaries, the Bipartisan Agreement provides generous coverage. The Bipartisan Agreement preserves the universality of Medicare for all eligible beneficiaries including those now dually eligible for both Medicare and Medicaid. Unlike Medicaid, the new Medicare Part D benefit will provide a guaranteed benefit to all eligible seniors--a benefit they can count on without fear of loss of benefits when state budgets become tight. Dual eligibles, who currently have full Medicaid benefits, will automatically be given generous subsidies and pay no premium, no deductible and minimal cost-sharing regardless of their actual income (which can be higher than 135% of poverty based on states' special income rules). In addition, full dual eligibles with incomes under 100% of the Federal Poverty Level (FPL) will pay no premiums, no deductible sand only nominal copayments of $1 for generic and other multiple source preferred drugs and $3 for all other drugs. These copayments will increase only at the rate of inflation, the same rate as the Supplemental Security Income (SSI) payments on which many low-income individuals rely. Dual eligible nursing home patients and other institutionalized persons who only have a small personal needs allowances will be exempt from copayments altogether. The copayment levels in the Bipartisan Agreement are similar to what dual eligibles now pay in what is an optional Medicaid benefit in their states. In fact, because of the optional nature of the Medicaid drug benefit today, states can drop their coverage entirely. Current regulations permit states to increase coinsurance to 5%, which is more than what will be permitted for dual eligibles under the new Medicare benefit.

Mrs. FEINSTEIN. Mr. President, I listened to the distinguished Democratic leader and find that I agree with much of what he said. This may not be a perfect bill, but clearly there are positive and negative features to the bill. I worked a year ago, and through an individual's help, was able to run the numbers with respect to a prescription drug plan and tried to make them come in within $400 billion and found it to be extraordinarily difficult. In my view, the most positive feature of this bill is that it delivers voluntary prescription drug coverage to this Nation's Medicare beneficiaries. I find the low-income benefits of this bill to be one of its biggest strengths. It is better than anything we ran that came in at $400 billion or below last year. These benefits affect about 1.4 million Californians who have limited savings and low incomes and who will qualify for prescription drug benefits under this bill. Some of these are low-income seniors who do not qualify for Medicaid. Because of $3,000 in savings, they are ineligible to receive prescription drug coverage through the California Medicaid Program. They will now have prescription drug coverage which is much better than I had hoped. So 351,000 low-income Californians who are not eligible for Medicaid and have no prescription drug benefits now will have them under this bill. This was important to me. It is one of the strengths of the bill. Analysis shows that this bill will increase the percentage of Medicare beneficiaries with prescription drug coverage from 79 percent to approximately 95 percent. To begin with, this bill, as I said, expands the drug coverage to the 351,000 Californians who are not eligible for Medicaid. The reason it does that is because it has a much more relaxed assets test. So where the assets tests were so stringent for Medicaid, they are more relaxed here; and, therefore, those 351,000 people who found themselves without Medicaid coverage will now have coverage under this bill. Secondly, the bill provides a 16-percent increase in Medicaid disproportionate-share hospital payments in fiscal year 2004. This has always been important to me. Every year we have had to fight for it because these are the payments that go to our county hospitals. In California, the county hospitals receive most of the people who have no coverage who are bereft and who are extraordinarily low income. California hospitals who qualified to receive Medicaid DSH money lost $184 million this year due to cuts enacted in the Balanced Budget Act in 1997. This bill restores $600 million to California's hospitals over the next 10 years. I must tell you, with about 25 hospitals that have closed in my State in the last few years, this is a major item for me. The DSH money in this bill will go a long way toward protecting California's fragile health care safety net, which is dependent on a complex combination of local, State, and Federal funding. Thirdly, the bill improves payments for indirect medical education in fiscal year 2004 and beyond. Teaching hospitals will receive a 6- percent increase in payments in the second half of fiscal year 2004 and will have their payments spelled out in future years so they can begin to plan ahead. Now, they do go down in some years. So there will be advanced knowledge of that so hospitals can begin to plan for that. This is money that reimburses teaching hospitals. My State has some of the greatest teaching hospitals in the Nation. This money would reimburse those hospitals for costs associated with educating our Nation's next generation of physicians. That is important to me. I think it is essential funding, and it will allow our major hospitals to continue training tomorrow's caregivers. Fourthly, the hospitals and physicians in California will benefit from this bill. Hospitals will see a full market basket update for fiscal year 2004 and have the opportunity to receive a full market basket update for the 3 years that follow. With more than 58 percent of California's hospitals losing money treating Medicare beneficiaries, and all hospitals facing Federal and State unfunded mandates, the full market basket update is vital to my hospitals as they struggle to meet staffing, seismic, and privacy compliance requirements. I have heard overwhelming opposition from doctors in my State to the projected 4.5-percent payment cut that physicians and other health care providers would have faced in fiscal year 2004. In other words, without this bill, doctors in my State--and I do not know about elsewhere--but doctors in my State were going to face a projected 4.5-percent payment cut. This bill prevents that payment cut from happening, and it includes an increase in payments for fiscal years 2004 and 2005 of 1.5 percent each year. This means that doctors in my State will be paid more for their services. It may not sound like a lot, but we have doctors leaving California and going to other States because they cannot meet the high cost of living in the State of California and practicing medicine. So even a small amount helps them stay in business. In my State, approximately 33 percent of all Medicare beneficiaries get their health care coverage from Medicare+Choice. Now, Medicare+Choice has not been a positive experience in every case. I think we all know this. This bill, though, strengthens the Medicare+Choice Program, renames it Medicare Advantage, and it provides payment increases to HMOs. Some find that objectionable. I, frankly, do not, because these increased payments to HMOs and preferred provider organizations should provide some premium stability throughout the State. I intend to watch and see if, in fact, it does happen. Now, I have many concerns about this bill. The Democratic leader pointed out some of them. This is certainly not a perfect bill. I am not on the committee. I did not write the bill. I struggled to have a little bit of input into the bill, probably much less than I would have liked. I am deeply concerned about the number of Californians, though, who have lost their retiree health benefits as a result of rising health care costs. This is happening right now without a bill. It is projected that 10 to 12 percent of retirees who have private health care plans are losing their benefits each year. That is happening without this bill. The reality is--and I know people do not like to look at this--if we do not pass this bill, employers in my State will continue to drop coverage for their retirees at this estimated rate of 10 to 12 percent a year. Many of these employers who have chosen to retain coverage for their retirees have required their retirees to pay higher copayments and premiums--not under this bill but today. Through direct subsidies and tax provisions, this bill actually reduces the number of seniors in California who will lose their retiree health coverage from approximately 431,420 in the Medicare bill that passed the Senate, that a majority of us voted for, to approximately 198,000 in this bill. These are California numbers, true. I cannot speak to other States. But what I am saying is, because of this bill, the number of retirees in California who would lose their retirement benefits will drop from 431,420 to 198,000. Now, I wish the number were zero, but the point is, the bill makes it better, not worse. I think that is a good thing. Now, I find it very difficult that this bill does not restore access to Medicaid and SCHIP for legal immigrant children and pregnant women at the State's option. The Senator from Florida, Mr. Graham, authored legislation which I voted for which did do this. I intend to introduce--and I hope with him--legislation to restore Medicaid and SCHIP benefits to California's legal immigrant children and pregnant women next year. I find it, frankly, troubling that this bill actually provides $250 million per year for 4 years to reimburse hospitals for providing emergency care services for undocumented immigrants, and California's hospitals will receive approximately $72 million a year to reimburse them for their care to undocumented immigrants, but we take away the coverage for legal immigrants. I expressed my concern to Senator Breaux, to Senator Baucus, to Senator Frist about this issue. I was told the House would not accept this language. I hope next year the Senate will once again pass a bill to restore these benefits. This is a big item in California, and I deeply believe people who come to this country legally should be entitled to these benefits. My State spent $3.7 billion in 2002 in uncompensated care, so the additional money that California gets for the care of illegal immigrants of $72 million a year at least will go some distance in covering that deficit. In my role as vice chair of the National Dialogue on Cancer and cochair of the Senate Cancer Coalition, I have a very serious concern about this bill's Medicare reimbursement cuts for cancer care, particularly oncology physicians. It is my strong view that every suffering cancer patient should be able to have a so-called quarterback physician, an oncologist, someone who is with them who can go through all of the terrible choices and decisions that have to be made by a cancer patient and stay with them through it all. I have talked to both Senators Baucus and Breaux and also to Senator Frist. They have all said this bill will leave the oncology community better off. I don't see that, candidly. In looking at this complicated Average Sales Price versus Average Wholesale Price issue, I don't see where they will be better off. I want the Record to reflect that I have received those assurances. I don't know whether they are true or not, but I can promise my colleagues, I intend to follow very closely the impact this bill will have on cancer care up and down the State of California. My staff and I will be watching the cancer care situation, and I am certainly prepared to introduce legislation making technical corrections to Medicare reimbursement for cancer care if the bill has the impact the oncology community predicts it will. It is my understanding that our leadership will appoint an independent commission to be headed by my good friend, former Senator Connie Mack. The commission will monitor the impact of this bill on cancer care throughout the country and will report and make policy recommendations to Congress. I am also concerned about the impact this bill will have on 50,000 low-income Californians who are living with HIV/AIDS. We have heard a lot from the HIV/AIDS community. My concern is with their access to drug treatment therapy under the Medicare prescription drug benefit. What happens in AIDS/HIV treatment is that very often a cocktail of drugs, three or four different drugs, proves to be the most beneficial. The type of drugs varies with the individual, just as any drug would with any of us. I have shared this belief, and the concern is that the formularies would limit an individual to two drugs. I spoke at length with Health and Human Services Secretary Tommy Thompson Friday night about it and asked him to put in writing exactly what would happen. Directly following my remarks, I ask unanimous consent to print in the Record his Department's response to my concerns.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am pleased to join with the distinguished Senator from Pennsylvania, Senator Santorum, to introduce legislation that will promote the American dream of homeownership. Our legislation will specify that providing homeownership down payment assistance to American families constitutes a charitable activity under the regulations of the Internal Revenue Service. As the cornerstone of middle-class wealth in our nation, we should be doing everything possible to promote broad investment in owner-occupied housing. Today, we have that chance. It should not be a surprise that homeownership among low to moderate income families is lower than for those with higher incomes. The single biggest obstacle to achieving this dream is the lack of a downpayment. Across America there are organizations that assist low to moderate income families with that first important step toward homeownership. In California, one of these groups, the Nehemiah Corporation, helps literally thousands of families each year by providing down payments. While the Federal Government provides tax incentives for increased homeownership, we should make it easier for the private sector to provide their own brand of incentives. Importantly, this legislation will do several things to ensure that the private sector continues to have the tools it needs to provide this important assistance. One, our legislation will specify that homeownership down payment assistance to American families constitutes a charitable activity. Currently, Internal Revenue Service regulations do not clearly address the special circumstances of those organizations that provide downpayment assistance to families. Two, our bill is structured to ensure that a charitable down payment assistance program is not used to support the purchase of rental properties or expensive homes. Three, our legislation is designed so that the taxpayers do not pick- up the tab. Since, home sellers often contribute to charitable down payment assistance providers in connection with the sale of a home, those contributions are not charitable in nature; they are an expense related to selling a home. This legislation clarifies that a party to a home sale transaction may not claim a charitable contribution deduction for a contribution to a down payment assistance organization made in connection with the sale. And, although Internal Revenue Service regulations do not specifically address down payment assistance programs, our legislation merely codifies current practice. This legislation will ensure the continued growth of this essential segment of the financial services market at no cost to the taxpayers. And, as my friend from Pennsylvania has said, equity in homes is the leading source for collateral for small business start-up borrowing. At a time when the economy still fails to produce jobs, the expansion of small business and the employment they provide is essential to the health of our economy. It is a win-win situation in the truest sense of the term and I urge my colleagues to support it.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am pleased to join with the distinguished Senator from Pennsylvania, Senator Santorum, to introduce legislation that will promote the American dream of homeownership. Our legislation will specify that providing homeownership down payment assistance to American families constitutes a charitable activity under the regulations of the Internal Revenue Service. As the cornerstone of middle-class wealth in our nation, we should be doing everything possible to promote broad investment in owner-occupied housing. Today, we have that chance. It should not be a surprise that homeownership among low to moderate income families is lower than for those with higher incomes. The single biggest obstacle to achieving this dream is the lack of a downpayment. Across America there are organizations that assist low to moderate income families with that first important step toward homeownership. In California, one of these groups, the Nehemiah Corporation, helps literally thousands of families each year by providing down payments. While the Federal Government provides tax incentives for increased homeownership, we should make it easier for the private sector to provide their own brand of incentives. Importantly, this legislation will do several things to ensure that the private sector continues to have the tools it needs to provide this important assistance. One, our legislation will specify that homeownership down payment assistance to American families constitutes a charitable activity. Currently, Internal Revenue Service regulations do not clearly address the special circumstances of those organizations that provide downpayment assistance to families. Two, our bill is structured to ensure that a charitable down payment assistance program is not used to support the purchase of rental properties or expensive homes. Three, our legislation is designed so that the taxpayers do not pick- up the tab. Since, home sellers often contribute to charitable down payment assistance providers in connection with the sale of a home, those contributions are not charitable in nature; they are an expense related to selling a home. This legislation clarifies that a party to a home sale transaction may not claim a charitable contribution deduction for a contribution to a down payment assistance organization made in connection with the sale. And, although Internal Revenue Service regulations do not specifically address down payment assistance programs, our legislation merely codifies current practice. This legislation will ensure the continued growth of this essential segment of the financial services market at no cost to the taxpayers. And, as my friend from Pennsylvania has said, equity in homes is the leading source for collateral for small business start-up borrowing. At a time when the economy still fails to produce jobs, the expansion of small business and the employment they provide is essential to the health of our economy. It is a win-win situation in the truest sense of the term and I urge my colleagues to support it.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today's vote to pass the Healthy Forests legislation is a major bipartisan victory. This is not just because it is the first major forest bill in 27 years. Much more significantly, we have nourished the middle ground in the forest debate that is so often lost in the partisan rhetoric. We actually can create good rural jobs, protect our communities, and restore our forest environment at the same time. Let me repeat this: we can create rural jobs, protect our communities, and take action to restore the health of our forests at the same time. Ever since I cosponsored the Herger-Feinstein Quincy Library Group Act 5 years ago, I have been working to bring together the rural, forest-dependent communities--rather than unnecessarily dividing them. This bill goes a long way to that end throughout the West and the Nation. There are many people who deserve credit for this bill, but there are a few Senators in particular to whom I want to give special thanks. Senators Pete Domenici and Larry Craig were the best bipartisan allies I could ever ask for in terms of how they approached this issue. Even though they are in the majority, Senators Domenici and Craig realized that a forestry bill needed a bipartisan coalition. They worked in good faith with me and Senator Wyden from start to finish, and I am deeply grateful for it. I also want to thank Senator Cochran, the chairman of the conference on this bill, for his leadership throughout the process. Senator Cochran ably and skillfully represented the Senate position in the negotiations. I particularly want to emphasize that his staff conducted the conference in a fine and fair manner throughout, and it's a credit to his leadership. There are many others Senators who played critical roles in this process, including Senators Crapo, Kyl, Lincoln, McCain, Baucus, and Bingaman. I finally want to thank Senator Wyden, the ranking member on the Forestry Subcommittee of the Energy Committee. He is as good a ranking member and as good a leader on forestry as the Democrats could ever have. I also want to say that I second his views on the meaning of the different parts of the bill in his statement today. As the two principal Democratic negotiators of this bill, he and I are in complete accord as to the meaning of its contents. This legislation H.R 1904, approved by a House-Senate conference committee today is very similar to a bill passed by the Senate last month, with priority given toward removing dead and dying trees and dangerously thick underbrush in areas nearest communities as well as targeting areas where insects have devastated forests. This is especially important in California, where hundreds of thousands of trees have been killed by the bark beetle, creating tinderbox conditions. While the recent wildfires in Southern California have been contained, these deadly fires consumed a total of 738,158 acres, killed 23 people, and destroyed approximately 3,626 residences and 1,184 other structures. Clearly, we must do everything we can to avert such a catastrophe in the future. The National Forest Service estimates that 57 million acres of Federal land are at the highest risk of catastrophic fire, including 8.5 million in California, so it is critical that we protect our forests and nearby communities. More than 57 million acres of Federal land at the highest risk of catastrophic fire, including 8.5 million in California. In the past 5 years alone, wildfires have raged through over 27 million acres, including nearly 3 million acres in California. It is critical that Congress acts to protect our forests and nearby communities. The House-Senate agreement both speeds up the process for reducing hazardous fuels and provides the first legal protection for old growth in our nation's history. Let me describe what the legislation would do. Critically, it would establish an expedited process so the Forest Service and the Department of the Interior can get to work on brush- clearing projects to minimize the risk of catastrophic wildfire. Up to 20 million acres of lands near communities, municipal watersheds and other high-risk areas can be treated. This includes lands that have suffered from serious wind damage or insect epidemics, such as the bark beetle. We made an important change to the bill's language in section 102(a)(4) in the conference report. In the Senate-passed bill, the insect and disease exception was related to infestations, whereas in the conference bill, the exception has been clarified to apply only where there is a presence of an epidemic of insects or disease. By its own terms, an insect or disease-related event of ``epidemic'' proportions is different from ``endemic'' insects and disease, which are present in a naturally functioning forest ecosystem. Under the final bill, only epidemics are given special treatment. This is an important distinction. A total of $760 million annually for hazardous fuel reduction is authorized by the legislation, a $340 million increase over current funding. At least 50 percent of the funds would be used for fuels reduction near communities. The legislation also requires that large, fire-resilient, old-growth trees be protected from logging immediately. It mandates that forest plans that are more than 10 years old and most in need of updating must be updated with old growth protection consistent with the national standard within 2 to 3 years. Without this provision in the amendment, we would likely have to wait a decade or more to see improved old-growth protection. And even then there would be no guarantee that this protection--against the threat of both logging and catastrophic fire--would be very strong. In California, the amendment to the Sierra Nevada Framework that is currently in progress will have to comply with the new national standard for old-growth protection. Let me explain how the agreement improves and shortens the administrative review process and makes it more collaborative and less confrontational. It is critical that the Forest Service can spend the scarce dollars in the federal budget in doing vital work on the ground, rather than being mired in endless paperwork. The legislation fully preserves multiple opportunities for meaningful public involvement. People can attend a public meeting on every project, and they can submit comments during both the preparation of the environmental impact statement and during the administrative review process. I guarantee you the public will have a meaningful say in these projects. The legislation changes the environmental review process so the Forest Service still considers the effects of the proposed project in detail, but can focus its analysis on the project proposal, one reasonable alternative that meets the project's goals and the alternative of not doing the project, instead of the 5-9 alternatives now often required. In the highest priority areas within 1\1/2\ miles of communities, the Forest Service need only study the proposed action and not alternatives. There is no relaxation from current law, however, in how closely the Forest Service must study the environmental effects of the project it is proposing to undertake. The legislation replaces the current Forest Service administrative appeals with an administrative review process that will occur after the Forest Service finishes its environmental review of a project, but before it reaches its decision. This new approach is similar to a process adopted by the Clinton administration in 2000 for review of forest plans and amendments to those plans. The process will be speedier and less confrontational than the current administrative appeal process. Next I want to turn to judicial review. I want to emphasize that cases will be heard more quickly under the legislation and abuses of the process will be checked, but nothing alters citizens' opportunity for fair and thorough court review. Parties can sue in Federal court only on issues raised in the administrative review process. This is a commonsense provision that allows agencies the opportunity to correct their own mistakes before everything gets litigated. Lawsuits must be filed in the same jurisdiction as the proposed project. Courts are encouraged to resolve the case as soon as possible. Preliminary injunctions are limited to 60 days, although they can be extended if appropriate. This provision sends a signal to courts not to delay important brush-clearing projects indefinitely unless there really is a good reason to do so. The court must weigh the environmental benefit of doing a given project against its environmental risks as it reviews the case. In closing, I want to say that my colleagues and I have been trying to come to an agreement on a forest bill for several years. We finally broke through the deadlock. I am deeply pleased that we are enacting this legislation to give the residents of southern California and elsewhere a better chance against the fires that will come next time. Section 105(c)(3)(B)

Mrs. FEINSTEIN. I have a question for the Senator from Oregon as to the meaning of one specific provision of the conference report on the Healthy Forests Restoration Act of 2003. This provision is section 105(c)(3)(B), which sets forth an exception to the general requirement that parties must participate in the administrative review process before raising claims in Federal court. I don't understand the conference report and statement of the managers as doing anything to change the parties' preexisting obligations as to environmental review except as explicitly provided in the statute. Do you agree, as the ranking member on the Subcommittee on Public Lands and Forests of the Senate Committee on Energy and Natural Resources?