Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Mr. President, today, along with Senator Bob Graham I am introducing the ``Defense of Medicare and Real Prescription Drug Benefit Act.'' Congressman John Dingell is introducing companion legislation in the House of Representatives. The more senior citizens learn about the legislation President Bush has just signed, the more concerned they are. It's a sweetheart deal for big insurance companies and pharmaceutical companies and a raw deal for senior citizens. It's not really a prescription drug bill. It's an anti-Medicare bill. Our legislation will reverse these destructive policies. Our legislation will protect and preserve Medicare--not turn senior citizens over to the un-tender mercies of HMOs and insurance companies. It will provide prescription drug benefit for senior citizens, without coverage gaps or hidden loopholes. It will protect senior citizens with good retirement coverage from a former employer, and it will protect the poorest of the poor on Medicaid. It will reduce prescription drug costs, by allowing safe importation of drugs from Canada and government negotiations with drug companies for discounts. And it will repeal the program of Health Savings Accounts that help the healthy, wealthy and insurance companies who have contributed heavily to the Republican Party, while harming every family that needs comprehensive, affordable health insurance. The legislation the President signed is designed to destroy Medicare and turn senior citizens over to the un-tender mercies of HMOs. Our legislation will protect Medicare. The legislation the President signed provides a skimpy, inadequate, and unreliable drug benefit. Our legislation provides comprehensive drug coverage and assures that senior citizens can get it everywhere in the country without having to join an HMO or other private plan. The legislation the President signed denies senior citizens the right to get safe drugs at lower prices from Canada and prohibits the government from negotiating with drug companies to get a good deal for senior citizens. This legislation eliminates those special interest, anti-senior provisions. The legislation the President signed allows unfettered Heath Savings Accounts. These accounts are a bonanza for the healthy, the wealthy, and for favored insurance companies, but they are a disaster for ordinary citizens who need comprehensive coverage and can't afford to put thousands of dollars aside to meet medical needs that insurance is supposed to cover. This legislation repeals this unwise policy. Senior citizens want prescription drug coverage under Medicare, and they deserve it. Instead, the President and the Republican Party used their control of Congress to attack Medicare itself and force senior citizens into HMOs and other private insurance plans. They want to privatize Medicare, and if they get away with it, they'll try to privatize Social Security too. Their legislation raises Medicare payments to HMOs so that Medicare can't compete. They use the elderly's own Medicare money to undermine the Medicare program they depend on. According to estimates of the Medicare Actuary, Medicare already pays 16 percent too much for every senior citizen who joins an HMO or other private insurance plan, because these programs attract the healthiest elderly. IN addition, the Republican legislation raises the base payment to 109 percent of what it costs Medicare to care for an average senior citizen, without even taking into account the health selection bonus the HMOs receive. The total overpayment is 25 percent--a whopping $2,000 per senior citizen. And to top it all off, the legislation establishes a $12 billion slush fund for the new PPO program established by the bill. This isn't competition, its corporate welfare--and senior citizens and the Medicare program are the losers. Their legislation also creates a vast social experiment--called the ``premium support'' program--using millions of senior citizens as guinea pigs. The sole purpose of the experiment is to raise Medicare premiums so that senior citizens have to give up their Medicare and join an HMO. Our legislation eliminates these indefensible overpayments and restores parity to the competition between conventional Medicare and private sector alternatives. It repeals the premium support program, so that senior citizens will have choice, not coercion, when they decide whether they prefer conventional Medicare or an HMO. The assistance with prescription drug costs their program provides is actually very little. Overall, it covers less than 25 percent of the drug expenses faced by the elderly. Senior citizens with $1,000 in drug expenses would pay 86 percent of the cost out of their own pockets. Those with $5,000 in drug expenses would pay 78 percent. When senior citizens' drug costs exceed $2,250, they get no benefits at all until their costs reach $5,100, even though they have to continue to pay premiums. And senior citizens won't necessarily have access to the drugs their doctor's prescribe, if they aren't on the formularies of the private insurance companies that will administer the benefit. A bus ticket to Canada would do more to reduce drug costs for senior citizens than this bill. Our legislation fills the gaps in the Medicare benefit, so that it truly meets the needs of the elderly and is comparable to the assistance provided under most private insurance plans and that is available to every member of Congress. It assures that the formularies offered by the insurance companies administering the program are not manipulated by the companies to exclude the drugs senior citizens need most. Nine million senior citizens--almost one of every four--will actually be worse off in their drug coverage under the Bush program than they are today. According to the nonpartisan Congressional Budget Office, almost 3 million senior citizens with good retiree drug coverage through a former employer will lose it as the result of this bill. Six million senior citizens and the disabled who have both Medicare and Medicaid--the poorest of the poor--will actually pay more and have reduced access to the drugs they need. The Bush plan establishes a cruel and demeaning assets test, so that millions of senior citizens with very low incomes are disqualified from the special assistance they need, simply because they have managed to save a little bit for a rainy day, or because they have a car that's worth too much or a burial fund, or personal property like jewelry or furniture. Our legislation addresses these problems. It ends the discriminatory treatment of senior citizens with private retirement coverage, so that employers do not have an incentive to drop this coverage. It restores benefits to dual eligibles--senior citizens with coverage under both Medicare and Medicaid--so that they will not be made worse off by the new program. It eliminates the assets test. The Republican bill does nothing about escalating drug prices. Republicans even had the nerve to include a specific prohibition on any role by the Federal government in any negotiation on drug prices. The Congressional Budget Office has estimated that drug prices will actually increase as the result of this bill. No wonder drug company stocks are soaring and senior citizens are concerned. Our legislation will allow reimportation of drugs from Canada--where drug prices are much lower--with stringent controls to assure that any imported drugs meet FDA standards. It will allow the Federal government to negotiate the best possible price for prescription drugs, so that senior citizens and the Medicare program are no longer victimized by exorbitant prices that have little relationship to costs or value. It's not just seniors who are very concerned. Younger Americans will be hurt too. A separate booby trap in the Republican program includes tax breaks for the healthy and wealthy to buy private policies with very high deductibles that will undermine health insurance for those who are not elderly. These tax breaks, called health savings accounts, encourage people to buy high deductible policies and put money aside in a tax-free savings account. Because the healthy people don't contribute to the cost of regular insurance, premiums skyrocket for people who can't afford thousands of dollars in out-of-pocket costs before their insurance kicks in. The Urban Institute and the American Academy of Actuaries have estimated that premiums for regular insurance policies could increase 60 percent or more. Our bill repeals this unjustified and destructive policy. The President's signing of the Republican legislation yesterday was the beginning of this fight, not the end. We will never rest until we have protected Medicare and provided senior citizens a prescription drug benefit that truly meets their needs. I ask unanimous consent that a summary of the ``Defense of Medicare and Real Prescription Drug Benefit Act'' be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, today I pay tribute to BG Edward M. Harrington, upon his retirement from the United States Army after more than three decades of distinguished service to our Nation. Ed Harrington's military career can truly be described as an American success story. A son of Massachusetts, he grew up in the coastal town of Marshfield, where his family's roots extend back three generations. After graduating from Marshfield High School, he attended Northeastern University in Boston, earning a degree in Business Administration. Before the ink was dry on his diploma, Ed received his draft notice and soon donned the battle dress of an infantryman. It wasn't long until his superior recognized his leadership potential, and he was selected for Officer Candidate School. This marked the beginning of what turned out to be an exemplary career as an officer who rose to the pinnacle of the complex world of acquisition management. As a lieutenant in the Quartermaster Corps, he received orders for Vietnam where he was assigned to the First Cavalry Division. After service in Vietnam, he returned stateside and assumed command of the 259th Field Service Company at Fort Bragg. Then, with family in tow, he headed for Germany, serving in various Signal Command positions. After being promoted to captain, Ed returned to Massachusetts to become a professor of military science at Worcester Polytechnic Institute and Fitchburg State College. In the mid-1980s, Ed's expertise in defense acquisition management prompted his selection for the challenging position of production manager for the M1A1 Abrams Tank at the Tank-Automotive and Armaments Command in Warren, Michigan. There, he met the technical challenge of upgrading the tank's armor plating improving survivability and personnel protection. Years later, he would return to that organization as the Deputy for System Acquisition, a position in which he exercised milestone decision authority for more than 200 Army programs, including the Paladin artillery system and the High Mobility Multi-Purpose Wheeled Vehicle, better known as the HUMVEE. Following high-level logistics assignments overseas and stateside, he assumed the first of three command assignments that would culminate in his selection for flag officer and his ascension to the top of the Defense Contract Management Agency. In the mid-1990s, as commander of the defense contract management office in Syracuse, he oversaw the performance of contracts associated with a number of large systems, including the Seawolf Submarine, the C- 17 aircraft, and the Javelin anti-tank missile system. A few years later, Ed returned to his home State, serving as the director of Defense Contract Management Command's eastern district headquartered in Boston. There, with a dispersed workforce of 6,000 and more than 20 field offices, he and his staff managed nearly all the defense contracts performed in the eastern United States. Since assuming leadership of the Defense Contract Management Agency, DCMA, in February 2001, Brigadier General Harrington has refashioned and expanded DoD's acquisition-management mission, and in so doing, has affirmed DCMA's standing as one of DoD's premiere combat support agencies. Today, DCMA carries out its responsibilities around the globe at sites as diverse as a circuit board manufacturer in Silicon Valley to a combat theater in the Middle East. Ed Harrington's compassion and distinct style of leadership were dramatically brought to the fore following the tragic events of September 11, 2001, in which one of his DCMA colleagues, Herb Homer of Milford, MA, perished while on official travel aboard United Airlines Flight 175 that crashed into the south tower of the World Trade Center. With compassion and grace, Ed went above and beyond his duty to comfort and console the Homer family, and assist Herb's widow, Karen, in dealing with the administrative complexities following the death of her husband. Thanks to the efforts of Ed Harrington, the memory of Herb Homer and the recognition of his sacrifice will long endure as an inspiration to thousands throughout the DoD acquisition community. Whether he was on a muddy ridge as an infantryman, at the front of a college lecture hall, on a contractor's plant floor, or at the side of a grieving family, BG Edward M. Harrington served his country with valor, loyalty, and integrity. On the occasion of his retirement from the United States Army, I offer thanks and congratulations to one of New England's finest, and wish him and his wife, Jane, well in their future pursuits.

Mr. KENNEDY

Mr. KENNEDY. Yes, I will yield to my friend from New York.

Mr. KENNEDY. Mr. President, on the question of time, we have the last 5 minutes. That will probably be leader time. The leader, obviously, ought to have whatever time he needs.

Mr. KENNEDY. I thank the Chair. Mr. President, I bring to the attention of the Members a picturesque description of what the reaction is to this proposed legislation. It is written in a very explicit article this morning in the Boston Globe. I want to share the article with the Members. The title is ``In Dorchester, Seniors Weigh Changes Against Their Needs.'' It reads: Thomas Lombardi dropped his private health insurance a few years ago when the price rose steeply. Then he switched from Coumadin, a prescription anticoagulant he took for heart disease, to half an aspirin to save about $15 a month. Living on Social Security and a bit of savings, Lombardi, 75, says he frequently has ``to cut corners to stay alive.'' But over lunch at the Kit Clark Senior Center in Dorchester, he said he doesn't support the $400 billion Medicare drug benefit that is about to become law and provide coverage to millions of seniors like him. Echoing the comments of many others at the center yesterday, he said it's far too complicated and probably won't go far enough to help him because of gaps in the coverage designed to keep down the cost of the new benefit. Besides, many said, it will be two years before the full benefits kick in. ``I don't believe it's good for me,'' said Lombardi, who owned a welding business in Dorchester. ``This is part of the Bush strategy to . . . destroy programs put in place years ago,'' Said Richard Schultz, who qualifies for Medicare at 60 because he is disabled. ``I understand that it would benefit some low-income people in the short term, but combined with huge tax cuts, this is going to drive the deficit up. Then they're going to decide they don't have the money, and, in the long run, the program will be dissolved''. . . . Barbara Burke, who operates the switchboard at the senior center, disparagingly called the new benefit ``a Band-Aid.'' It's not enough with the high cost of medicines,'' said Burke, who said she's still working at 66 because she won't be able to afford her prescriptions if she retires. The center does not pay health benefits for retirees, she said, and she has chronic lung disease that costs her more than $200 a month for inhalers alone. ``People that can't afford to buy medications should get it at a minimum charge,'' she said. . . . An Kim Hoang, 67, said she can't afford a copayment of $3 for a brand-name drug, which will be required under the new plan for those below the poverty level. Those with incomes from $8,980 to $12,123 will face copayments up to $5 per prescription. Seniors currently getting drug coverage through the MassHealth, the state-federal Medicaid program for the poor, would be shifted to the federal program. In fact, that is going to be eliminated in terms of coverage. That is part of the 6 million low-income seniors who will pay more. Hoang, speaking through a translator, said she borrows from friends to cover the $2 copayment required by Medicaid for each of the eight prescriptions she takes to treat mental illness. ``$1 is OK,'' she said, ``but $2 is too much.'' This is the real world, Mr. President. This is putting a face and name on the 6 million low-income seniors who will pay more. ``$1 is OK,'' she said, ``but $2 is too much.'' That was put in here to save some $12 billion to $15 billion put into a slush fund to provide additional benefits to the HMOs. Because of the Medicaid copayment, her friend Quy Nguyen, 71, said she limits herself to four prescriptions she needs most and tries to get by without several others. She said she envisions that choice becoming more difficult under [this program.] Josephine DeSantis said the new benefit would help her immensely, since she struggles to scrape together the $157 she spends every three months for drugs to prevent ulcers and dizziness. But at 78, she said, she's upset that the benefit won't start until 2006. ``In two years,'' she said, ``I'll probably be dead.'' There you have it, Mr. President, reaction in a working class community in Dorchester. We have the reaction in real life about what the low-income seniors pay. When we talk and bring out these charts, as we have in the past few days, this is the very instance about which we are talking. It did not have to be this way. This is just an illustration of the overall challenges of this legislation and a reason that it should not pass the Senate. How much time do I have, Mr. President?

Mr. KENNEDY. Mr. President, I yield 7 minutes to the Senator from Florida.

Mr. KENNEDY. Mr. President, I oppose the Medicare bill before the Senate, but I want to express my understanding of the refinements of the Hatch-Waxman Act found in Title XI of the Medicare bill now before the Senate. I was deeply involved in the negotiations of these provisions in the conference. The Hatch-Waxman Act, which passed in 1984, reflects efforts by the Congress to promote two policy objectives: to encourage brand-name pharmaceutical firms to make the investments necessary to research and develop new drug products, and to enable competitors to bring cheaper, generic copies of those drugs to market as quickly as possible. The Hatch-Waxman Act has worked very well for almost 20 years. It has provided the incentives necessary to bring the many medicines to market that have so transformed the shape of modern medical practice. And it has brought generic drugs to market faster than ever, saving consumers billions of dollars. As the Federal Trade Commission has shown, however, in recent years both brand-name and generic drug companies have exploited certain aspects of the Hatch-Waxman Act to delay generic competition. The changes to the Hatch-Waxman Act found in Title XI represent refinements to the present system that will stop these abuses, will restore the original balance the law intended, and will ensure Americans more timely access to affordable pharmaceuticals. Most significantly, the Hatch-Waxman provisions in this bill limit brand-name drug companies to only one 30-month stay of approval of generic drugs. This change will stop the multiple, successive 30-month stays that the Federal Trade Commission identified as having delayed approval of generic versions of several blockbuster drugs and cost consumers billions of dollars. It also restructures how the 180-day generic exclusivity provisions work. The 180-day exclusivity gives a generic company 180 days during which it is the only generic competitor to the brand drug. The exclusivity is a very valuable incentive for generic companies. The exclusivity encourages generic companies to challenge patents that are likely invalid or not infringed and, because it goes to the first generic applicant to challenge a brand-name drug patent, it encourages challenges of those patents as soon as possible. These incentives mean that consumers will be able to enjoy the lower prices provided by generic companies sooner rather than later. The Federal Trade Commission reports that the exclusivity has at times been parked through collusive agreements between brand and generic companies. Parking the exclusivity has blocked other generic companies from getting to market and has cost consumers billions of dollars. The Hatch-Waxman provisions in this bill are intended to prevent parking of the exclusivity. It does this by providing for several situations in which a generic company with the exclusivity forfeits the exclusivity, clearing the way for other generic companies to bring their products to market. The Hatch-Waxman provisions in this bill also make the exclusivity available only with respect to the patent or patents challenged on the first day generic applicants challenge brand drug patents, which makes the exclusivity a product-by-product exclusivity rather than a patent- by-patent exclusivity, and the exclusivity is available to more than one generic applicant, if they all challenge patents on the same day.

Mr. KENNEDY. That is correct.

Mr. KENNEDY. The Senator is correct.

Mr. KENNEDY. Yes, I very much appreciate your question on this point. We do intend that a court decision like the one in the D.C. Circuit's 1999 decision in Teva v. Shalala--a decision dismissing a declaratory judgment action for lack of subject matter jurisdiction because the patent owner has represented that the patent is not infringed--will count as a court decision under the new ``failure to market'' provision. Under the failure to market provision, the conditions for forfeiture are intended to be satisfied when a generic company has resolved patent disputes on all the patents that earned the first-to- file its exclusivity. After a court decision such as that at issue in Teva v. Shalala, the patent owner is estopped from suing the generic applicant in the future and the patent dispute is resolved. So these sorts of decisions should be recognized as court decisions under the failure to market provision. I'd also like to point out the importance of the declaratory judgment provisions that are in the Senate bill and are retained in modified form by the conferees in the conference report now before the Senate. Amendments made by this bill to both the Federal Food, Drug, and Cosmetic Act and Title 35 clarify that generic applicants may bring declaratory judgment acts to ensure timely resolution of patent disputes. These provisions authorize a generic applicant to bring a declaratory judgment action to obtain a judicial determination that a listed patent is invalid or is not infringed if the applicant is not sued within 45 days of having given notice to the patent owner and brand-name drug company that it is challenging the patent. This clarification of a generic applicants right to bring a declaratory judgment action is crucial to ensuring prompt resolution of patent issues, which is essential to achieve our goal of speeding generic drugs to market. It's worth pointing out that the Hatch-Waxman Act has always provided that patent owners and brand drug companies can bring patent infringement suits against a generic applicant immediately upon receiving notice that the generic applicant is challenging a patent. The declaratory judgment provisions in Title XI of this bill simply level the playing field by making it clear that the generic applicant can also seek a prompt resolution of these patent issues by bringing a declaratory judgment action if neither the patent owner nor the brand drug company brings such a suit within 45 days after receiving notice of the patent challenge.

Mr. KENNEDY. Yes, I will yield.

Mr. KENNEDY. Certainly. The provision in Title 35 is intended to clarify that Federal district courts are to entertain such suits for declaratory judgments so long as there is a ``case or controversy'' under Article III of the Constitution. We fully expect that, in almost all situations where a generic applicant has challenged a patent and not been sued for patent infringement, a claim by the generic applicant seeking declaratory judgment on the patent will give rise to a justiciable ``case or controversy'' under the Constitution. We believe that the only circumstance in which a case or controversy might not exist would arise in the rare circumstance in which the patent owner and brand drug company have given the generic applicant a covenant not to sue, or otherwise formally acknowledge that the generic applicant's drug does not infringe. The mere fact that neither the patent owner nor the brand drug company has brought a patent infringement suit within 45 days against a generic applicant does not mean there is no ``case or controversy.'' The sole purpose of requiring the passage of 45 days is to provide the patent owner and brand-name drug company the first opportunity to begin patent litigation. Inaction within the 45-day period proves nothing, as there are tactical reasons why a patent owner or brand drug company might refrain from bringing suit on a patent within 45 days. For example, the brand drug company might have several patents listed in the Food and Drug Administration's Orange Book with respect to a particular drug. It could be in the company's interest to bring suit within 45 days on one patent and to hold the others in reserve. The suit on one patent would automatically stay approval of the generic application until the lawsuit is resolved or the 30 months elapses. Holding the other patents in reserve would introduce uncertainty that could discourage generic companies from devoting resources to bring the generic drug to market and that would give the brand drug company a second opportunity to delay generic competition by suing the generic company for infringement of the reserved patents after the resolution of the initial infringement suit. Or for patents on which no 30-month stay is available, the brand drug company could sit back to create uncertainty and similarly delay generic entry by delaying resolution of those patents. Or when generic applicants are blocked by a first generic applicant's 180-day exclusivity, the brand drug company could choose not to sue those other generic applicants so as to delay a final court decision that could trigger the ``failure to market'' provision and force the first generic to market. In each of these and in other circumstances, generic applicants must be able to seek a resolution of disputes involving all patents listed in the Orange Book with respect to the drug immediately upon the expiration of the 45-day period. We believe there can be a case or controversy sufficient for courts to hear these cases merely because the patents at issue have been listed in the FDA Orange Book, and because the statutory scheme of the Hatch-Waxman Act relies on early resolution of patent disputes. The declaratory judgment provisions in this bill are intended to encourage such early resolution of patent disputes.

Mr. KENNEDY. Yes, I will yield.

Mr. KENNEDY. I agree with the distinguished Senator from Arizona. It is clearly our intent that, under these provisions, courts considering jurisdictional challenges to declaratory judgment actions brought by generic drug companies should apply the standards set forth in this bill to such challenges in any case pending (either in the trial court or on appeal) at the time of enactment in order to resolve patent issues as soon as possible and to clear the way for quicker generic entry.

Mr. KENNEDY. Mr. President, I ask unanimous consent to use the 5 minutes reserved for the leader. That has been cleared on both sides.

Mr. KENNEDY. I yield 7 minutes to the Senator from Connecticut. How much time remains on each side?

Mr. KENNEDY. So we have 12 minutes. I yield 7 minutes to the Senator from Connecticut.

Mr. KENNEDY. Mr. President, how much time do we have remaining?

Mr. KENNEDY. I yield 1 minute to the Senator from Illinois.

Mr. KENNEDY. Mr. President, how much time remains?

Mr. KENNEDY. I withhold our time.

Mr. KENNEDY. How much time is on the other side?

Mr. KENNEDY. Mr. President, I yield myself 5 minutes. Mr. President, my friend from Iowa talked about what is happening to the retiree programs. This is the most recent study. Firms offering retiree health benefits dropped 40 percent in the last 8 years. With this legislation, it will go right down through the cellar, make no mistake. We brought that out in this debate. My friend from Connecticut has talked about what will happen in his State, about the retirees. It happens in Connecticut, it happens in Massachusetts, it is happening in every State of this country, the losing of retirees. The low-income elderly and disabled will pay more. Thousands are going to fail the assets test. That is what is happening in the bill. In my early years of service in the Senate I was privileged to participate in the final stages of the long debate that culminated in the enactment of Medicare. Today, Medicare is so much a part of the essential fabric of our society that it is hard to remember the harsh reality the elderly faced before its enactment. Too often, their lives were blighted by the fear of a costly illness that would swallow the savings of a lifetime and leave them impoverished. Too often, their lack of access to affordable medical care made a mockery of the dignified and secure retirement that should be the birthright of every American. Private health insurance had failed the elderly, and Medicare was the response. Today, Medicare and Social Security are the most beloved and successful government programs ever enacted. They form the cornerstone of our nation's retirement system. But they are also under assault from a heartless right-wing ideology that ignores the lessons of the past. This ideology views health care as just another commodity. It sees Medicare as another potential profit center for HMOs and insurance companies, not as solemn commitment between government and its citizens. It says senior citizens should be subject to the sink or swim economics of the marketplace--and if they sink, it is their failure, not our society's. The legislation we are debating today started as an important down payment on the comprehensive prescription drug coverage the elderly have long needed to complement the coverage of hospital and physician care that Medicare provides. That was the essence of the bipartisan bill that passed the Senate by an overwhelming majority. But that bipartisan bill is not the one we are debating today. Instead, the legislation before the Senate is a partisan document that embodies this administration's right-wing ideology and its desire to fuel the profits of the wealthy and powerful who support it. It cynically uses the elderly's need for prescription drugs as a Trojan horse to reshape Medicare. The Republican majority has hijacked this conference. Their program draws its essential inspiration from the President's original program to limit prescription drug benefits to senior citizens who join an HMO. That plan was too crude and obvious to withstand public scrutiny, so the House of Representatives--and now this conference committee--has crafted a more subtle but no less destructive approach. That is why this legislation had to be rammed through the House of Representatives in the dead of night, with the support of only one party, and only after the rules of the House were bent and broken. That is why this legislation is being rammed through the Senate after only 3 days of debate, and only after the Senate waived its own rules in a very close and narrow vote. This bill is a cold, calculated program to unravel Medicare, to privatize it, to voucherize it and to force senior citizens into the unloving arms of HMOs. It is the first step in the Administration's campaign to reshape America to fit its right-wing ideology. And the White House has already announced that if they are successful in enacting this first step, the privatization of Social Security will be the next step. Today, big HMOs, insurance companies, and pharmaceutical companies are the winners. Tomorrow, when Social Security is privatized, it will be the big banks and brokerage houses. And, in both cases, senior citizens and their families will be the losers. The bill uses a triple threat to unravel Medicare. It creates a new program called premium support. They call it a demonstration, but it is really a vast social experiment using millions of senior citizens as guinea pigs. It is designed to raise Medicare premiums, so that seniors will be forced to join HMOs to get affordable care. They call it competition, but it's not competition, it's coercion. It raises Medicare payments to HMOs so that Medicare can't compete--a 25 percent overpayment. They use the elderly's own Medicare money to undermine the Medicare program they depend on. It creates a $12 billion slush fund for private insurance plans to make Medicare even more competitive. The assault on Medicare is the worst aspect of this bill, but that's not the end of the dishonor roll of this bill. Three million retirees with good coverage through a former employer will lose it as the result of this legislation. Six million of the poorest of the poor elderly and disabled people will face higher costs for the drugs they need and less access to medical care the day this legislation is effective. The government will be prohibited from bargaining to obtain reasonable drug prices for senior citizens. The bill imposes a cruel and demeaning assets test that disqualifies millions of the lowest income elderly from the special help they need. The bill provides $6 billion in tax subsidies for health savings accounts, a program that has nothing to do with Medicare but everything to do with benefiting the healthy and wealthy while driving up insurance premiums for other Americans. Rejecting this misbegotten legislation is not a rejection of our senior citizens' needs for prescription drugs. It is an affirmation of their need for Medicare and of their right to choose the doctors and hospitals they trust. If this legislation is rejected today, the pending business before the Senate will be the good, bipartisan prescription drug program we passed in July. Let us make the vote today, a new start to do the right thing rather than a conclusion to do the wrong thing. In its own way, this is as historic as the debate that enacted Medicare. Medicare is the heart and soul of our society's commitment to compassion and fairness. Today, the Senate will decide whether that commitment will be abandoned for other values--the values that are measured in the cold coins of profit and power rather than on the scales of humanity and justice. The Senate should reject this mistaken choice. It should stand with the elderly and their families, not with HMOs and insurance companies and pharmaceutical industries. It should reject this legislation.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is gratifying that Congress is finally acting to renew one of the Nation's essential protections against terrorism. The Undetectable Firearms Act--also known as the ``plastic gun'' law--makes it illegal to manufacture, import, possess, or transfer a firearm that is not detectable by walk-through metal detectors or airport x-ray machines. Only firearms necessary for certain military and intelligence uses are exempt. This law was first enacted in 1988, long before the attacks on 9/11, and it is more important than ever now. It has been extended once since it was first enacted, but it is scheduled to expire on December 10th. Its expiration would result in Americans in all parts of the Nation becoming needlessly vulnerable to gun violence in airlines, airports, schools, office buildings, and many other places, and even to terrorist attacks. The technology of gun manufacturers has significantly improved since the 1980's--and the determination of terrorists to attack Americans has soared. We know that terrorists are exploiting the weaknesses and loopholes in our gun laws. In 2000, a member of the Middle East terrorist group Hezbollah was convicted in Detroit on gun charges and conspiracy to ship guns and ammunition to Lebanon. He had purchased many of those weapons at gun shows in Michigan. In the war in Afghanistan, American soldiers discovered a terrorist training manual entitled ``How Can I Train Myself for Jihad'' in a house in that country. One part of the manual stated: ``In other countries, e.g. some states of USA . . . it is perfectly legal for members of the public to own certain types of firearms. If you live in such a country, obtain an assault rifle legally . . . learn how to use it properly and go and practice in the areas allowed for such training.'' Last month, I introduced a bill, S. 1774, to renew the Undetectable Firearms Act and repeal the sunset provision. The bill now before us, H.R. 3348, extends the sunset provision for another 10 years. The danger to security from undetectable firearms won't sunset, and the law that bans them shouldn't sunset either. Nevertheless, I am encouraged that Congress is taking action, and I look forward to the renewal of this gun ban being signed into law. This measure is only one of several steps that Congress should take to protect our citizens from gun violence. We also need to strengthen criminal background checks for gun purchases under the Brady Law, renew the assault weapons ban, and close the ``gun show loophole'' once and for all. Each of these gun-safety measures is needed to protect our people in communities across the country. I urge my colleagues to support the pending bill, and to act on these other vital measures as well.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I wish to engage in a colloquy with the distinguished majority leader, the Senator from Tennessee, Mr. Frist. I appreciate his efforts on the bill before us today, and agree that this is a vitally important area. I believe this bill represents a good first step, but I would point out that minorities comprise over 40 percent of the organ transplant waiting list, even though they represent approximately 25 percent of the population. Half of the patients who needlessly die while awaiting a transplant are minorities. African Americans are more likely to have end stage renal disease because they have the highest rate of hypertension in the world. Almost 40 percent of Americans on the waiting list for kidneys are African American, but they receive only 20 percent of available kidneys. Evidence suggests that African Americans may face discrimination during the transplantation process. White patients are 5 times more likely than African Americans to receive transplants, even when they are equally qualified. We must increase our commitment to ending health disparities. I believe that more must be done to improve the rates of organ donation among minority communities and focus specifically among these populations to determine what the barriers to organ donation and transplantation currently are, as well as devise mechanisms to reduce or eliminate such barriers. I am disappointed that the legislation did not include provisions to directly address the disparity in organ donation and transplantation and the special needs of minority populations. I had hoped to include these provisions. Nonetheless, the need to enhance organ donation is too compelling to ignore, and for that reason, I am supporting the current legislation. It is our expectation that recipients of grant awards and contracts authorized under this Act will include consideration of minority concerns in all activities. I hope to work with the majority leader next year to address this critical issue.