Bob Graham

Mr. GRAHAM

Mr. GRAHAM. Mr. President, reserving the right to object, and I hope not to, will the Senator from Georgia add at the end of the statement by the Senator from West Virginia 20 minutes. I had 20 minutes earlier in the day which was taken for another purpose. I would request 20 minutes at the conclusion of the Senator from West Virginia in morning business.

Mr. GRAHAM. Mr. President, I will withdraw my objection at this time, but I want to alert the Senate that at some time I will be reinitiating my request for 20 minutes for purposes other than that which I am going to speak in conjunction with my colleague and friend from Virginia.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I ask unanimous consent that, immediately upon the conclusion of the remarks of the Senator from West Virginia, I might have 30 minutes to speak on another subject.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GRAHAM. Mr. President, if Senator Nunn would care to make any comments, I would be pleased to defer to him.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, we will soon begin a debate on the conference report entitled ``Illegal Immigration Reform and Immigrant Responsibility Act of 1996.'' I am concerned that, when we commence that debate, we are not going to be in as advanced a position as we should be, for several reasons--two in particular. One of those is that, when this legislation was considered in the House of Representatives, a provision was attached which would have given to individual States the prerogative of denying public education, elementary and secondary education, to the children of illegal immigrants. That provision became so inflammatory that it tended to focus total attention on this legislation on that single provision. That provision has now been eliminated. It has been withdrawn. Therefore, we are now focusing for the first time on the totality of this legislation. A second reason why we are not in as advanced a position as we should be for legislation which is as significant as this, has to do with the process by which this conference committee prepared its report. First, it was an elongated process that took many weeks and months to reach the conclusion that is now before us. But it was also essentially a closed process. Not only were many of the members of the conference committee not given the opportunity to participate, at the conclusion of the conference they were not even allowed to offer amendments to try to modify provisions which were found to be objectionable. So we have a product today which has not had the kind of thoughtful dialog and debate which we associate with a conference report which is presented to the U.S. Senate for final consideration. For this reason, I joined those who urge that objectionable provisions in this act--and I will use the bulk of my time to attempt to outline what I consider some of those objectionable provisions--be excised, be eliminated, from this conference report, or, failing to do so, then that the conference report, regrettably, be rejected. I speak to this position based on some principles of fundamental fairness to all of those who will be affected by this legislation entitled ``Illegal Immigration Reform and Immigrant Responsibility Act of 1996.'' I speak not only for the legal immigrants who will feel the full weight of this report, which is supposed to deal not with legal immigrants, but, by its title, with illegal immigration; but I also speak of the apparent, and not so apparent, adverse effects that this will have on the States and local communities in which most of the persons affected live. This Congress has spent an enormous amount of time discussing immigration. I fully support the mandates which were passed to help assure that individuals do not enter this country illegally. The U.S. Government has a fundamental responsibility to enforce the laws which this Congress passes. Unfortunately, we have failed to do so as it relates to our immigration laws, and, thus, we have millions of illegal aliens within our society. I am proud of the fact that this legislation includes steps such as strengthening our Border Patrol. These are the hard-working officers who are our first line of defense against illegal immigration. I do not contest, but, in fact, fully support, better enforcement and funding to prevent illegal immigration, including those steps that would demagnetize jobs as a reason why illegal aliens come to the United States. Our Government has brought an unfair and strenuous burden to many States in the form of allowing thousands, in some cases millions, of illegal immigrants to enter within their borders. Florida has been particularly affected because of its unique geographic location, its diverse population, its temperate climate. Our Government, for several decades, has made Florida the gateway to immigrants arriving from South America and the Caribbean basin. A large majority of those who seek to be called Americans are Floridians. These new arrivals, those who come legally, those who come playing by the rules, are, in large part, law-abiding citizens. They work hard, they pay taxes, they ask nothing of our Government other than the opportunity to eventually be called a citizen of the United States of America. But on occasion, as may happen to native-born Americans, a circumstance arises where assistance is needed. In the past, our State and local communities have scraped by doing all that was possible to assist these newcomers. The Federal Government was frequently a partner of States and communities in providing assistance in unexpected emergency conditions. Mr. President, we are now faced with the prospect of trying to continue our humanitarian efforts without that Federal partner and, thus, with even fewer resources available from the National Government a greater demand for those resources from the States and local communities which are affected. In some ways, we have come to the conclusion that eliminating even minimal benefits to legal immigrants will somehow solve our illegal immigration problem. This is not true. In reality, it only hurts those who follow the rules, those who made every effort to enter the United States in a lawful, orderly, documented manner, and it hurts our communities, it hurts those cities and towns that provide services to legal immigrants and now will receive no assistance from the Federal Government. This, Mr. President, is wrong. We speak so often of the Federal-State partnership. The Federal Government, in this case, is no longer a partner to our States and communities. This is unfair--and for many reasons, of which I will only discuss a few this evening. It is within the purview and responsibility of Congress to act to end and to avoid further extension of this unfairness. My State of Florida brought suit in the Federal courts, brought suit on the basis that our State had been asked to shoulder hundreds of millions of dollars of responsibilities for legal and illegal immigrants, responsibility which should have been a national obligation. As the 11th Circuit Court of Appeals explained in its 1995 decision, Chiles versus the United States: The overall statutory scheme established for immigration demonstrates that Congress intended whether the Attorney General is adequately guarding the borders of the United States to be ``committed to agency discretion by law'' and, thus, unreviewable. Florida must seek relief in Congress. We conclude that whether the level of illegal immigration is an ``invasion'' of Florida and whether this level violates the guarantee of a republican form of government presents nonjusticiable political questions. Essentially, what the court was saying is, do not come to us for justice. You must seek justice in the political arm of the Federal Government, the Congress of the United States. I state tonight, Mr. President, that the legislation which is before us is not just and does not treat our communities and our States fairly. What are some of the bill of complaints against this legislation, that it is unfair to the States and communities of America? Let me list a few of those complaints. This legislation extends a concept which has been in our immigration law and which was used extensively in the immigration changes made as part of the welfare reform bill passed earlier in this session of Congress, referred to as ``deeming.'' What is deeming? Deeming, essentially, is a concept that states that the income of the individual who sponsored a legal immigrant into the United States is deemed--d-e-e-m-e-d--deemed to be the income of the person who was sponsored. This concept of deeming is now applied to persons who came into the United States in the past, when the concept behind the law of sponsorship was different, where the sponsor's affidavit of sponsorship was not legally enforceable. The rules have changed on these law-abiding citizens in the middle of the game. The sponsor who put his name behind a legal immigrant coming to the United States under the rules that existed up to 5 years ago is now being told retroactively, ``You have just taken on very significant new financial responsibilities.'' Under the welfare bill, these new deeming restrictions only apply to newly arrived immigrants. Under this conference report, deeming is applied retroactively to legal immigrants who came to the United States within the last 5 years. As a result, sponsored legal immigrants who came into the United States under the old rules stand to lose access to dozens of programs, including prenatal care, nonemergency Medicaid, Head Start and job training. These provisions will require a further cost shift to the States who will now have to shoulder the burden of these Federal programs which will no longer be available. Another item in that bill of particulars of unfairness is Medicaid. Even though the welfare bill contains no immigrant restrictions on the use of emergency Medicaid, the conference report provides that if a legally sponsored immigrant has an emergency and uses Medicaid, the sponsor becomes liable for the entire cost of care, without limitation. What does this mean, Mr. President? This means that if a sponsor has brought in a legal immigrant and that legal immigrant is hit by a truck or contracts cancer or any of the other items that might result in a serious emergency circumstance, the sponsor would be legally responsible for all of those medical costs. Realistically, most sponsors would not be able to pay, and, therefore, what will happen? This will just become another uncompensated burden on the hospital or health care provider. While I support the idea that sponsors should be required to provide housing, food, or even cash assistance to immigrants who have become unable to provide for themselves, even the most responsible sponsor may not always be able to finance health care, care for illness or serious disease or injury. Mr. President, as I said, we are going to apply, retroactively, standards to those persons who have sponsored legal aliens, such as their parents or a child, into the United States and now, retroactively, are going to have to take on additional responsibilities which were unknown to them at the time that they entered into that sponsorship relationship. Also, I will discuss some of the changes which have been made in Medicaid, the program that provides health care to indigent Americans, which today is available to legal--legal--aliens. I underscore that difference between those persons who are here because they follow the rules and those persons who are in the country because they broke the rules. We are talking now exclusively about people who are here legally. One of the changes that has been made in the Medicaid Program states that a sponsor, including those who are being swept up in this retroactive provision, will now have to be financially responsible for the emergency medical services provided under Medicaid to those persons who they have sponsored into this country. If their mother that they sponsored contracts cancer, or a child is hit by a car and suffers a serious injury, those kinds of costs now will become the responsibility of the sponsor. Even more egregious, if the sponsor is unable to meet those expenses, it then becomes an obligation of the provider to accept those costs as unreimbursed medical expenses. In most cases, they are going to end up being the unreimbursed medical expenses of an emergency room in a public hospital. One final part of this is that if the sponsor can't pay, and if the person who they sponsored can't pay, then that sponsored individual will be barred from becoming a naturalized citizen of the United States until the bill is paid, which means that this child, who may have suffered this injury in youth, is going to be permanently precluded from becoming a U.S. citizen, unless they are able to achieve a financial status to pay off this emergency medical bill. A third problem with this legislation, Mr. President, relates to the treatment of communicable diseases. This conference report, I find, unbelievably, provides that under no circumstances will the Federal Government provide funding for the treatment of HIV and AIDS-infected patients who are legal immigrants. This, I thought initially, this must have been a misprint. But when you read the conference report on page 239, it states explicitly, The exception for treatment of communicable diseases is very narrow. The managers intend that it only apply where absolutely necessary to prevent the spread of such diseases. The managers do not intend that the exception for testing and treatment for communicable diseases should include treatment for the HIV virus or Acquired Immune Deficiency Syndrome. I represent a State where we have many persons who come from areas of the world--many within this hemisphere--which have a high incidence of HIV and AIDS. What this bill says is if a person is in this country as assailees, refugees, parolees, or whatever status, is found to have HIV or AIDS, the Federal public health service cannot use its resources to treat those persons. Mr. President, I find this to be unbelievable. Are we just going to ignore this deadly disease and hope that, for humanitarian reasons, or public health concerns, the State or local agency will again shoulder this national obligation for persons who are in this country under national immigration laws? The Medicaid provisions, the deeming provisions, and sponsor affidavits are currently nothing more than a means of shifting costs to States, local government agencies, and our Nation's hospital system. Simply, if people are sick and cannot afford to pay for coverage of a disabling condition, somebody will absorb those costs. The question is whether the Federal Government will help to pay a portion of that cost, or whether such cost will be shifted entirely to States, local governments, and health care providers. This bill does not protect the health care providers, even though it is the Federal Government's health care policy which requires the health care provider to render such medical assistance. The Federal Emergency Medical Treatment and Labor Act requires that all persons who come to a Medicare-participating hospital for emergency care be given a screening examination to determine if they are experiencing a medical emergency, and if they are found to be experiencing such a medical emergency, that they receive stabilizing treatment before being discharged or moved to another facility. Federal law requires all hospitals that have emergency rooms, that receive Medicare participation, must provide those services, without regard to the ability of the person who has presented themselves for such care to pay. And now we are saying that the Federal Government is going to be a ``deadbeat dad'' by sticking those health care providers with the full cost, without a Federal sharing and participation. Mr. President, the National Conference of State Legislatures, the National Association of Counties, and the National League of Cities, has written on April 25 of this year, in anticipation of just exactly what is before us now, with the following statement: Without Medicaid eligibility, many legal immigrants will have no access to health care. Legal immigrants will be forced to turn to State indigent health care programs, public hospitals, and emergency rooms for assistance, or avoid treatment altogether. This will in turn endanger the public health and increase the cost of providing health care to everyone. For the Medicaid caseworker as well as all other State and Federal programs he or she must now learn immigration law as well and the Medicaid system. As a study by the National Conference of State Legislatures notes, this conference report would require an extensive citizenship verification made for all applicants to the Medicaid Program. In addition to the costs to determine eligibility, States will also have infrastructure, training and ongoing implementation cost associated with the staff time needed to make a complicated deeming calculation. The result will be a tremendous, costly and bureaucratic unfunded mandate on State Medicaid Programs. Mr. President, another item in the bill of particulars of unfairness of this immigration bill relates to parolees and their inability to work. I would put this in the specific context of an agreement which the United States had entered into with Cuba. Under that agreement which was intended to avoid another repetition of the mass rafting explosion which we have experienced on several occasions since Fidel Castro came to power in Cuba, the United States now allows 15,000 Cuban immigrants per year to enter the United States. Approximately 10,000 of those who have arrived per year under this agreement have been under the category of parolees. Under this bill, as parolees they will be prohibited from working in most jobs 1 year after they arrive here. How can that be? It can be because the conference report provides that after 1 year of entry into the United States, a person who is legally in this country, classified as a parolee for humanitarian reasons, would be ineligible to obtain or maintain the following: They could not receive any State or Federal grants; any State or Federal loan; any State or Federal professional license; and, believe this, Mr. President: They could not receive a State driver's license or a commercial license. Where are these legal immigrant parolees going to work without a driver's license, without a work permit, without a commercial license? Who will assume the burden of caring for these legal immigrant parolees who are in our country? Of course, the cost of their care will shift to the local community, even though it was through Federal Government action--and in the case of the United States-Cuban agreement, Federal Government foreign policy considerations, which brings them to this country in the first place, and then tells them that they cannot drive and that they cannot hold a job. The conference report that is before us is a huge cost shift to State and local governments that will impose an administrative burden and huge unfunded mandate on State governments to verify eligibility for applicants. Mr. President, one of the first priorities of this 104th Congress was S. 1, the Unfunded Mandate Reform Act of 1995. It was a top priority of the House of Representatives. It passed both bodies in the first 100 days of this session. The purpose section of the Unfunded Mandate Act stated that the: Purposes of this act are to strengthen the partnership between the Federal Government and State, local, and tribal governments to end the imposition in the absence of full consideration by Congress of Federal mandates on State, local, and tribal governments without adequate Federal funding. Mr. President, this conference report breaks every premise and breaks every basis of the unfunded mandate law because this conference report on immigration requires all Federal, State, and local means-tested programs, as well as programs such as State driver's licenses, State licensing departments, for State occupational licenses as well as any grant or funding to first determine whether the individual applying is an eligible immigrant. The National Conference of State Legislatures just yesterday, September 26, 1996, indicated that the mandates of this conference report will: impose new unfunded mandates on State and local governments regarding deeming requirements for determining immigrant eligibility for all Federal means-tested programs. These provisions create new unfunded Federal mandates, defying the intent of the S. 1, the Unfunded Mandates Reform Act. This bill requires States to deem many immigrants currently residing in the United States who do not have enforceable affidavits of support. These requirements will place an excessive administrative burden on States by shifting massive costs to State budgets. As we have consistently stated on numerous issues, if the Federal Government expects States to administer Federal programs related to Federal responsibilities, full Federal funding must be provided. What are some examples of this massive shift? Let me use the example of my own home State of Florida. For professional and driver's licenses, the State of Florida estimates that it will cost approximately $31 million to verify and recertify 13.7 million driver and professional licenses. This figure does not include State administration and initiation costs, nor does the figure include the amount it will cost to verify new applications for these licenses. This is just the cost to verify those that are already outstanding. Occupational licenses: To determine eligibility for occupational licenses based on immigration status, it is estimated that $16 million annually will be passed on to the small businesses of my State of Florida. AIDS patients: Jackson Memorial Hospital in Miami alone cares for between 1,500 and 2,000 noncitizen AIDS patients annually. The estimated cost to treat noncitizen AIDS patients for this one hospital will be at least $4 million a year. Mr. President, in summary, this conference report violates basic concepts of fairness and adds new and, in many cases, retroactive restrictions on legal immigrants. It imposes cost shifts to local and State governmental agencies in order to comply with its unfunded mandates. It violates the legislation which we passed and which we have taken great pride in: The Unfunded Mandate Reform Act of 1995. If this is not an unfunded mandate, what could be an unfunded mandate? As currently drafted, the conference report would have the following negative consequences: It shifts costs to States, local governments, and hospitals; it imposes an administrative unfunded mandate on State Medicaid programs; and it is not cost effective. Mr. President, I ask unanimous consent to have printed in the Record immediately after my remarks a series of documents, including letters from the National Association of Counties, from the National Conference of State Legislatures, editorials which have appeared criticizing sections of this immigration conference report, and a letter from the Governor of Florida outlining the impact that this will have on our State.

Mr. GRAHAM. Mr. President, for the reasons stated, I urge that this Senate, before it takes up at this late hour important legislation which will have the kind of far-reaching effect that this immigration bill will have, that we consider carefully the impact that this is going to have on the States and communities that we represent. I urge that we either delete those provisions from this conference report or that the conference report be rejected. I thank the Chair.

Mr. GRAHAM. I yield back the remainder of my time. Exhibit 1 NACo National Association of Counties, Washington, DC, September 26, 1996. Hon. Bob Graham, U.S. Senate, Washington, DC. Dear Senator Graham: I am writing to urge you to exclude from the conference agreement on immigration (H.R. 2202) provisions that mandate new federal requirements for certificates and drivers licenses, and adds new deeming requirements to determine immigrant eligibility for federal means tested programs. The National Association of Counties (NACo) considers these provisions to be unfunded mandates as a well as a preemption of local authority. While NACo shares the goal of solving the problems posed by illegal immigration, we urge you to oppose the bill if these provisions are not deleted from the conference report. Although the birth certificate and drivers' license provisions have improved somewhat by extending the implementation date and making a general reference to federal grant funds, these changes are minimal. Extending the implementation date may avoid the Unfunded Mandates Reform Act threshold of $50 million a year, but it masks the fact that county and state governments will still have to bear the brunt of these expenses. Additionally, these are documents that fall clearly under the jurisdiction of state and local governments. Mandating federal standards on these documents preempts state and local authority and is a hardship on citizens and noncitizens alike. The deeming requirements in the conference agreement go beyond the stringent requirements in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193). This law already made the affidavits of support enforceable and extended deeming to federal means tested programs for immigrants with new affidavits of support. The conference agreement, however, would also applying deeming to current legal residents who do not have enforceable affidavits of support. By making this retroactive change, the bill places additional administrative burdens on counties and shifts more costs from the federal programs to county general assistance programs. NACo appreciates your consideration of these issues. We urge you again to removed these provisions from the conference agreement, or vote against the legislation if they continue to be included. Sincerely, Larry Naake, Executive Director.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I appreciate the opportunity this afternoon to join my friend and colleague from Virginia in the introduction of this important legislation. I believe there are a couple of historical notes that should be made at this time. First is, we are introducing legislation to carry on a program which will expire 368 days from today. By introducing this legislation today, we are giving to our colleagues--but more important to the millions of Americans who will be affected by this legislation--more than a year to give full consideration to the policy proposals which we are advancing. We are doing that at the very time that, here on the Senate floor, other important matters are being denied that kind of full attention and exploration. I commend the Senator from Virginia for his vision and his farsightedness in making it possible for such a dispassionate, thoughtful consideration of this important legislation.

Mr. GRAHAM. The second historical point is consistent with what my friend from Virginia has just said, and that is we are at a new point of departure for our surface transportation system. We could date the current era with adoption of the Interstate Highway Act during the administration of President Eisenhower. We have had a great national objective over almost a half century, to link America with the highest standards of highway engineering, design and construction and maintenance. We have largely accomplished the task that we set out for ourselves in the 1950's. Now the question is, what will this generation's contribution be to America's transportation for the first half of the 21st century? The decisions that we will be making in 1997 will be an important step toward answering that question of what we shall do for the future of America's transportation. I am pleased to cosponsor this important legislation which has a number of significant provisions. One of those provisions is the need for equity in the funding of our highway system. In report after report--and I bring to the Senate's attention just two of many. One, a report in 1985, ``Highway Funding, Federal Distribution Formulas Should Be Changed,'' which was produced prior to the 1991 act upon which we are currently distributing our Federal highway funds, and then a second dated November of 1995, 4 years after the adoption of the 1991 Highway Act, which is entitled ``Highway Funding Alternatives for Distributing Highway Funds'' in which it states that ``the formula process in the current law is cumbersome, yielding a largely predetermined outcome and partially relies on outdated and irrelevant factors.'' So, Mr. President, in spite of repeated reports pointing out shortcomings in our past and current distribution laws, we still are subject to the criticism of being cumbersome, predetermined, and outdated and irrelevant in our distribution facts. One of the important objectives of this legislation that we introduced today is to bring greater rationality and modernity into our distribution of highway funds while we also strive to give greater flexibility to the States that have the responsibility for administering these funds. I am glad that we commenced the debate today. I look forward to more than a year of opportunity to move this idea into a form that can come before the Senate and our colleagues in the House for passage and to usher in a new postinterstate era for American highway transportation.

Mr. GRAHAM

Mr. GRAHAM. I would like to add to that unanimous-consent request that at the conclusion of the Senator's remarks, I be allowed to speak for 15 minutes for purposes of introduction of legislation.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I send to the desk this legislation, and request its immediate referral.

Mr. GRAHAM. Mr. President, today I will introduce legislation entitled Medicare Access to Emergency Medical Care Act, joined by Senators Grassley, Moseley-Braun, Chafee, Baucus, Jeffords, Simon, Hollings, and Wellstone. This legislation would require Medicare health maintenance organizations to pay for emergency care services provided to prudent beneficiaries seeking emergency care and would preclude health maintenance organizations from requiring prior authorizations in such situations. This language, Mr. President, was previously approved by unanimous consent in the Senate during consideration of the Balanced Budget Act of 1995. Why is this bill necessary? Mr. President, lack of a ``prudent lay person'' definition places Medicare beneficiaries in the unreasonable position of having emergency room visits for experiences, such as chest pain, denied for reimbursement by managed care organizations, in some cases significantly subsequent to the visit to the emergency room. Why denied? Denied because the beneficiary did not seek prior authorization, or denied because the beneficiary was diagnosed not to have an emergency condition, even if a reasonable person believed that they had an emergency condition. According to the congressionally established Physician Payment Review Commission's 1996 annual report to Congress: Medicare requires health plans to provide or pay for care needed in an emergency, but what constitutes an emergency may be misunderstood or disputed by plans and beneficiaries. The definition of ``emergency'' is central to resolve such disputes and guide beneficiaries before they seek emergency care. Mr. President, currently, 60 percent of the claims that are disputed between Medicare beneficiaries and managed care plans involve emergency room services. Let me repeat that. Sixty percent of the claims that are disputed between Medicare beneficiaries and managed care plans involve emergency room services. As a result, the Physician's Payment Review Commission recommends, ``A prudent lay person's perspective should be considered as one of the factors in determining when a health plan that participates in Medicare should pay for initial screening and stabilization, if necessary, in an emergency. That is the standard which this legislation adopts. This legislation would protect Medicare beneficiaries who appear to act prudently from the perspective of a lay person--such as thinking that chest pain may be an indication of a heart attack and seeking emergency care. It would protect those Medicare beneficiaries from facing substantial, or in some cases even catastrophic, financial liabilities. The irony of this situation is that the Federal Emergency Medical Treatment and Labor Act requires that all persons who come to a Medicare- participating hospital for emergency care be given a screening examination to determine if they are experiencing a medical emergency and, if so, that they receive stabilizing treatment before being discharged or moved to another facility. And that facility, that Medicare-participating hospital emergency room is required to provide those services without regard to the financial ability of the individual to pay. As a result, emergency room doctors and hospitals face a Catch-22. They are required by Medicare law and their own professional ethics to perform diagnostic tests and examinations to rule out emergency conditions. But those same health care providers may be denied reimbursement due to prior authorization requirements or a finding that the condition was not of an emergent nature, even though symptoms, such as extreme pain, shortness of breath, chest pains, loss of blood, or others, would prompt most lay persons to conclude that they need to seek medical care immediately. Dr. Paul Lindeman wrote in an article in the Miami Herald on July 30, 1995, about an 85-year-old woman with a hip fracture who was denied admission to his hospital's emergency department by her health maintenance organization so that she could be transferred to an emergency department across town. The patient had to wait 3 hours for the HMO ambulance service. According to Dr. Lindeman, ``No matter how well-trained or talented the emergency physician, there are also times when he or she requires the urgent services of a consultant to provide definitive care for a patient (for instance, vascular and orthopedic surgeons to repair a severely traumatized limb). In these cases, delays in care due to managed care bureaucracy can become a legitimate hazard to the patient.'' Now, Mr. President, some might be concerned that this legislation would preclude health maintenance organizations from limiting reimbursement for frivolous emergency room use and abuse by some beneficiaries. Such concern is unwarranted because this legislation does not prevent managed care plans from retrospectively reviewing services delivered in the hospital emergency department to Medicare beneficiaries. All it does is require the plans to base their review on whether the patient acted prudently given the patient's symptoms. Frivolous or abusive emergency room use by a patient would not be prudent and, therefore, could still be denied by the HMO. Mr. President, in 1993, the Network Design Group, a group which is best known for their work as a national mediator and arbiter of disputes between Medicare beneficiaries and their health maintenance organizations, wrote a report for the Federal Government. In that it stated, ``Definitions of `emergency' in regulation should be modified so that a reasonable and prudent lay person can anticipate claims that would be covered versus denied.'' Michael Stocker, the president and chief executive officer of Empire Blue Cross/Blue Shield in New York, argued a similar point in an editorial entitled ``The Ticket To Better Managed Care,'' which was published in the New York Times on October 28, 1995. Mr. Stocker wrote, ``At times, managed care is a euphemism for cost-cutting that puts the patient second. Because of the industry's financial success, too few organizations are paying attention to people's rising worries about how they will fare in HMO's that restrict access to specific doctors and hospitals.'' Mr. Stocker further argues that plans must ``provide high-quality service in ways that can be proved and readily understood.'' As part of providing quality of care to patients that is readily understood, Mr. Stocker concludes that, ``Health plans should pay for emergency room coverage for consumers who believe they have a legitimate emergency, even if it turns out that they do not.'' That is a perfect description of this bill's ``prudent lay person'' standard. Finally, since the Federal Government and beneficiaries are paying through Medicare for emergency room services--that is, emergency room services are on the list of medical services that a Medicare beneficiary contracts to receive when they join a health maintenance organization--it makes sense to require that those services be provided and paid for on a reasonable basis. Without it, Medicare becomes like a horribly ineffective Government program where money goes in but results and the delivery of services are lacking to the beneficiary. We in this Congress have a financial responsibility to demand that the services which we pay for are being delivered. Mr. President, as we know managed care is becoming an increasing part of our health care system as it relates to Medicare beneficiaries. In 1990, there were only 3.5 percent of all Medicare beneficiaries enrolled in a managed care plan. Today that number exceeds 9 percent. The importance and need for this legislation will only increase as more and more Medicare beneficiaries are encouraged to elect managed care over fee-for-service as the form of receiving their Medicare services. As a result, with the cosponsors, a broad bipartisan group of my colleagues, I am introducing this important legislation today. And I urge its adoption in the remaining days of this session, or in the next Congress. Mr. President, I ask unanimous consent that copies of newspaper articles which I have cited from the Miami Herald and the New York Times regarding this issue be printed in the Record.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I send to the desk this legislation, and request its immediate referral.

Mr. GRAHAM. Mr. President, today I will introduce legislation entitled Medicare Access to Emergency Medical Care Act, joined by Senators Grassley, Moseley-Braun, Chafee, Baucus, Jeffords, Simon, Hollings, and Wellstone. This legislation would require Medicare health maintenance organizations to pay for emergency care services provided to prudent beneficiaries seeking emergency care and would preclude health maintenance organizations from requiring prior authorizations in such situations. This language, Mr. President, was previously approved by unanimous consent in the Senate during consideration of the Balanced Budget Act of 1995. Why is this bill necessary? Mr. President, lack of a ``prudent lay person'' definition places Medicare beneficiaries in the unreasonable position of having emergency room visits for experiences, such as chest pain, denied for reimbursement by managed care organizations, in some cases significantly subsequent to the visit to the emergency room. Why denied? Denied because the beneficiary did not seek prior authorization, or denied because the beneficiary was diagnosed not to have an emergency condition, even if a reasonable person believed that they had an emergency condition. According to the congressionally established Physician Payment Review Commission's 1996 annual report to Congress: Medicare requires health plans to provide or pay for care needed in an emergency, but what constitutes an emergency may be misunderstood or disputed by plans and beneficiaries. The definition of ``emergency'' is central to resolve such disputes and guide beneficiaries before they seek emergency care. Mr. President, currently, 60 percent of the claims that are disputed between Medicare beneficiaries and managed care plans involve emergency room services. Let me repeat that. Sixty percent of the claims that are disputed between Medicare beneficiaries and managed care plans involve emergency room services. As a result, the Physician's Payment Review Commission recommends, ``A prudent lay person's perspective should be considered as one of the factors in determining when a health plan that participates in Medicare should pay for initial screening and stabilization, if necessary, in an emergency. That is the standard which this legislation adopts. This legislation would protect Medicare beneficiaries who appear to act prudently from the perspective of a lay person--such as thinking that chest pain may be an indication of a heart attack and seeking emergency care. It would protect those Medicare beneficiaries from facing substantial, or in some cases even catastrophic, financial liabilities. The irony of this situation is that the Federal Emergency Medical Treatment and Labor Act requires that all persons who come to a Medicare- participating hospital for emergency care be given a screening examination to determine if they are experiencing a medical emergency and, if so, that they receive stabilizing treatment before being discharged or moved to another facility. And that facility, that Medicare-participating hospital emergency room is required to provide those services without regard to the financial ability of the individual to pay. As a result, emergency room doctors and hospitals face a Catch-22. They are required by Medicare law and their own professional ethics to perform diagnostic tests and examinations to rule out emergency conditions. But those same health care providers may be denied reimbursement due to prior authorization requirements or a finding that the condition was not of an emergent nature, even though symptoms, such as extreme pain, shortness of breath, chest pains, loss of blood, or others, would prompt most lay persons to conclude that they need to seek medical care immediately. Dr. Paul Lindeman wrote in an article in the Miami Herald on July 30, 1995, about an 85-year-old woman with a hip fracture who was denied admission to his hospital's emergency department by her health maintenance organization so that she could be transferred to an emergency department across town. The patient had to wait 3 hours for the HMO ambulance service. According to Dr. Lindeman, ``No matter how well-trained or talented the emergency physician, there are also times when he or she requires the urgent services of a consultant to provide definitive care for a patient (for instance, vascular and orthopedic surgeons to repair a severely traumatized limb). In these cases, delays in care due to managed care bureaucracy can become a legitimate hazard to the patient.'' Now, Mr. President, some might be concerned that this legislation would preclude health maintenance organizations from limiting reimbursement for frivolous emergency room use and abuse by some beneficiaries. Such concern is unwarranted because this legislation does not prevent managed care plans from retrospectively reviewing services delivered in the hospital emergency department to Medicare beneficiaries. All it does is require the plans to base their review on whether the patient acted prudently given the patient's symptoms. Frivolous or abusive emergency room use by a patient would not be prudent and, therefore, could still be denied by the HMO. Mr. President, in 1993, the Network Design Group, a group which is best known for their work as a national mediator and arbiter of disputes between Medicare beneficiaries and their health maintenance organizations, wrote a report for the Federal Government. In that it stated, ``Definitions of `emergency' in regulation should be modified so that a reasonable and prudent lay person can anticipate claims that would be covered versus denied.'' Michael Stocker, the president and chief executive officer of Empire Blue Cross/Blue Shield in New York, argued a similar point in an editorial entitled ``The Ticket To Better Managed Care,'' which was published in the New York Times on October 28, 1995. Mr. Stocker wrote, ``At times, managed care is a euphemism for cost-cutting that puts the patient second. Because of the industry's financial success, too few organizations are paying attention to people's rising worries about how they will fare in HMO's that restrict access to specific doctors and hospitals.'' Mr. Stocker further argues that plans must ``provide high-quality service in ways that can be proved and readily understood.'' As part of providing quality of care to patients that is readily understood, Mr. Stocker concludes that, ``Health plans should pay for emergency room coverage for consumers who believe they have a legitimate emergency, even if it turns out that they do not.'' That is a perfect description of this bill's ``prudent lay person'' standard. Finally, since the Federal Government and beneficiaries are paying through Medicare for emergency room services--that is, emergency room services are on the list of medical services that a Medicare beneficiary contracts to receive when they join a health maintenance organization--it makes sense to require that those services be provided and paid for on a reasonable basis. Without it, Medicare becomes like a horribly ineffective Government program where money goes in but results and the delivery of services are lacking to the beneficiary. We in this Congress have a financial responsibility to demand that the services which we pay for are being delivered. Mr. President, as we know managed care is becoming an increasing part of our health care system as it relates to Medicare beneficiaries. In 1990, there were only 3.5 percent of all Medicare beneficiaries enrolled in a managed care plan. Today that number exceeds 9 percent. The importance and need for this legislation will only increase as more and more Medicare beneficiaries are encouraged to elect managed care over fee-for-service as the form of receiving their Medicare services. As a result, with the cosponsors, a broad bipartisan group of my colleagues, I am introducing this important legislation today. And I urge its adoption in the remaining days of this session, or in the next Congress. Mr. President, I ask unanimous consent that copies of newspaper articles which I have cited from the Miami Herald and the New York Times regarding this issue be printed in the Record.

Mr. GRAHAM

Mr. GRAHAM. I thank the distinguished chairman for his clarification of the issue. state jurisdiction

Mr. GRAHAM. Mr. President, I would like to commend the distinguished chairman for his dedication to the conservation of our Nation's fisheries, the industry, and its beneficiaries. The chairman and his staff have worked very hard to steer this important legislation through the tedious legislative process. I look forward to working with the chairman and the committee in working toward this bill's ultimate success. Mr. President, I would like to ask the chairman a clarifying question regarding an issue that is of great importance to many States, including the State of Florida.

Mr. GRAHAM. The State of Florida has been firmly committed to the conservation of the State's natural resources. In the past year, the National Marine Fisheries Service, and the Regional Fishery Management Council had proposed giving authority to the State over certain fisheries, such as stone crab and spiny lobster, but could not do so because Federal courts have ruled that the States are preempted by the Magnuson Act from regulating in the EEZ. I am pleased, therefore, that the distinguished chairman has included in this reauthorization legislation, a provision which would allow a fishery management council to delegate jurisdiction over certain fisheries in the EEZ to a State, if the State has regulations consistent with the fishery management plan for that area.

Mr. GRAHAM. It is my understanding that the legislation give states the right to regulate any vessels in a fishery that the regional council has designated as being under State jurisdiction, including vessels registered outside that particular State. Is that correct?

Mr. GRAHAM. Now in the case of my State, if the council designates jurisdiction of a particular fishery to the State, the officials in Florida would be able to regulate out-of-State vessels, in that portion of the EEZ, regardless of which ports it utilizes or chooses not to utilize.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I rise today to join my friend Senator Pressler in introducing legislation to celebrate the children of our Nation by establishing National Children's Day on Sunday, October 13, 1996. National Children's Day will enable us to pay tribute to children and to focus on issues that are so important to their health, development, and education, Many children today face crises of grave proportions, especially as they enter adolescent years. It is of particular concern that over 5 million children go hungry at some point each month, and that there has been a 60-percent increase in the number of children needing foster care in the last 10 years. It is also appropriate that adults in the United States have an opportunity to reminisce on their youth to recapture some of the fresh insight, innocence, and dreams that they may have lost through the years. There are times when Congress can enact simple measures that ensure that the needs of our Nation's children are being recognized. It is the least we can do to celebrate the contributions children make in each of our lives and to all America. I urge our colleagues to join us in cosponsoring National Children's Day.

Mr. GRAHAM

Mr. GRAHAM. Mr. President, I believe 15 minutes.

Mr. GRAHAM. And, second, I ask unanimous consent to be listed as a cosponsor of the amendment offered by Senator McCain.

Mr. GRAHAM. I ask the pending amendments be laid aside for purposes of offering an amendment.

Mr. GRAHAM. Mr. President, I send an amendment to the desk.