Herb Kohl

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce the Nursing Home Transparency and Improvement Act of 2009. My colleague, Senator Grassley, and I have worked on this legislation together. He is on the floor now and will speak of the bill when I finish my comments. As chairman of the Special Committee on Aging, the quality of care that is provided to nursing home residents is of great concern to me, and I am proud to introduce this bill with Senator Grassley today. I have worked with Senator Grassley on nursing home policy for several years. We have commissioned GAO reports, sought input from both industry and reform advocates, and collaborated with the executive branch on various initiatives. This work has generated some positive results, such as the government's new five-star nursing home rating system. But we must do more. We believe the bill we introduce today will raise the bar for nursing home quality and oversight nationwide, by strengthening the Federal Government's ability to monitor and advance the level of care provided in nursing domes. for up to five minutes. First, our bill would give the Government better tools for enforcing high quality standards. For instance, nursing homes would be required to disclose information about all the principal business partners who play a role in the financing and management of the facility, so that the Government can hold them accountable in the case of poor care or neglect. It would also create a national independent monitor pilot program to tackle tough quality and safety issues that must be addressed at the level of corporate management. Second, our bill would give consumers more information about individual nursing homes and their track record of care. Our bill would grant consumers access to a facility's most recent health and safety report online, and would develop a simple, standardized online complaint form for residents and their families to ensure that their concerns are addressed swiftly. And it would require the Government to collect staffing information from nursing homes on a real-time basis, and make this information available to the public. Finally, our bill would encourage homes to improve on their own. Under this legislation, facilities would develop compliance and ethics programs to decrease the risk of financial fraud, and quality assurance standards to internally monitor the quality of care provided to residents. We also authorize funds for a national demonstration project on ``culture change,'' a new management style in nursing home care that rethinks relationships between management and frontline workers by empowering nursing aides to take charge of the personalized care of residents. Finally, our bill makes an investment in nursing home staff by offering training on how to handle residents with dementia. Twenty-two years have passed since Congress last addressed the safety and quality of America's nursing homes in a comprehensive way. As we prepare to debate reforms across our health care system, there has never been a better time to implement these critical improvements to our nation's system of nursing homes. We ask our colleagues for their support. Madam President, I turn now to Senator Grassley, with whom I worked diligently with a great effort and with tremendous results. He is a man I have enjoyed working with across the aisle now for many years. He is a high-quality guy. It is in that respect and with that regard that I turn to him now.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce the Nursing Home Transparency and Improvement Act of 2009. My colleague, Senator Grassley, and I have worked on this legislation together. He is on the floor now and will speak of the bill when I finish my comments. As chairman of the Special Committee on Aging, the quality of care that is provided to nursing home residents is of great concern to me, and I am proud to introduce this bill with Senator Grassley today. I have worked with Senator Grassley on nursing home policy for several years. We have commissioned GAO reports, sought input from both industry and reform advocates, and collaborated with the executive branch on various initiatives. This work has generated some positive results, such as the government's new five-star nursing home rating system. But we must do more. We believe the bill we introduce today will raise the bar for nursing home quality and oversight nationwide, by strengthening the Federal Government's ability to monitor and advance the level of care provided in nursing domes. for up to five minutes. First, our bill would give the Government better tools for enforcing high quality standards. For instance, nursing homes would be required to disclose information about all the principal business partners who play a role in the financing and management of the facility, so that the Government can hold them accountable in the case of poor care or neglect. It would also create a national independent monitor pilot program to tackle tough quality and safety issues that must be addressed at the level of corporate management. Second, our bill would give consumers more information about individual nursing homes and their track record of care. Our bill would grant consumers access to a facility's most recent health and safety report online, and would develop a simple, standardized online complaint form for residents and their families to ensure that their concerns are addressed swiftly. And it would require the Government to collect staffing information from nursing homes on a real-time basis, and make this information available to the public. Finally, our bill would encourage homes to improve on their own. Under this legislation, facilities would develop compliance and ethics programs to decrease the risk of financial fraud, and quality assurance standards to internally monitor the quality of care provided to residents. We also authorize funds for a national demonstration project on ``culture change,'' a new management style in nursing home care that rethinks relationships between management and frontline workers by empowering nursing aides to take charge of the personalized care of residents. Finally, our bill makes an investment in nursing home staff by offering training on how to handle residents with dementia. Twenty-two years have passed since Congress last addressed the safety and quality of America's nursing homes in a comprehensive way. As we prepare to debate reforms across our health care system, there has never been a better time to implement these critical improvements to our nation's system of nursing homes. We ask our colleagues for their support. Madam President, I turn now to Senator Grassley, with whom I worked diligently with a great effort and with tremendous results. He is a man I have enjoyed working with across the aisle now for many years. He is a high-quality guy. It is in that respect and with that regard that I turn to him now.

Mr. KOHL

Mr. KOHL. Mr. President, today I am doing my part to end the growing crisis of high school dropouts. I am introducing the Fast Track to College Act, a bill to increase high school graduation rates and improve access to college through the expansion of dual enrollment programs and Early College High Schools. Such programs allow young people to earn up to two years of college credit, including an Associate's degree, while also earning their high school diploma. As our country struggles with an economic recession, I believe we must continue to invest in our public schools. While we must carefully consider how taxpayer dollars are spent during these trying times, education is one of the wisest investments we can make, and it is an investment that must be made now, before our children fall farther behind. Education provides an outstanding return on investment for taxpayers, and it builds the foundation for future economic growth. Young people who drop out of high school are at increased risk for unemployment and incarceration, and they are more likely to depend on public assistance for healthcare, housing, and other basic needs. Conversely, adults with a bachelor's degree will earn two-thirds more than a high school graduate over the course of their working lives, and they are much less likely to experience unemployment or rely on social programs. Our Nation's future depends on how we respond to the growing crisis in our schools, especially the rising number of high school dropouts. This generation of Americans is the first in history to be less likely to graduate from high school than their parents, and the U.S. is the only industrialized Nation where that is the case. This is not a sustainable trend if we hope to remain powerful and prosperous. Recent reports have illustrated the enormous challenge: the national graduation rate is only 70 percent, and is significantly lower in many large urban school districts. For example, my home state of Wisconsin has a relatively high graduation rate of 86 percent, but that rate drops to only 46 percent in the urban schools in Milwaukee. Such an achievement gap cannot continue. As we work to reauthorize the No Child Left Behind Act, we must find solutions to the growing dropout crisis and provide opportunities for young people to pursue higher education. More funding is not the only answer for the problems in our schools--we must also reform our whole approach to education. We must ensure that young people are being equipped with the skills they need to compete in a 21st century economy. In particular, we can no longer view a high school diploma as a satisfactory goal for students. In today's world, students need at least two years of college or technical education in order to secure a well-paying job and provide for themselves and their families. That is why I ask my colleagues to support this bill, which provides competitive grant funding for Early College High Schools and other dual enrollment programs that allow low-income students to earn college credit and a high school diploma at the same time. These programs put students on the fast track to college and increase the odds that they will not only graduate, but go on to continue their education and secure higher-paying jobs. The Gates Foundation has been funding evaluations of such programs for several years now, and they have shown incredible promise as a tool for increasing attendance, graduation, and college enrollment rates, particularly among low-income high school students. Students are motivated by a challenging curriculum and the tangible rewards of achievement, including free college credit and exposure to career opportunities. This free college credit is critically important, especially in this economy, as family savings dwindle and tuition costs continue to rise. Dual enrollment programs can provide just enough costs savings to make college affordable, especially for low and middle-income families who might think it is out of their reach. Specifically, this bill authorizes $140,000,000 for competitive 6- year grants to schools, with priority given to schools that serve low- income students. The funding will help defray the costs of implementing new programs, strengthening existing programs, and providing students and teachers with the resources they need to succeed in early college high schools and other dual enrollment programs. The bill also includes $10 million for states to provide support for these programs, as well as an evaluation component so we can measure the program's effectiveness. I am proud to sponsor this legislation because I believe this investment in our schools will help solve the dropout crisis and secure America's future by ensuring that all young people can compete in today's global economy. Further, I believe that all children, regardless of income or other factors, deserve equal opportunities to fulfill their potential, and it is both morally and fiscally responsible for this Congress to invest in high-quality educational programs that help them reach that potential. While our country faces unprecedented challenges at this moment in history, I believe we also face incredible opportunities to shape our future. I look forward to working with my colleagues in the Congress to reinvest in a world-class education system that will move our country forward into the 21st century. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL. Mr. President, I rise today to introduce the Patient Safety and Abuse Prevention Act along with my colleague, Senator Collins. This bill is the culmination of years of work and careful study, and would go a long way to ensuring the safety of vulnerable older Americans. We have hard evidence that this policy will work and will protect lives. It is vital that we consider getting this legislation moving soon, and I look forward to working with the Finance Committee, the elder justice community, and Congressman Joe Sestak in the House to make that happen. Thousands of individuals with a history of substantiated abuse or a criminal record are hired every year to work closely with exposed and defenseless seniors within our nation's nursing homes and other long- term care facilities. Because the current system of state-based background checks is haphazard, inconsistent, and full of gaping holes, predators can evade detection throughout the hiring process, securing jobs that allow them to assault, abuse, and steal from defenseless elders. We can and must take action to stop this type of abuse by building on the resounding success of a seven-state background check pilot program, enacted as part of the 2003 Medicare Modernization Act, which enabled seven states to make major improvements in their existing screening procedures of individuals applying for jobs in long-term care settings. The results of this 3-year pilot program were a resounding success: more than 7,200 individuals with a history of abuse or violence were kept out of the workforce in Alaska, Idaho, Illinois, Michigan, Nevada, New Mexico, and Wisconsin. The states who participated in the pilot have all chosen to continue their programs, and are taking additional steps to build on the success of the technological infrastructure they created. The Patient Safety and Abuse Prevention Act will expand these outstanding results nationwide by making it possible for all states to make these commonsense improvements. The cost of enabling states to efficiently connect registries and databases, expand the range of workers who are screened, and add a national criminal history check is very modest. If states take these steps, we can reduce the terrible toll of elder abuse. If we do not, experts tell us abuse rates will continue to rise. Our straightforward approach is strongly endorsed by State Attorneys General across the country, the Elder Justice Coalition, which speaks for over 500 member organizations, AARP, the American Health Care Association, NCCNHR, the American Association of Homes and Services for the Aging, and advocates in hundreds of communities who work every day to protect the well-being of elders and individuals with disabilities. Last Congress, the Patient Safety and Abuse Prevention Act was passed unanimously out of the Finance Committee. We are so close to getting this policy passed. I ask my colleagues to join Senators Collins, Kerry, Whitehouse, Bingaman, Levin, Casey, Lincoln, Klobuchar, Stabenow, Bayh, and Cochran in supporting our efforts to reduce and prevent abuse of our elders and loved ones. Mr. President, I ask unanimous consent that support material be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, today I am doing my part to end the growing crisis of high school dropouts. I am introducing the Fast Track to College Act, a bill to increase high school graduation rates and improve access to college through the expansion of dual enrollment programs and Early College High Schools. Such programs allow young people to earn up to two years of college credit, including an Associate's degree, while also earning their high school diploma. As our country struggles with an economic recession, I believe we must continue to invest in our public schools. While we must carefully consider how taxpayer dollars are spent during these trying times, education is one of the wisest investments we can make, and it is an investment that must be made now, before our children fall farther behind. Education provides an outstanding return on investment for taxpayers, and it builds the foundation for future economic growth. Young people who drop out of high school are at increased risk for unemployment and incarceration, and they are more likely to depend on public assistance for healthcare, housing, and other basic needs. Conversely, adults with a bachelor's degree will earn two-thirds more than a high school graduate over the course of their working lives, and they are much less likely to experience unemployment or rely on social programs. Our Nation's future depends on how we respond to the growing crisis in our schools, especially the rising number of high school dropouts. This generation of Americans is the first in history to be less likely to graduate from high school than their parents, and the U.S. is the only industrialized Nation where that is the case. This is not a sustainable trend if we hope to remain powerful and prosperous. Recent reports have illustrated the enormous challenge: the national graduation rate is only 70 percent, and is significantly lower in many large urban school districts. For example, my home state of Wisconsin has a relatively high graduation rate of 86 percent, but that rate drops to only 46 percent in the urban schools in Milwaukee. Such an achievement gap cannot continue. As we work to reauthorize the No Child Left Behind Act, we must find solutions to the growing dropout crisis and provide opportunities for young people to pursue higher education. More funding is not the only answer for the problems in our schools--we must also reform our whole approach to education. We must ensure that young people are being equipped with the skills they need to compete in a 21st century economy. In particular, we can no longer view a high school diploma as a satisfactory goal for students. In today's world, students need at least two years of college or technical education in order to secure a well-paying job and provide for themselves and their families. That is why I ask my colleagues to support this bill, which provides competitive grant funding for Early College High Schools and other dual enrollment programs that allow low-income students to earn college credit and a high school diploma at the same time. These programs put students on the fast track to college and increase the odds that they will not only graduate, but go on to continue their education and secure higher-paying jobs. The Gates Foundation has been funding evaluations of such programs for several years now, and they have shown incredible promise as a tool for increasing attendance, graduation, and college enrollment rates, particularly among low-income high school students. Students are motivated by a challenging curriculum and the tangible rewards of achievement, including free college credit and exposure to career opportunities. This free college credit is critically important, especially in this economy, as family savings dwindle and tuition costs continue to rise. Dual enrollment programs can provide just enough costs savings to make college affordable, especially for low and middle-income families who might think it is out of their reach. Specifically, this bill authorizes $140,000,000 for competitive 6- year grants to schools, with priority given to schools that serve low- income students. The funding will help defray the costs of implementing new programs, strengthening existing programs, and providing students and teachers with the resources they need to succeed in early college high schools and other dual enrollment programs. The bill also includes $10 million for states to provide support for these programs, as well as an evaluation component so we can measure the program's effectiveness. I am proud to sponsor this legislation because I believe this investment in our schools will help solve the dropout crisis and secure America's future by ensuring that all young people can compete in today's global economy. Further, I believe that all children, regardless of income or other factors, deserve equal opportunities to fulfill their potential, and it is both morally and fiscally responsible for this Congress to invest in high-quality educational programs that help them reach that potential. While our country faces unprecedented challenges at this moment in history, I believe we also face incredible opportunities to shape our future. I look forward to working with my colleagues in the Congress to reinvest in a world-class education system that will move our country forward into the 21st century. I urge my colleagues to support this important legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. My colleague and former subcommittee ranking member, Senator Bennett, is correct. This resulted from a clerical error involving confusion between two different projects on beef research. Senator Bond should not be listed as a sponsor of the Beef Improvement Research project.

Mr. KOHL

Mr. KOHL. Mr. President, I wish today to engage in a colloquy with my colleague, the Senator from Washington and the chairman of the Transportation Appropriations Subcommittee. As the chairman is aware, language was included in the explanatory statement accompanying the bill before us to help address an issue that has plagued the Milwaukee area for several years. Due to a longstanding dispute between city and county officials, unobligated transportation dollars have lost value with each passing year. In an effort to spend down those funds on much needed transit projects, the report resolves this dispute by dividing the funding. I have spoken with Congressman Obey, the chairman of the House Appropriations Committee, to confirm the intent of the language included in the explanatory statement. I would ask the Senator from Washington, is it your understanding that it is the expectation of both the House and Senate committees that 60 percent of the funding in question should be made available to the city of Milwaukee for a downtown fixed-rail corridor while 40 percent of the funding should be made available to the county of Milwaukee for energy efficient buses?

Mr. KOHL. I thank the chairman of the Transportation Appropriations Subcommittee for her help and for engaging in this colloquy.

Mr. KOHL

Mr. KOHL. Mr. President, today I honor the 100 year legacy of Fort McCoy and the men and women who have worked and trained at the fort. On June 8th, 1909, the United States Army began training on a tract of land that would eventually become Fort McCoy. Named for Major General Robert McCoy, the fort has embodied his commitment to military service for 100 years. Providing training to more than 100,000 reserve and active duty soldiers per year, Fort McCoy is the only facility focused on supporting total force training. As a pioneer for field artillery and maneuver training, the fort has developed into one of the largest and most modern artillery camps in the nation. Fort McCoy has supported and trained our troops through every major military action of the twentieth and twenty-first centuries and has truly remained an unwavering presence for the United States Armed Services. I am proud to recognize the 100 year anniversary of Fort McCoy and the enduring commitment that its troops have given to the United States of America.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce the Sunshine in Litigation Act of 2009, a bill that will curb the ongoing abuse of secrecy orders in Federal courts. The result of this abuse, which often comes in the form of sealed settlement agreements, is to keep important health and safety information hidden from the public. This problem has been recurring for decades, and most often arises in product liability cases. Typically, an individual brings a cause of action against a manufacturer for an injury or death that has resulted from a defect in one of its products. The injured party often faces a large corporation that can spend a virtually unlimited amount of money defending the lawsuit, prolonging the time it takes to reach resolution. Facing a formidable opponent and mounting medical bills, a plaintiff often has no choice but to settle the litigation. In exchange for the award he or she was seeking, the victim is forced to agree to a provision that prohibits him or her from revealing information disclosed during the litigation. Plaintiffs get a respectable award, and the defendant is able to keep damaging information from getting out. Because they remain unaware of critical public health and safety information that could potentially save lives, the American public incurs the greatest cost. This concern about excessive secrecy is warranted by the fact that tobacco companies, automobile manufacturers, and pharmaceutical companies have settled with victims and used the legal system to hide information which, if it became public, could protect the American people from future harms. Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public, to protect a company's reputation or profit margin. One of the most famous cases of abuse of secrecy orders involved Bridgestone/Firestone tires. From 1992-2000, tread separations of various Bridgestone and Firestone tires caused accidents across the country, many resulting in serious injuries and even fatalities. Instead of owning up to their mistakes and acting responsibly, Bridgestone/Firestone quietly settled dozens of lawsuits, most of which included secrecy agreements. It was not until 1999, when a Houston public television station broke the story, that the company acknowledged its wrongdoing and recalled 6.5 million tires. By then, it was too late. More than 250 people had died and more than 800 were injured as a result of the defective tires. If the story ended there, and the Bridgestone/Firestone cases were just an aberration, one might argue that there is no urgent need for legislation. But, unfortunately, the list of abuses goes on. There is the case of General Motors. Although an internal memo demonstrated that GM was aware of the risk of fire deaths from crashes of pickup trucks with ``side saddle'' fuel tanks, an estimated 750 people were killed in fires involving trucks with these fuel tanks. When victims sued, GM disclosed documents only under protective orders, and settled these cases on the condition that the information in these documents remained secret. This type of fuel tank was installed for 15 years before being discontinued. Evidence suggests that the dangers posed by protective orders and secret settlements continue. On December 11, 2007, at a hearing before the Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy and Consumer Rights, Johnny Bradley Jr. described his tragic personal story that demonstrates the implications of court endorsed secrecy. In 2002, Mr. Bradley's wife was killed in a rollover accident allegedly caused by tread separation in his Cooper tires. While litigating the case, his attorney uncovered documented evidence of Cooper tire design defects. Through aggressive litigation of protective orders and confidential settlements in cases prior to the Bradleys' accident, Cooper had managed to keep the design defect documents confidential. Prior to the end of Mr. Bradley's trial, Cooper Tires settled with him on the condition that almost all litigation documents would be kept confidential under a broad protective order. With no access to documented evidence of design defects, consumers will continue to remain in the dark about this life- threatening defect. In 2005, the drug company Eli Lilly settled 8,000 cases related to harmful side effects of its drug Zyprexa. All of those settlements required plaintiffs to agree ``not to communicate, publish or cause to be published . . . any statement . . . concerning the specific events, facts or circumstances giving rise to [their] claims.'' In those cases, the plaintiffs uncovered documents which showed that, through its own research, Lilly knew about the harmful side effects as early as 1999. While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and generated $4.2 billion in sales in 2005. More than a year later, information about the case was leaked to the New York Times and another 18,000 cases settled. Had the first settlement not included a secrecy agreement, consumers would have been able to make informed choices and avoid the harmful side effects, including enormous weight gain, dangerously elevated blood sugar levels, and diabetes. This very issue is currently before a Federal judge in Orlando, FL. There, the court is faced with deciding whether AstraZeneca can keep under seal clinical studies about the harmful side effects of an antipsychotic drug, Seroquel. Plaintiffs' lawyers and Bloomberg News sued to force AstraZeneca to make public documents discovered in dismissed lawsuits. Late last month, the court unsealed some of the documents at question, and is still deciding whether to unseal the remainder of the documents. This is exactly the sort of case where we need judges to consider public health and safety when deciding whether to allow a secrecy order. There are no records kept of the number of confidentiality orders accepted by State or Federal courts. However, anecdotal evidence suggests that court secrecy and confidential settlements are prevalent. Beyond General Motors, Bridgestone/Firestone, Cooper Tire, Zyprexa and Seroquel, secrecy agreements have also had real life consequences by allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other dangerous products and drugs to remain in the market. And those are only the ones we know about. While some states have already begun to move in the right direction, we still have a long way to go. It is time to initiate a Federal solution for this problem. The Sunshine in Litigation Act is a modest proposal that would require federal judges to perform a simple balancing test to ensure that in any proposed secrecy order, the defendant's interest in secrecy truly outweighs the public interest in information related to public health and safety. Specifically, prior to making any portion of a case confidential or sealed, a judge would have to determine--by making a particularized finding of fact--that doing so would not restrict the disclosure of information relevant to public health and safety. Moreover, all courts, both Federal and State, would be prohibited from issuing protective orders that prevent disclosure to relevant regulatory agencies. This legislation does not prohibit secrecy agreements across the board. It does not place an undue burden on judges or our courts. It simply states that where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public. The time to focus some sunshine on public hazards to prevent future harm is now. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce the Sunshine in Litigation Act of 2009, a bill that will curb the ongoing abuse of secrecy orders in Federal courts. The result of this abuse, which often comes in the form of sealed settlement agreements, is to keep important health and safety information hidden from the public. This problem has been recurring for decades, and most often arises in product liability cases. Typically, an individual brings a cause of action against a manufacturer for an injury or death that has resulted from a defect in one of its products. The injured party often faces a large corporation that can spend a virtually unlimited amount of money defending the lawsuit, prolonging the time it takes to reach resolution. Facing a formidable opponent and mounting medical bills, a plaintiff often has no choice but to settle the litigation. In exchange for the award he or she was seeking, the victim is forced to agree to a provision that prohibits him or her from revealing information disclosed during the litigation. Plaintiffs get a respectable award, and the defendant is able to keep damaging information from getting out. Because they remain unaware of critical public health and safety information that could potentially save lives, the American public incurs the greatest cost. This concern about excessive secrecy is warranted by the fact that tobacco companies, automobile manufacturers, and pharmaceutical companies have settled with victims and used the legal system to hide information which, if it became public, could protect the American people from future harms. Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public, to protect a company's reputation or profit margin. One of the most famous cases of abuse of secrecy orders involved Bridgestone/Firestone tires. From 1992-2000, tread separations of various Bridgestone and Firestone tires caused accidents across the country, many resulting in serious injuries and even fatalities. Instead of owning up to their mistakes and acting responsibly, Bridgestone/Firestone quietly settled dozens of lawsuits, most of which included secrecy agreements. It was not until 1999, when a Houston public television station broke the story, that the company acknowledged its wrongdoing and recalled 6.5 million tires. By then, it was too late. More than 250 people had died and more than 800 were injured as a result of the defective tires. If the story ended there, and the Bridgestone/Firestone cases were just an aberration, one might argue that there is no urgent need for legislation. But, unfortunately, the list of abuses goes on. There is the case of General Motors. Although an internal memo demonstrated that GM was aware of the risk of fire deaths from crashes of pickup trucks with ``side saddle'' fuel tanks, an estimated 750 people were killed in fires involving trucks with these fuel tanks. When victims sued, GM disclosed documents only under protective orders, and settled these cases on the condition that the information in these documents remained secret. This type of fuel tank was installed for 15 years before being discontinued. Evidence suggests that the dangers posed by protective orders and secret settlements continue. On December 11, 2007, at a hearing before the Senate Judiciary Committee Subcommittee on Antitrust, Competition Policy and Consumer Rights, Johnny Bradley Jr. described his tragic personal story that demonstrates the implications of court endorsed secrecy. In 2002, Mr. Bradley's wife was killed in a rollover accident allegedly caused by tread separation in his Cooper tires. While litigating the case, his attorney uncovered documented evidence of Cooper tire design defects. Through aggressive litigation of protective orders and confidential settlements in cases prior to the Bradleys' accident, Cooper had managed to keep the design defect documents confidential. Prior to the end of Mr. Bradley's trial, Cooper Tires settled with him on the condition that almost all litigation documents would be kept confidential under a broad protective order. With no access to documented evidence of design defects, consumers will continue to remain in the dark about this life- threatening defect. In 2005, the drug company Eli Lilly settled 8,000 cases related to harmful side effects of its drug Zyprexa. All of those settlements required plaintiffs to agree ``not to communicate, publish or cause to be published . . . any statement . . . concerning the specific events, facts or circumstances giving rise to [their] claims.'' In those cases, the plaintiffs uncovered documents which showed that, through its own research, Lilly knew about the harmful side effects as early as 1999. While the plaintiffs kept quiet, Lilly continued to sell Zyprexa and generated $4.2 billion in sales in 2005. More than a year later, information about the case was leaked to the New York Times and another 18,000 cases settled. Had the first settlement not included a secrecy agreement, consumers would have been able to make informed choices and avoid the harmful side effects, including enormous weight gain, dangerously elevated blood sugar levels, and diabetes. This very issue is currently before a Federal judge in Orlando, FL. There, the court is faced with deciding whether AstraZeneca can keep under seal clinical studies about the harmful side effects of an antipsychotic drug, Seroquel. Plaintiffs' lawyers and Bloomberg News sued to force AstraZeneca to make public documents discovered in dismissed lawsuits. Late last month, the court unsealed some of the documents at question, and is still deciding whether to unseal the remainder of the documents. This is exactly the sort of case where we need judges to consider public health and safety when deciding whether to allow a secrecy order. There are no records kept of the number of confidentiality orders accepted by State or Federal courts. However, anecdotal evidence suggests that court secrecy and confidential settlements are prevalent. Beyond General Motors, Bridgestone/Firestone, Cooper Tire, Zyprexa and Seroquel, secrecy agreements have also had real life consequences by allowing Dalkon Shield, Bjork-Shiley heart valves, and numerous other dangerous products and drugs to remain in the market. And those are only the ones we know about. While some states have already begun to move in the right direction, we still have a long way to go. It is time to initiate a Federal solution for this problem. The Sunshine in Litigation Act is a modest proposal that would require federal judges to perform a simple balancing test to ensure that in any proposed secrecy order, the defendant's interest in secrecy truly outweighs the public interest in information related to public health and safety. Specifically, prior to making any portion of a case confidential or sealed, a judge would have to determine--by making a particularized finding of fact--that doing so would not restrict the disclosure of information relevant to public health and safety. Moreover, all courts, both Federal and State, would be prohibited from issuing protective orders that prevent disclosure to relevant regulatory agencies. This legislation does not prohibit secrecy agreements across the board. It does not place an undue burden on judges or our courts. It simply states that where the public interest in disclosure outweighs legitimate interests in secrecy, courts should not shield important health and safety information from the public. The time to focus some sunshine on public hazards to prevent future harm is now. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I ask unanimous consent to have the rules of procedure for the Special Committee on Aging printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I wish to acknowledge and honor the work of Citizens United for Research in Epilepsy, CURE, and its founder, Susan Axelrod. I have known Susan personally for many years and can attest to her tireless work on behalf of her daughter, Lauren, and of other children and families affected by epilepsy. Epilepsy often begins in childhood and even in its mildest forms can modify brain development, with lifelong effects on cognition ranging from learning disabilities to severe developmental disabilities. In 1998, a small group of families whose children were suffering from epilepsy joined in recognizing the need for an increased commitment to research. Together, they formed the nonprofit, volunteer-based CURE. Led by Susan, they have become tireless advocates for epilepsy awareness and have grown into one of the foremost organizations in funding cutting-edge epilepsy research. To date, CURE has raised over $9 million in its crusade toward eliminating seizures, reducing the side effects of currently available treatments, and ultimately toward finding a cure for epilepsy. I commend CURE for its unrelenting commitment to this worthy cause but underscore the fact that they cannot work alone. Epilepsy affects over 3 million patients nationwide, and the need for adequate funding for research on a Federal level is imperative if a cure is to be found. At a time when the Nation is confronted with serious health challenges like epilepsy, we must not diminish our commitment to medical research. Please join me in honoring Susan Axelrod and CURE for their years of vision, leadership, and commitment. I would ask to have the following Parade Magazine article highlighting the work of Citizens United for Research in Epilepsy printed in the Record. The material follows: [From Parade Magazine, Feb. 15, 2009] I Must Save My Child (By Melissa Fay Greene) When Susan Axelrod tells the story of her daughter, she begins like most parents of children with epilepsy: The baby was adorable, healthy, perfect. Lauren arrived in June 1981, a treasured first-born. Susan Landau had married David Axelrod in 1979, and they lived in Chicago, where Susan pursued an MBA at the University of Chicago and David worked as a political reporter for the Chicago Tribune. (He later would become chief strategist for Barack Obama's Presidential campaign and now is a senior White House adviser.) They were busy and happy. Susan attended classes while her mother babysat. Then, when Lauren was 7 months old, their lives changed overnight. ``She had a cold,'' Susan tells me as we huddle in the warmth of a coffee shop in Washington, D.C., on a day of sleet and rain. Susan is 55, fine-boned, lovely, and fit. She has light-blue eyes, a runner's tan, and a casual fall of silver and ash-blond hair. When her voice trembles or tears threaten, she lifts her chin and pushes on. ``The baby was so congested, it was impossible for her to sleep. Our pediatrician said to give her one-quarter of an adult dose of a cold medication, and it knocked her out immediately. I didn't hear from Lauren the rest of the night. In the morning, I found her gray and limp in her crib. I thought she was dead. ``In shock, I picked her up, and she went into a seizure-- arms extended, eyes rolling back in her head. I realized she'd most likely been having seizures all night long. I phoned my mother and cried, `This is normal, right? Babies do this?' She said, `No, they don't.' '' The Axelrods raced Lauren to the hospital. They stayed for a month, entering a parallel universe of sleeplessness and despair under fluorescent lights. No medicine relieved the baby. She interacted with her parents one moment, bright-eyed and friendly, only to be grabbed away from them the next, shaken by inner storms, starting and stiffening, hands clenched and eyes rolling. Unable to stop Lauren's seizures, doctors sent the family home. The Axelrods didn't know anything about epilepsy. They didn't know that seizures were the body's manifestation of abnormal electrical activity in the brain or that the excessive neuronal activity could cause brain damage. They didn't know that two-thirds of those diagnosed with epilepsy had seizures defined as ``idiopathic,'' of unexplained origin, as would be the case with Lauren. They didn't know that a person could, on rare occasions, die from a seizure. They didn't know that, for about half of sufferers, no drugs could halt the seizures or that, if they did, the side effects were often brutal. This mysterious disorder attacked 50 million people worldwide yet attracted little public attention or research funding. No one spoke to the Axelrods of the remotest chance of a cure. At home, life shakily returned to a new normal, interrupted by Lauren's convulsions and hospitalizations. Exhausted, Susan fought on toward her MBA; David became a political consultant. Money was tight and medical bills stacked up, but the Axelrods had hope. Wouldn't the doctors find the right drugs or procedures? ``We thought maybe it was a passing thing,'' David says. ``We didn't realize that this would define her whole life, that she would have thousands of these afterward, that they would eat away at her brain.'' ``I had a class one night, I was late, there was an important test,'' Susan recalls. ``I'd been sitting by Lauren at the hospital. When she fell asleep, I left to run to class. I got as far as the double doors into the parking lot when it hit me: `What are you doing?' '' She returned to her baby's bedside. From then on, though she would continue to build her family (the Axelrods also have two sons) and support her husband's career, Susan's chief role in life would be to keep Lauren alive and functioning. The little girl was at risk of falling, of drowning in the bathtub, of dying of a seizure. Despite dozens of drug trials, special diets, and experimental therapies, Lauren suffered as many as 25 seizures a day. In between each, she would cry, ``Mommy, make it stop!'' While some of Lauren's cognitive skills were nearly on target, she lagged in abstract thinking and interpersonal skills. Her childhood was nearly friendless. The drugs Lauren took made her by turns hyperactive, listless, irritable, dazed, even physically aggressive. ``We hardly knew who she was,'' Susan says. When she acted out in public, the family felt the judgment of onlookers. ``Sometimes,'' Susan says, ``I wished I could put a sign on her back that said: `Epilepsy. Heavily Medicated.' '' At 17, Lauren underwent what her mother describes as ``a horrific surgical procedure.'' Holes were drilled in her skull, electrodes implanted, and seizures provoked in an attempt to isolate their location in the brain. It was a failure. ``We brought home a 17-year-old girl who had been shaved and scalped, drilled, put on steroids, and given two black eyes,'' Susan says quietly. ``We put her through hell without result. I wept for 24 hours.'' The failure of surgery proved another turning point for Susan. ``Finally, I thought, `Well, I can cry forever, or I can try to make a change.' '' Susan began to meet other parents living through similar hells. They agreed that no federal agency or private foundation was acting with the sense of urgency they felt, leaving 3 million American families to suffer in near- silence. In 1998, Susan and a few other mothers founded a nonprofit organization to increase public awareness of the realities of epilepsy and to raise money for research. They named it after the one thing no one offered them: CURE-- Citizens United for Research in Epilepsy. ``Epilepsy is not benign and far too often is not treatable,'' Susan says. ``We wanted the public to be aware of the death and destruction. We wanted the brightest minds to engage with the search for a cure.'' Then-First Lady Hillary Clinton signed on to help; so did other politicians and celebrities. Later, veterans back from Iraq with seizures caused by traumatic brain injuries demanded answers, too. In its first decade, CURE raised $9 million, funded about 75 research projects, and inspired a change in the scientific dialogue about epilepsy. ``CURE evolved from a small group of concerned parents into a major force in our research and clinical communities,'' says Dr. Frances E. Jensen, a professor of neurology at Harvard Medical School. ``It becomes more and more evident that it won't be just the doctors, researchers, and scientists pushing the field forward. There's an active role for parents and patients. They tell us when the drugs aren't working.'' The future holds promise for unlocking the mysteries of what some experts now call Epilepsy Spectrum Disorder. ``Basic neuroscience, electrophysiological studies, gene studies, and new brain-imaging technologies are generating a huge body of knowledge,'' Dr. Jensen says. Lauren Axelrod, now 27, is cute and petite, with short black hair and her mother's pale eyes. She speaks slowly, with evident impairment but a strong Chicago accent. ``Things would be better for me if I wouldn't have seizures,'' she says. ``They make me have problems with reading and math. They make me hard with everything.'' By 2000, the savagery and relentlessness of Lauren's seizures seemed unstoppable. ``I thought we were about to lose her,'' Susan says. ``Her doctor said, `I don't know what else we can do.' '' Then, through CURE, Susan learned of a new anti-convulsant drug called Keppra and obtained a sample. ``The first day we started Lauren on the medication,'' Susan says, ``her seizures subsided. It's been almost nine years, and she hasn't had a seizure since. This drug won't work for everyone, but it has been a magic bullet for Lauren. She is blooming.'' Susan and David see their daughter regaining some lost ground: social intuition, emotional responses, humor. ``It's like little areas of her brain are waking up,'' Susan says. ``She never has a harsh word for anyone, though she did think the Presidential campaign went on a little too long. The Thanksgiving before last, she asked David, `When is this running-for-President thing going to be finished?' '' CURE is run by parents. Susan has worked for more than a decade without pay, pushing back at the monster robbing Lauren of a normal life. ``Nothing can match the anguish of the mom of a chronically ill child,'' David says, ``but Susan turned that anguish into action. She's devoted her life to saving other kids and families from the pain Lauren and our family have known. What she's done is amazing.'' ``Complete freedom from seizures--without side effects--is what we want,'' Susan says. ``It's too late for us, so we committed ourselves to the hope that we can protect future generations from having their lives defined and devastated by this disorder.''

Mr. KOHL

Mr. KOHL. We already have a shortage of health care workers who are trained and devoted to caring for older Americans and those with disabilities--a fact that is well documented in the report issued by the Institute of Medicine last year. This shortage is one that will only grow more desperate as our country ages rapidly. The United States will not be able to meet the approaching demand for health care and long-term care without a workforce that is prepared for the job. Between 2005 and 2030, it is estimated that the number of adults aged 65 and older will almost double from 37 million to over 70 million, increasing from 12 percent of the population of the United States to almost 20 percent of the population. So it is not surprising that the Department of Labor's Bureau of Labor Statistics predicts that personal or home care aides and home health aides will represent the second and third fastest growing occupations between 2006 and 2016. Only last week, the New York Times published an editorial concluding that, ``With more jobs being lost all the time across the board--more than 71,000 layoffs in the United States were announced on Monday and Tuesday alone--there should be comfort in the fact that one sector, health care, continues to add jobs.'' I will ask to have this editorial printed in the Record. Government has a special obligation to care for vulnerable populations. Inadequate training in geriatrics, gerontology, chronic care management, and long-term care is known to cause misdiagnoses, medication errors, and inadequate coordination of services and treatments that result in poor care and are costly for the health care system as a whole. Yet personal and home care aides are not subject to any Federal requirements related to training or education, and States have very different requirements for this key part of the direct care workforce. Furthermore, Federal training requirements for nurse aides and home health aides have not been updated for more than 20 years. It is time to review and improve training standards for all direct care workers. Current training protocols focus too much on tasks and too little on teaching how workers can deliver person-centered care. Further, often training does not reflect the increasingly complex needs of the frail elderly. Inadequate training has been found to be a major contributor to high turnover rates among direct care workers, while more training is correlated with better staff recruitment and retention. Equally important, the IOM report recommends that State Medicaid programs increase pay and fringe benefits for direct care workers. Investment in direct care jobs would significantly benefit our economy by providing greater economic opportunity to low-income workers, while also strengthening health services for our aging and disabled family members and friends.

Mr. KOHL. I appreciate my colleague's remarks. I was pleased to collaborate with him on the dairy letter he just referenced, and I am glad to note his support for the work the committee has done to address the credit demands confronting family farmers. My expectation is that the USDA will utilize these resources in accordance with the programs and priorities set forth in the farm bill. Family farming and ranching businesses are facing many of the same challenges confronting our broader economy and the operating and farm loans contemplated under the bill are extremely important.

Mr. KOHL. I thank Senator Wyden and Senator Baucus for their attention to these important policies and look forward to working with them in the weeks ahead. Mr. President, I ask unanimous consent that the editorial to which I referred be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, for months, news about our sinking economy has dominated. The facts are staggering. We now have a 7.2-percent unemployment rate. Upwards of 1 million good-paying manufacturing jobs were lost last year, and consumer confidence is at or near an all-time low. Last week brought more bad news. In the last quarter of 2008, the economy shrank by the most in 26 years. At the same time, we now well know about the irresponsibility of some financial executives who helped to create this crisis and who are now benefiting from Government assistance. While countless families struggle to make ends meet, some Wall Street executives rewarded themselves with bonuses totaling more than $18 billion last year. Such outrageous rewards during an economic downturn are without justification, and they draw a harsh contrast with the rest of America. Each week without a response from our Government will make that contrast more pronounced--more jobs lost and more families hurting across the country. This is not a partisan issue. Economists agree that Government needs to act and act now. I support the package before us, but I do have some reservations. The pricetag on this bill is enormous, and it is true some of the cost is in long-term investments such as in education, health care, and energy efficiency and independence, which some argue is not immediately stimulative. This is a case, however, where the sum is greater than the parts. Ultimately, this legislation contains what our economy needs to get back on track. The legislation before us combines tax relief, investments in infrastructure, and assistance to State and local governments, all aimed at putting people back to work and jump-starting our stalled economy. With $342 billion in targeted tax relief, the bill will help middle-class families. Families in Wisconsin, for example, will get on average a tax cut of $900 just this year. And the bill provides important tax incentives and benefits for businesses to save jobs and stimulate growth. The bill before us also includes funding to get people back to work while rebuilding our Nation's crumbling infrastructure. For Wisconsin, the bill funds more than $537 million in highway improvements and includes more than $218 million for school modernization. The bill also takes into account the needs of agricultural and rural communities, funding rural water and waste disposal and farm operating loans. Also, the bill provides for our neediest citizens, those who are hit hardest by this downturn, through increased funding for Food Stamps, WIC, as well as food banks. I am pleased the bill includes funding for two of my priorities--job training and the COPS Program. Job training is at the core of what this legislation is about: putting people back to work. The $1 billion of funding in the bill will retrain countless workers and prepare people for new job opportunities. In addition, the bill includes nearly $4 billion for Federal and State law enforcement programs. These programs have a track record of reducing crime, and the additional funding will create jobs quickly. In some ways, this bill is tough to swallow. I understand why there are those who may well vote against this bill who argue that it is too much money. And I understand there are 100 Senators here and each one of us would craft this bill differently. But even those voting against the measure would certainly agree that during this time of enormous stress on our economy and throughout our land, we cannot afford to do nothing. We are in an economic crisis and doing nothing is not an option. Indeed, before the final vote, there may well be some modifications to this bill. But we need to vote for a recovery package similar to the one before us today. I wish to talk briefly about an amendment I have filed that would provide $30 million to the Manufacturing Extension Partnership Program. The amendment is offset. I am hopeful this amendment can be included in a managers' package. The amendment has the support of Senators Snowe, Stabenow, Brown, Whitehouse, Levin, Sanders, Schumer, and Wyden. MEP makes small- and medium-sized manufacturers more competitive by helping them implement the latest technologies. In 2007, MEP business clients reported over 52,000 new or retrained workers, increased sales of $6.8 billion, and over $1 billion in cost savings. As a longtime supporter of the MEP Program, I believe this would be a critical addition to the bill. A healthy manufacturing sector, as we all know, is the key to better jobs, increased productivity, and higher standards of living. Mr. President, I yield the floor.

Mr. KOHL. Mr. President, I would like to briefly discuss the important subject of home- and community-based services for older adults and individuals with disabilities with my distinguished colleague Senator Baucus, who--along with Senator Inouye--is doing a commendable job of leading the Senate's discourse on the American Recovery and Reinvestment Act.

Mr. KOHL. As you and many other Senators are aware, home- and community-based services, or HCBS, are critically important to millions of older and disabled Americans who rely on Medicaid, which today is our country's most important publicly financed system for nursing home care and home-and community-based services. But there is a critical difference in the legal status of these services. Under Federal law, nursing home services are a mandatory benefit that must be offered by all States to all individuals who meet stipulated eligibility criteria. In contrast, HCBS services are not a mandatory benefit. Rather, they are offered by States under waiver programs granted by the U.S. Department of Health and Human Services for limited time periods and for limited numbers of individuals. States across the country have obtained multiple HCBS waivers over the last 20 or so years. These HCBS programs tend to be extremely popular, often because they provide a considerably wider array of nonmedical support services than are otherwise offered under the Medicaid statute. The State of Wisconsin has invested a great deal of time and effort in their waiver programs, many of which have been very successful. Nevertheless, because waiver programs are capped in terms of the number of beneficiaries who can be enrolled, there has been substantial growth in the size of waiver waiting lists, which in Wisconsin reached an unacceptably high level of more than 11,000 people. Many other States also have large waiver waiting lists. Concerned about the State's high level of unmet need, Wisconsin has embarked on a program to try to eliminate waiver waiting lists and also absorb the projected increase in demand for services during the next decade. This program is called Family Care, and it is a good example of how a State can take on the challenge of organizing long-term care services more cost-effectively. Other States are undertaking planning efforts as well. I am pleased to say that recent research has found that States that began expanding their HCBS programs in the mid-1990s experienced initial upfront costs as their level of services expanded, followed by a leveling off of costs--with the result that aggregate spending was controlled. We have reached a critical juncture with regard to the development of HCBS services. In the context of the stimulus package we are now considering--which provides States with an additional $87 billion in Medicaid funding--I believe we should urge States not to reduce these popular and needed services but, rather, to maintain and strengthen them. Does the Senator from Montana concur?

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce, with Senators Grassley, Feingold, Durbin and Brown, the Preserve Access to Affordable Generics Act. Our legislation will prevent one of the most egregious tactics used to keep generic competitors off the market, leaving consumers with unnecessarily high drug prices. The way it is done is simple--a drug company that holds a patent on a brand-name drug pays a generic drug maker to not sell a competing product. The brand name company profits so much by delaying competition that it can easily afford to pay off the generic company. The only losers are the American people, who continue to pay unnecessarily high drug prices for years to come. Our legislation is basically very simple it will make these anti- competitive, anti-consumer patent payoffs illegal. We will thereby end a practice seriously impeding generic drug competition, competition that could save consumers literally billions of dollars in health care costs. When we first introduced this legislation to ban these pay-off settlements in 2007, it had broad support from those concerned with rising health care costs, including the AARP. The New York Times editorialized in January 2007 in support of legislation to ban the pay- off settlements, pointing out that the settlements ``are a costly legal loophole that needs to be plugged by Congressional legislation.'' Despite the opposition of the Federal Trade Commission to these anti- competitive patent settlements, two 2005 appellate court decisions have permitted these backroom payoffs. And the effect of these court decisions has been stark. In the two years after these two decisions, the FTC has found, half of all patent settlements involved payments from the brand name from the generic manufacturer in return for an agreement by the generic to keep its drug off the market. In the year before these decisions, not a single patent settlement reported to the FTC contained such an agreement. When brand name drugs lose their patent monopoly, this opens the door for consumers, employers, third-party payers, and other purchasers to save billions--30 percent to 80 percent on average--by using generic versions of these drugs. A recent study released by the Pharmaceutical Care Management Association showed that health plans and consumers could save $26.4 billion over 5 years by using the generic versions of 14 popular drugs that are scheduled to lose their patent protections before 2010. The urgency of the need for this legislation was highlighted just yesterday, when the FTC filed an antitrust case challenging the latest ``pay for delay'' settlement. The FTC's Complaint alleges that Solvay, the brand name manufacturer of a hormone-boosting drug, entered into an agreement with two generic companies to delay the entry of their generic version of the drug for nine years. The FTC alleged that Solvay agreed in 2006 to share its profits with the generic competitors as long as they did not launch their generic versions until 2015. If these allegations are true, this is exactly the anti-consumer, anti- competition agreement that would be rendered illegal by our bill. We introduced this bill in the last Congress and it passed out of the Judiciary Committee without a dissenting vote. Nonetheless, we heard from some in the generic drug industry that on occasion these patent settlements may not harm competition. That is why this year's version of the legislation includes a new provision not contained in the bill introduced in the last Congress. This new provision would permit the Federal Trade Commission the guardians of competition in this industry to exempt from this amendment's ban certain agreements if the FTC determines such agreements would benefit consumers. This provision will ensure that our amendment does not prevent any agreements which will truly benefit consumers. It is also important to note that--contrary to the arguments made by some--our amendment will not ban all patent settlements. In fact, our bill will not ban any settlement which does not involve an exchange of money. This legislation will do nothing to prevent parties from settling patent litigation with an agreement that a generic will delay entry for some period of time in return for ending its challenge to the validity of the patent. Only the egregious pay-off settlements in which the brand name company also pays the generic company a sum of money to do so will be banned. In closing, we cannot profess to care about the high cost of prescription drugs while turning a blind eye to anticompetitive backroom deals between brand and generic drug companies. It is time to stop these drug company pay-offs that only serve the companies involved and deny consumers to affordable generic drugs. I urge my colleagues to join me in this effort by supporting this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to introduce, with Senators Grassley, Feingold, Durbin and Brown, the Preserve Access to Affordable Generics Act. Our legislation will prevent one of the most egregious tactics used to keep generic competitors off the market, leaving consumers with unnecessarily high drug prices. The way it is done is simple--a drug company that holds a patent on a brand-name drug pays a generic drug maker to not sell a competing product. The brand name company profits so much by delaying competition that it can easily afford to pay off the generic company. The only losers are the American people, who continue to pay unnecessarily high drug prices for years to come. Our legislation is basically very simple it will make these anti- competitive, anti-consumer patent payoffs illegal. We will thereby end a practice seriously impeding generic drug competition, competition that could save consumers literally billions of dollars in health care costs. When we first introduced this legislation to ban these pay-off settlements in 2007, it had broad support from those concerned with rising health care costs, including the AARP. The New York Times editorialized in January 2007 in support of legislation to ban the pay- off settlements, pointing out that the settlements ``are a costly legal loophole that needs to be plugged by Congressional legislation.'' Despite the opposition of the Federal Trade Commission to these anti- competitive patent settlements, two 2005 appellate court decisions have permitted these backroom payoffs. And the effect of these court decisions has been stark. In the two years after these two decisions, the FTC has found, half of all patent settlements involved payments from the brand name from the generic manufacturer in return for an agreement by the generic to keep its drug off the market. In the year before these decisions, not a single patent settlement reported to the FTC contained such an agreement. When brand name drugs lose their patent monopoly, this opens the door for consumers, employers, third-party payers, and other purchasers to save billions--30 percent to 80 percent on average--by using generic versions of these drugs. A recent study released by the Pharmaceutical Care Management Association showed that health plans and consumers could save $26.4 billion over 5 years by using the generic versions of 14 popular drugs that are scheduled to lose their patent protections before 2010. The urgency of the need for this legislation was highlighted just yesterday, when the FTC filed an antitrust case challenging the latest ``pay for delay'' settlement. The FTC's Complaint alleges that Solvay, the brand name manufacturer of a hormone-boosting drug, entered into an agreement with two generic companies to delay the entry of their generic version of the drug for nine years. The FTC alleged that Solvay agreed in 2006 to share its profits with the generic competitors as long as they did not launch their generic versions until 2015. If these allegations are true, this is exactly the anti-consumer, anti- competition agreement that would be rendered illegal by our bill. We introduced this bill in the last Congress and it passed out of the Judiciary Committee without a dissenting vote. Nonetheless, we heard from some in the generic drug industry that on occasion these patent settlements may not harm competition. That is why this year's version of the legislation includes a new provision not contained in the bill introduced in the last Congress. This new provision would permit the Federal Trade Commission the guardians of competition in this industry to exempt from this amendment's ban certain agreements if the FTC determines such agreements would benefit consumers. This provision will ensure that our amendment does not prevent any agreements which will truly benefit consumers. It is also important to note that--contrary to the arguments made by some--our amendment will not ban all patent settlements. In fact, our bill will not ban any settlement which does not involve an exchange of money. This legislation will do nothing to prevent parties from settling patent litigation with an agreement that a generic will delay entry for some period of time in return for ending its challenge to the validity of the patent. Only the egregious pay-off settlements in which the brand name company also pays the generic company a sum of money to do so will be banned. In closing, we cannot profess to care about the high cost of prescription drugs while turning a blind eye to anticompetitive backroom deals between brand and generic drug companies. It is time to stop these drug company pay-offs that only serve the companies involved and deny consumers to affordable generic drugs. I urge my colleagues to join me in this effort by supporting this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KOHL

Mr. KOHL. Mr. President, I wish to honor St. Mark's A.M.E. Church, which has been a part of Milwaukee's faith community for 140 years and serves as a shining example for the entire State of Wisconsin. In 1869, eight eager Christian men and women envisioned a ``Church of Allen.'' This church would uphold the ideals of Richard Allen, a freed slave who became the first free African to be ordained in the Methodist Church. The church's eight founders were led by Ezekiel Gillespie, a prominent figure involved in the Underground Railroad and the fight for suffrage for African-Americans in Wisconsin. The founding members became an official congregation on April 5, 1869, but the church was still missing a building to call home. Within 2 months, a plot of land was purchased and the church embraced its new house of worship. Unfortunately, expenses mounted for nearly a decade and the founders were forced to sell a portion of their land in order to cover the debt. After a city condemnation required the razing of St. Mark's original church, both the clergy and laity insisted that a new edifice be erected in its place. In 1887, they began construction of a church which would last into the 20th century. As the city of Milwaukee continued to grow and thrive, so too did the membership of St. Mark's. The increase in size prompted the creation of new churches in 1914 and again in 1953. After the Milwaukee Redevelopment Program of the 1960s, the construction of a highway ushered in the demolition of their 1953 structure. The congregation grew only stronger and its current church truly represents its lasting success. Given the moniker, ``The Friendly Church,'' St. Mark's has continually proven both its friendliness and its faith within Milwaukee. St. Mark's A.M.E. Church holds a special place in our State's history as Wisconsin's oldest African-American chartered church. St. Mark's leaders and parishioners have stalwartly defended their home and shared their devotion with our Milwaukee community, and this historic church will continue to thrive in the future. On this occasion of St. Mark's 140th anniversary, I want to offer my heartfelt congratulations.

Mr. KOHL

Mr. KOHL. Mr. President, yesterday the Senate confirmed Timothy Geithner as the Secretary of Treasury with my support. Mr. Geithner has the experience and the knowledge to lead the country through these economic hard times. The Treasury Department is facing an uphill battle to provide appropriate monetary policy and regulations to get our economy back on track. Congress has been working with Federal Reserve and the Treasury Department to find ways to jump-start our economy. Congress recently approved the release of the second half of the TARP funds and is working with the new administration to create an effective economic stimulus package. I am pleased that President Obama and Mr. Geithner have committed themselves to restructuring the TARP but stress the importance of reforms which increase accountability, transparency, and help homeowners. Furthermore, the Treasury Secretary must implement meaningful and effective policies to avoid another system-wide failure and promote long-term economic stability. Mr. Geithner's career in the Treasury Department and the Federal Reserve Bank of New York has made him well qualified for the difficult task at hand.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to reintroduce the Physician Payments Sunshine Act, along with my colleague Senator Grassley. This legislation will be a great step forward in increasing transparency of the relationships between pharmaceutical and medical device companies and our Nation's physicians, for the benefit of their patients. I want to begin by underscoring the fact that industry payments to physicians for research purposes or products they have helped develop are completely legitimate. Medical breakthroughs as a result of research have saved countless lives and could not have been achieved without the diligence of these me cal professionals. We must acknowledge, however, that conflicts of interest do exist in some cases. Transparency will help to illuminate the difference between legitimate and questionable relationships. It has been estimated that the drug industry spends $19 billion annually on marketing to physicians in the form of gifts, lunches, drug samples and sponsorship of education programs. Americans pay the price as through unnecessarily high drug costs and skyrocketing health insurance premiums. Rising drug prices hurt us all by undermining our private and public health systems, including Medicare and Medicaid. Even more alarming is the notion that these gifts and payments can compromise physicians' medical judgment by putting their financial interest ahead of the welfare of their patients. Recent studies show that the more doctors interact with drug marketers, the more likely doctors are to prescribe the expensive new drug that is being marketed to them. As a businessman, I understand that companies have the right to spend as much as they choose to promote their products. But as the largest payer of prescription drug costs, the Federal Government has an obligation to examine and take action when companies attempt to manipulate the market. I believe the Physician Payments Sunshine Act presents a long overdue solution to combat this potentially harmful influence. The legislation would require manufacturers of pharmaceutical drugs, devices and biologics to disclose the amount of money they give to doctors through payments, gifts, honoraria, travel and other means. These disclosures would be registered in a national, publicly accessible online database, managed by the U.S. Department of Health and Human Services. Those companies who fail to report will be subject to financial penalty. In the year and a half since the Sunshine bill was first introduced, several States have passed their own laws forcing disclosure, and several leading pharmaceutical companies have voluntarily implemented disclosure guidelines. A comprehensive national bill would create a one-stop information vault, here patients could easily gain access to data about these relationships. It is my hope that this online database will encourage patients to discuss any concerns they may have with their doctors. A great deal of money changes hands in the health care field, and a good percentage of it is helping Americans live healthier lives. The Physician Payments Sunshine Act will provide the transparency necessary to raise that percentage. We deserve nothing less.

Mr. KOHL

Mr. KOHL. Mr. President, I rise today to reintroduce the Physician Payments Sunshine Act, along with my colleague Senator Grassley. This legislation will be a great step forward in increasing transparency of the relationships between pharmaceutical and medical device companies and our Nation's physicians, for the benefit of their patients. I want to begin by underscoring the fact that industry payments to physicians for research purposes or products they have helped develop are completely legitimate. Medical breakthroughs as a result of research have saved countless lives and could not have been achieved without the diligence of these me cal professionals. We must acknowledge, however, that conflicts of interest do exist in some cases. Transparency will help to illuminate the difference between legitimate and questionable relationships. It has been estimated that the drug industry spends $19 billion annually on marketing to physicians in the form of gifts, lunches, drug samples and sponsorship of education programs. Americans pay the price as through unnecessarily high drug costs and skyrocketing health insurance premiums. Rising drug prices hurt us all by undermining our private and public health systems, including Medicare and Medicaid. Even more alarming is the notion that these gifts and payments can compromise physicians' medical judgment by putting their financial interest ahead of the welfare of their patients. Recent studies show that the more doctors interact with drug marketers, the more likely doctors are to prescribe the expensive new drug that is being marketed to them. As a businessman, I understand that companies have the right to spend as much as they choose to promote their products. But as the largest payer of prescription drug costs, the Federal Government has an obligation to examine and take action when companies attempt to manipulate the market. I believe the Physician Payments Sunshine Act presents a long overdue solution to combat this potentially harmful influence. The legislation would require manufacturers of pharmaceutical drugs, devices and biologics to disclose the amount of money they give to doctors through payments, gifts, honoraria, travel and other means. These disclosures would be registered in a national, publicly accessible online database, managed by the U.S. Department of Health and Human Services. Those companies who fail to report will be subject to financial penalty. In the year and a half since the Sunshine bill was first introduced, several States have passed their own laws forcing disclosure, and several leading pharmaceutical companies have voluntarily implemented disclosure guidelines. A comprehensive national bill would create a one-stop information vault, here patients could easily gain access to data about these relationships. It is my hope that this online database will encourage patients to discuss any concerns they may have with their doctors. A great deal of money changes hands in the health care field, and a good percentage of it is helping Americans live healthier lives. The Physician Payments Sunshine Act will provide the transparency necessary to raise that percentage. We deserve nothing less.