[Pages S9295-S9304]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. WYDEN (for himself, Ms. Snowe, and Mrs. Boxer):

[[Page S9296]]

S. 2004. A bill to modify certain provisions of the Health Care
Quality Improvement Act of 1986; to the Committee on Labor and Human
Resources.
______

By Mr. WYDEN:
S. 2005. A bill to prohibit the restriction of certain types of
medical communications between a health care provider and a patient; to
the Committee on Labor and Human Resources.

the patient communications protection act of 1996

Mr. WYDEN. Mr. President, I rise today to introduce two new bills
which I believe will help more fully inform patients and consumers
about the health care choices they face, and safeguard the most
critical relationship between care giver and patient.
The first bill, which I introduce with my colleagues Senator Snowe
and Senator Boxer, is the Health Care Quality Improvements Act of 1996.
It amends and improves the 1986 public law which created the national
practitioner databank, an informational resource maintained by the
Department of Health and Human Services which is a compendium of State
disciplinary actions and civil malpractice case judgments against
caregivers. As of this year, some 86,000 caregivers are listed in this
taxpayer-supported databank. Currently, this informational resource is
accessible only by hospitals, insurance plans, and State boards of
medicine and health care licensing. The legislation introduced by
Senator Snowe and me, today, would for the first time allow public
access to critically important databank records. Caregivers who have
had at least three reportable incidents in their files would have their
entire databank records opened to the public. This legislation also
would create an Internet site on the World Wide Web allowing easier
access for publicly accessible information.
The second bill, the Patient Communications Protection Act of 1996,
would make illegal provisions in some contracts between caregivers and
health plans which restrict communications between caregivers and their
patients. Too often, I believe, these contract provisions limit the
free and necessary communications of information to patients regarding
their medical condition and all possible modalities of treatment. This
legislation, while upholding the right of plans to work with physicians
to improve the overall quality of care within a health plan, clearly
restricts plans from impeding the free flow of medical information
between State-licensed caregivers and patient.
The Health Care Quality Improvements Act is endorsed by a number of
groups including Families USA, Consumer Action, the National
Association of Health Data Organizations, and the United Seniors Health
Cooperative.
The Patient Communications Protection Act is supported by the Oregon
Medical Association, the American Association of Retired Persons, the
Center for Patient Advocacy, Citizen Action, the Consumers Union, and
the American College of Emergency Physicians.
Mr. President, I ask unanimous consent that the text of the bills be
printed in the Record.
There being no objection, the bills were ordered to be printed in the
Record, as follows:

S. 2004

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Health Care Quality
Improvement Act Amendments of 1996''.

SEC. 2. STANDARDS FOR PROFESSIONAL REVIEW ACTIONS.

Section 412(a) of the Health Care Quality Improvement Act
of 1986 (42 U.S.C. 11112(a)) is amended in the matter after
and below paragraph (4) by adding at the end the following
sentence: ``A motion for summary judgment that such standards
have been met shall be granted unless, considering the
evidence in the light most favorable to the opposing party, a
reasonable finder of fact could conclude that the presumption
has been so rebutted. The decision on such a motion may be
appealed as of right, without regard to whether the motion is
granted or denied, and the courts of appeals (other than the
United States Court of Appeals for the Federal Circuit) have
jurisdiction of appeals from such decisions of the district
courts.''.

SEC. 3. REQUIRING REPORTS ON MEDICAL MALPRACTICE DATA.

(a) In General.--Section 421 of the Health Care Quality
Improvement Act of 1986 (42 U.S.C. 11131) is amended--
(1) by striking subsections (a) and (b);
(2) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(3) by inserting before subsection (d) (as so redesignated)
the following subsections:
``(a) In General.--
``(1) Requirement of reporting.--Subject to the subsequent
provisions of this subsection, each person or entity which
makes payment under a policy of insurance, self-insurance, or
otherwise in settlement (or partial settlement) of, or in
satisfaction of a judgment in, a medical malpractice action
or claim shall report, in accordance with section 424,
information respecting the payment and circumstances thereof.
``(2) Payments by practitioners.--The persons to whom the
requirement of paragraph (1) applies include a physician or
other licenses healthcare practitioner who makes a payment
described in such paragraph and whose acts or omissions are
the basis of the action or claim involved. The preceding
sentence is subject to paragraph (3).
``(3) Refind of fees.--With respect to a physician or other
licensed health care practitioner whose acts or omissions are
the basis of an action or claim described in paragraph (1),
the requirement of such paragraph shall not apply to a
payment described in such paragraph if--
``(A) the payment is made by the physician or practitioner
as a refund of fees for the health services involved, and
``(B) the payment does not exceed the amount of the
original charge for the health services.
``(4) Definition of entity and person.--For purposes of
this section, the term `entity' includes the Federal
Government, any State or local government, and any insurance
company or other private entity; and the term `person'
includes Federal officers and employees.
``(b) Information To Be Reported.--The information to be
reported under subsection (a) by a person or entity regarding
a payment and an action or claim includes the following:
``(1)(A) The name of each physician or other licensed
health care practitioner whose acts or omissions were the
basis of the action or claim; and (to the extent authorized
under title II of the Social Security Act) the social
security account number assigned to the physician or
practitioner.
``(B) The medical field of the physician or practitioner,
including as applicable the medical specialty.
``(C) The date on which the physician or practitioner was
first licensed in the medical field involved, and the number
of years the physician or practitioner has been practicing in
such field.
``(D) If the physician or practitioner could not be
identified for purposes of subparagraph (A)--
``(i) a statement of such fact and an explanation of the
inability to make the identification, and
``(ii) the name of the hospital or other health services
organization (as defined in section 431) for whose benefit
the payment was made.
``(2) The amount of the payment.
``(3) The name (if known) of any hospital or other health
services organization with which the physician or
practitioner is affiliated or associated.
``(4)(A) A statement that describes the acts or omissions
and injuries or illnesses upon which the action or claim was
based, that specifies whether an action was filed, and if an
action was filed, that specifies whether the action was a
class action.
``(B) A statement by the physician or practitioner
regarding the action or claim, if the physician or
practitioner elects to make such a statement.
``(C) If the payment was made without the consent of the
physician or practitioner, a statement specifying such fact
and the reasons underlying the decision to make the payment
without such consent.
``(5) Such other information as the Secretary determines is
required for appropriate interpretation of information
reported under this section.
``(c) Certain Reporting Criteria; Notice to
Practitioners.--
``(1) Reporting criteria.--The establishing criteria under
section 424(a) for reports under this section, the Secretary
shall establish criteria regarding statements under
subsection (b)(4). Such criteria shall include--
``(A) criteria regarding the length of each of the
statements,
``(B) criteria regarding the notice required by paragraph
(2) of this subsection, and
``(C) such other criteria as the Secretary determines to be
appropriate.
``(2) Notice of opportunity to make statement.--In the case
of an entity that prepares a report under subsection (a)(1)
regarding a payment and an action or claim, the entity shall
notify any physician or practitioner identified
under subsection (b)(1)(A) of the opportunity to make a
statement under subsection (b)(4)(B). Criteria under
paragraph (1)(B) of this subsection shall include criteria
regarding the date by which the reporting entity is to
provide the notice and the date by which the physician or
practitioner is to submit the statement to the entity.''.
(b) Definition of Health Services Organization.--Section
431 of the Health Care Quality Improvement Act of 1986 (42
U.S.C. 11151) is amended--
(1) by redesignating paragraphs (5) through (14) as
paragraphs (6) through (15), respectively; and

[[Page S9297]]

(2) by inserting after paragraph (4) the following
paragraph:
``(5) The term `health services organization' means an
entity that, directly or through contracts, provides health
services. Such term includes hospitals; health maintenance
organizations and other health plans; and health care
entities (as defined in paragraph (4)).''.
(c) Conforming Amendments.--
(1) In general.--The Health Care Quality Improvement Act of
1986 (42 U.S.C. 11101 et seq.) is amended--
(A) in section 411(a)(1), in the matter preceding
subparagraph (A), by striking ``431(9)'' and inserting
``431(10)'';
(B) in section 421(d) (as redesignated by subsection (a)(2)
of this section), by inserting ``person or'' before
``entity'';
(C) in section 422(a)(2)(A), by inserting before the comma
at the end the following: ``, and (to the extent authorized
under title II of the Social Security Act) the social
security account number assigned to the physician''; and
(D) in section 423(a)(3)(A), by inserting before the comma
at the end the following: ``, and (to the extent authorized
under title II of the Social Security Act) the social
security account number assigned to the physician or
practitioner''.
(2) Applicability of requirements to federal entities.--
(A) Section 432 of the Health Care Quality Improvement Act
of 1986 (42 U.S.C. 11152) is amended--
(i) by striking subsection (b); and
(ii) by redesignating subsection (c) as subsection (b).
(B) Section 432 of the Health Care Quality Improvement Act
of 1986 (42 U.S.C. 11133) is amended by adding at the end the
following subsection:
``(e) Applicability to Federal Facilities and Physicians.--
``(1) In general.--Subsection (a) applies to Federal health
facilities (including hospitals) and actions by such
facilities regarding the competence or professional conduct
of Federal physicians to the same extent and in the same
manner as such subsection applies to health care entities and
professional review actions.
``(2) Relevant board of medical examiners.--For purposes of
paragraph (1), the Board of Medical Examiners to which a
Federal health facility is to report is the Board of Medical
Examiners of the State within which the facility is
located.''.
(C) Section 425 of the Health Care Quality Improvement Act
of 1986 (42 U.S.C. 11135) is amended by adding at the end the
following subsection:
``(d) Applicability to Federal Hospitals.--This section
applies to Federal hospitals to the same extent and in the
same manner as such subsection applies to other
hospitals.''.

SEC. 4. REPORTING OF SANCTIONS TAKEN BY BOARDS OF MEDICAL
EXAMINERS.

Section 422(a) of the Health Care Quality Improvement Act
of 1986 (42 U.S.C. 11132(a)) is amended--
(1) in paragraph (1)(A), by striking ``which revokes or
suspends'' and inserting ``which denies, revokes, or
suspends''; and
(2) in paragraph (2)--
(A) in subparagraph (B), by striking ``(if known)'' and all
that follows and inserting ``for the action described in
paragraph (1)(A) that was taken with respect to the physician
or, if known, for the surrender of the license,'';
(B) by redesignating subparagraph (C) as subparagraph (E);
and
(C) by inserting after subparagraph (B) the following
subparagraphs:
``(C) the medical field of the physician, if known,
including as applicable the medical specialty,
``(D) the date on which the physician was first licensed in
the medical field, and the number of years the physician has
been practicing in such field, if known, and''.

SEC. 5. REPORTING OF CERTAIN PROFESSIONAL REVIEW ACTIONS
TAKEN BY HEALTH CARE ENTITIES.

Section 423(a)(3) of the Health Care Quality Improvement
Act of 1986 (42 U.S.C. 11133(a)(3)) is amended--
(1) in subparagraph (B), by striking ``and'' after
``surrender,'';
(2) by redesignating subparagraph (C) a subparagraph (E);
and
(3) by inserting after subparagraph (B) the following
subparagraphs:
``(C) the medical field of the physician, if known,
including as applicable the medical specialty,
``(D) the date on which the physician was first licensed in
the medical field, and the number of years the physician has
been practicing in such field, if known, and''.

SEC. 6. FORM OF REPORTING.

Section 424 of the Health Care Quality Improvement Act of
1986 (42 U.S.C. 11134) is amended by adding at the end the
following subsection:
``(d) Additional Requirements.--Not later than 30 days
after the effective date for this subsection under section 11
of the Health Care Quality Improvement Act Amendments of
1996, the information reported under sections 421, 422(a),
and 423(b) shall be available (to persons and entities
authorized in this Act to receive the information) in
accordance with the following:
``(1) The methods of organizing the information shall
include organizing by medical field (and as applicable by
medical specialty).
``(2) With respect to medical malpractice actions reported
under section 421(b)(4)(A), the methods of organizing shall
specify whether the action was a class action.''.

SEC. 7. DUTY TO OBTAIN INFORMATION.

Part B of the Health Care Quality Improvement Act of 1986
(42 U.S.C. 11131 et seq.) is amended by inserting after
section 425 the following section:

``SEC. 425A. DUTY OF BOARDS OF MEDICAL EXAMINERS TO OBTAIN
INFORMATION.

``(a) In General.--Effective 2 years after the date of the
enactment of the Health Care Quality Improvement Act
Amendments of 1996, it is the duty of each Board of Medical
Examiners to request from the Secretary (or the agency
designated under section 424(b)) information reported
under this part concerning a physician--
``(1) at the time the physician submits the initial
application for a physician's license in the State involved,
and
``(2) at each time the physician submits an application to
continue in effect the license, subject to subsection (d).

A Board of Medical Examiners may request information reported
under this part concerning a physician at other times.
``(b) Failure To Obtain Information.--With respect to an
action for mandamus or other cause of action against a Board
of Medical Examiners, a Board which does not request
information respecting a physician as required under
subsection (a) is presumed to have knowledge of any
information reported under this part to the Secretary with
respect to the physician.
``(c) Reliance on Information Provided.--With respect to a
cause of action against a Board of Medical Examiners, each
Board of Medical Examiners may rely upon information provided
to the Board under this title, unless the Board has knowledge
that the information provided was false.
``(d) State Option Regarding Continuation of Licenses.--
``(1) Establishment of electronic system for transmission
of data.--After consultation with the States, the Secretary
shall establish a system for electronically transmitting
information under this part to States that elect to install
equipment necessary for participation in the system. The
system shall possess the capability to receive transmissions
of data from such States.
``(2) State option regarding electronic system.--With
respect to compliance with subsection (a)(2) (relating to
applications to continue in effect physicians' licenses), if
a State is participating in the system under paragraph (1)
and provides the Board of Medical Examiners of the State with
access to the system, the Board may elect, in lieu of
complying with subsection (a)(2), to comply with paragraph
(3) of this subsection.
``(3) Description of option.--For purposes of paragraph
(2), a Board of Medical Examiners is complying with this
paragraph if--
``(A) through the system under paragraph (1), the Board
annually transmits to the Secretary (or the agency designated
under section 424(b)) data identifying all individuals who
hold a valid physician's license issued by the Board, without
regard to whether the licenses are expiring, and
``(B) after receiving from the Secretary (or such agency) a
list of physicians under paragraph (4)(B), the Board complies
with paragraph (5).
``(4) Identification by secretary of relevant physicians.--
After receiving data under paragraph (3)(A) from a Board of
Medical Examiners, the Secretary (or the agency designated
under section 424(b)) shall--
``(A) from among the physicians identified through the
data, determine which of such physicians has been the subject
of information reported under this part, and the State in
which the incidents involved occurred, and
``(B) provide to the Board, through the system under
paragraph (1), a list of the physicians who have been such
subjects, which list specifies for each physician the States
in which the incidents involved occurred.
``(5) Request by state of information on relevant
physicians.--For purposes of paragraph
(3)(B), a Board of Medical Examiners of a State is
complying with this paragraph if, after receiving the list of
physicians under paragraph (4)(B), the Board promptly--
(A) identifies which of the physicians has had, for
purposes of paragraph (4), an incident in another State, and
(B) requests for the Secretary (or the agency) information
reported under this part concerning each of the physicians so
identified.''.

SEC. 8. ADDITIONAL PROVISIONS REGARDING ACCESS TO
INFORMATION; MISCELLANEOUS PROVISIONS.

(a) Access to Information.--Section 427(a) of the Health
Care Quality Improvement Act of 1986 (42 U.S.C. 11137(a)) is
amended to read as follows:
``(a) Access Regarding Licensing, Employment, and Clinical
Privileges.--The Secretary (or the agency designated under
section 424(b)) shall, upon request, provide information
reported under this part concerning a physician or other
licensed health care practitioner to--
``(1) State licensing boards, and
``(2) hospitals and other health services organizations--
``(A) that have entered (or may be entering) into an
employment or affiliation relationship with the physician or
practitioner, or
``(B) to which the physician or practitioner has applied
for clinical privileges or appointment to the medical
staff.''.
(b) Fees.--Section 427(b)(4) of the Health Care Quality
Improvement Act of 1986 (42

[[Page S9298]]

U.S.C. 11137(b)(4)) is amended to read as follows:
``(4) Fees.--In disclosing information under subsection (a)
or section 426, the Secretary may impose fees in amounts
reasonably related to the costs of carrying out the duties of
the Secretary regarding the information reported under this
part (including the functions specified in section 424(b)
with respect to the information), except that a fee may not
be imposed for providing a list under section 425A(d)(4)(B)
to any Board of Medical Examiners. Such fees are available to
the Secretary (or, in the Secretary's discretion, to the
agency designated under section 424(b)) to cover such costs.
Such fees remain available until expended.''.
(c) Additional Disclosures of Information.--Section 427 of
the Health Care Quality Improvement Act of 1986 (42 U.S.C.
11137) is amended by adding at the end the following
subsection:
``(e) Availability of Information to Public.--
``(1) In general.--Not later than 30 days after the
effective date for this subsection under section 11 of the
Health Care Quality Improvement Act Amendments of 1996, and
every 3 months thereafter, the Secretary shall, except as
provided in paragraph (2), make available to the public all
information reported under sections 421, 422(a), and 423(b).
For such purpose, the information shall be published as a
separate document whose principal topic is such information,
and in addition the information shall be made available
through the method described in paragraph (3).
``(2) Limitations.--In the case of a physician or other
licensed health care practitioner with respect to whom one or
more incidents have been reported under sections 421, 422(a),
and 423(b), the following applies:
``(A) Information may not be made available under paragraph
(1) if, subject to subparagraph (B), the aggregate number of
discrete incidents reported under such sections is not more
than 2.
``(B) A discrete incident reported under section 421 may
not be counted under subparagraph (A) if the payment for the
medical malpractice action or claim involved was less than
$25,000.
``(C) If the number of discrete incidents counted under
subparagraph (A) is 3 or more, the resulting availability of
information under paragraph (1) with respect to such
practitioner shall include information reported on all the
discrete incidents that were so counted. Such availability
may not include information on any incident not counted by
reason of subparagraph (B).
``(D) Of the information reported under section 421, the
following information may not be made available under
paragraph (1) (regardless of the number of discrete incidents
counted under subparagraph (A) and regardless of the amount
of the payments involved):
``(i) The social security account number of the physician
or practitioner.
``(ii) Information disclosing the identity of any patient
involved in the incidents involved.
``(iii) With respect to information that the Secretary
requires under section 421(b)(5) (if any)--
``(I) the home address of the physician or practitioner,
and
``(II) the number assigned to the physician or practitioner
by the Drug Enforcement Administration.
``(iv) Information not required to be reported under such
section.
``(3) Use of internet.--For purposes of paragraph (1), the
method described in this paragraph is to make the information
involved available to the public through the
telecommunications medium known as the World Wide Web of the
Internet. The Secretary, acting through the Administrator of
the Health Resources and Services Administration, shall
provide for the establishment of a site on such medium, and
shall update the information maintained through such medium
not less frequently than once every 3 months.
``(4) Dissemination; fees.--The Secretary shall disseminate
each publication under paragraph (1) to public libraries
without charge. In providing the publication to other
entities, and in making information available under paragraph
(3), the Secretary may impose a fee reasonably related to the
costs of the Secretary in carrying out this subsection. Such
fees are available to the Secretary (or, in the Secretary's
discretion, to the agency designated under section 424(b)) to
cover such costs. Such fees remain available until
expended.''.
(d) Conforming Amendments.--Section 427 of the Health Care
Quality Improvement Act of 1986 (42 U.S.C. 11137) is
amended--
(1) in subsection (b)(1), in the first sentence, by
striking ``Information reported'' and inserting the
following: ``Except for information disclosed under
subsection (e), information reported''; and
(2) in the heading for the section, by striking
``MISCELLANEOUS PROVISIONS'' and inserting the following:
``ADDITIONAL PROVISIONS REGARDING ACCESS TO INFORMATION;
MISCELLANEOUS PROVISIONS''.

SEC. 9. OTHER MATTERS.

The Health Care Quality Improvement Act of 1986 (42 U.S.C.
11101 et seq.) is amended--
(1) by redesignating part C as part D; and
(2) by inserting after part B the following part:

``PART C--OTHER MATTERS REGARDING IMPROVEMENT OF HEALTH CARE QUALITY

``SEC. 428. PROHIBITION AGAINST SETTLEMENT WITHOUT CONSENT OF
PRACTITIONER.

``(a) Prohibition.--With respect to a physician or other
licensed health care practitioner whose acts or omissions are
the basis of a medical malpractice action or claim, an entity
may not make a payment described in section 421(a)(1) without
the written consent of the physician or practitioner, subject
to subsection (b).
``(b) Exceptions.--Subsection (a) shall not apply with
respect to a payment by an entity regarding an action or
claim, subject to subsection (c)--
``(1) if the payment is made in satisfaction of a judgment
in a court of competent jurisdiction,
``(2) if, with respect to the action or claim, the
physician or other licensed health care practitioner involved
enters a process of alternative dispute resolution, and the
process has been concluded or any of the individuals involved
has terminated participation in the process,
``(3)(A) the entity delivers directly, or makes a
reasonable effort to deliver through the mail, a written
notice to the physician or practitioner involved providing
the information specified in subsection (c), and
``(B) a 30-day period elapses, at the conclusion of which
the entity has a reasonable belief that the physician or
practitioner does not object to the payment.
``(c) Criteria Regarding Notice.--For purposes of
subsection (b)(3) regarding a written notice to a physician
or practitioner--
``(1) the notice shall be considered to have been delivered
if the notice was delivered to the home or business address
of the physician or practitioner, and to the attorney (if
any) representing the physician or practitioner in the action
or claim involved,
``(2) the notice shall be considered to have been delivered
directly if the notice was delivered personally by the entity
involved or by an agent of the entity,
``(3) the entity shall be considered to have made a
reasonable effort to deliver the notice through the mail if
the entity provided the notice through certified mail, with
return receipt requested,
``(4) the information specified in this paragraph for the
notice is that the entity intends to make the payment
involved; that the physician or practitioner has a legal
right to prohibit the payment; and that such right expires in
30 days, with a specification of the date on which the right
expires, and
``(5) the 30-day period begins on the date on which the
notice is delivered directly to the physician or
practitioner, or on the seventh day after the date on which
the notice is posted, as the case may be.
``(d) Civil Money Penalty.--An entity that makes a payment
in violation of subsection (a) shall be subject to a civil
money penalty of not more than $10,000 for each such payment
involved. Such penalty shall be imposed and collected in the
same manner as civil money penalties under subsection (a) of
section 1128A of the Social Security Act are imposed and
collected under that section.

``SEC. 429. EMPLOYMENT TERMINATION OF PHYSICIAN.

``(a) Requirement of Adequate Notice and Hearing.--
``(1) In general.--A health services organization may not
terminate the employment of a physician, and may not
terminate a contract with a physician for the provision of
health services, unless adequate notice and hearing
procedures have been afforded the physician involved.
``(2) Applicability.--Section 412(a)(3) applies in lieu of
paragraph (1) in the case of an employment termination that
is a professional review action. (With respect to the
preceding sentence, paragraph (1) does apply to an
employment termination that is an action described in
subparagraph (A) of section 431(10) or in the other
subparagraphs of such section.)
``(b) Safe Harbor.--
``(1) In general.--A health services organization is deemed
to have met the adequate notice and hearing requirement of
subsection (a) with respect to the employment of, or a
contract of, a physician if the conditions described in
paragraphs (2) through (4) are met (or are waived voluntarily
by the physician).
``(2) Notice of proposed action.--Conditions under
paragraph (1) are that the physician involved has been given
notice stating--
``(A)(i) that the health services organization proposes to
take action to terminate the employment or contract,
``(ii) reasons for the proposed action,
``(B)(i) that the physician has the right to request a
hearing on the proposed action,
``(ii) any time limit (of not less than 30 days) within
which to request such a hearing, and
``(C) a summary of the rights in the hearing under
paragraph (4).
``(3) Notice of hearing.--Conditions under paragraph (1)
are that, if a hearing is requested on a timely basis under
paragraph (2)(B), the physician involved must be given notice
stating--
``(A) the place, time, and date, of the hearing, which date
shall not be less than 30 days after the date of the notice,
and
``(B) a list of the witnesses (if any) expected to testify
at the hearing on behalf of the health services organization.
``(4) Conduct of hearing and notice.--Conditions under
paragraph (1) are that, if a hearing is requested on a timely
basis under paragraph (2)(B)--

[[Page S9299]]

``(A) subject to subparagraph (B), the hearing shall be
held (as determined by the health services organization)--
``(i) before arbitrator mutually acceptable to the
physician involved and the health services organization,
``(ii) before a hearing officer who is appointed by the
organization and who is not in direct economic competition
with the physician, or
``(iii) before a panel of individuals who are appointed by
the organization and are not in direct economic competition
with the physician,
``(B) the right to the hearing may be forfeited if the
physician fails, without good cause, to appear,
``(C) in the hearing the physician has the right--
``(i) to representation by an attorney or other person of
the physician's choice,
``(ii) to have a record made of the proceedings, copies of
which may be obtained by the physician upon payment of any
reasonable charges associated with the preparation thereof,
``(iii) to call, examine, and cross-examine witnesses,
``(iv) to present evidence determined to be relevant by the
hearing officer, regardless of its admissibility in a court
of law, and
``(v) to submit a written statement at the close of the
hearing, and
``(D) upon completion of the hearing, the physician has the
right--
``(i) to receive the written recommendation of the
arbitrator, officer, or panel, including a statement of the
basis for the recommendations, and
``(ii) to receive a written decision of the health services
organization, including a statement of the basis for the
decision.
``(c) Rule of Construction.--A health services
organization's failure to meet the conditions described in
paragraphs (2) through (4) of subsection (b) shall not, in
itself, constitute failure to meet the standards of
subsection (a).''.

SEC. 10. DEFINITIONS.

Section 431(6) of the Health Care Quality Improvement Act
of 1986, as redesignated by section 3(b)(1) of this Act, is
amended by inserting before the period the following:
``(except that such term means an institution described in
such paragraph (1) (without regard to such paragraph (7)) if,
under applicable State or local law, the institution is
permitted to operate without being licensed or otherwise
approved as a hospital)''.

SEC. 11. EFFECTIVE DATES.

(a) Incorporation of Text of Amendments.--The amendments
described in this Act are made upon the date of the enactment
of this Act.
(b) Substantive Effect.--Except as provided in subsection
(c)(1) and subsection (d), and except as otherwise provided
in this Act--
(1) the amendments made by this Act take effect upon the
expiration of the 1-year period beginning on the date of the
enactment of this Act; and
(2) prior to the expiration of such period, the Health Care
Quality Improvement Act of 1986, as in effect on the day
before such date of enactment, continues in effect.
(c) Regulations.--
(1) In general.--With respect to the amendments made by
this Act, the Secretary of Health and Human Services may
issue regulations pursuant to such amendments before the
expiration of the period specified in subsection (b)(1), and
may otherwise take appropriate action before the expiration
of such period to prepare for the responsibilities of the
Secretary to the amendments.
(2) Absence of final rule.--The final rule for purposes of
paragraph (1) may not take effect before the expiration of
the period specified in subsection (b)(1), and the absence of
such a rule upon such expiration does not affect the
provisions of subsection (b).
(d) Transitional Provisions Regarding Malpractice Payments
by Persons.--With respect to the reporting of information
under section 421 of the Health Care Quality Improvement Act
of 1986, the following applies:
(1) The requirement of reporting by persons under section
421(a)(1) of such Act (as amended by section 3(a) of this
Act) takes effect 180 days after the date of the enactment of
this Act.
(2) The requirement of reporting by persons applies to
payments under such section 421(a)(1) made before, on, or
after such date of enactment.
(3)(A) The information received by the Secretary of Health
and Human Services on or before August 27, 1993, pursuant to
regulations requiring reports from persons (in addition to
reports from entities) shall be maintained in the same manner
as the information was maintained prior to such date, and
shall be available in accordance with the regulations in
effect under such Act prior to such date (which regulations
remain in effect unless a provision of this Act takes effect
pursuant to this section and requires otherwise).
(B) Subparagraph (A) takes effect on the date of the
enactment of this Act.

S. 2005

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; FINDINGS.

(a) Short Title.--This Act may be cited as the ``Patient
Communications Protection Act of 1996''.
(b) Findings.--Congress finds the following:
(1) Patients need access to all relevant information to
make appropriate decisions, with their physicians, about
their health care.
(2) Restrictions on the ability of physicians to provide
full disclosure of all relevant information to patients
making health care decisions violate the principles of
informed consent and practitioner ethical standards.
(3) The offering and operation of health plans affect
commerce among the States. Health care providers located in
one State serve patients who reside in other States as well
as that State. In order to provide for uniform treatment of
health care providers and patients among the States, it is
necessary to cover health plans operating in one State as
well as those operating among the several States.

SEC. 2. PROHIBITION OF INTERFERENCE WITH CERTAIN MEDICAL
COMMUNICATIONS.

(a) In General.--
(1) Prohibition of certain provisions.--Subject to
paragraph (2), an entity offering a health plan (as defined
in subsection (d)(2)) may not include any provision that
prohibits or restricts any medical communication (as defined
in subsection (b)) as part of--
(A) a written contract or agreement with a health care
provider,
(B) a written statement to such a provider, or
(C) an oral communication to such a provider.
``(2) Construction.--Nothing in this section shall be
construed as preventing an entity from exercising mutually
agreed upon terms and conditions not inconsistent with
paragraph (1), including terms or conditions requiring
caregivers to participate in, and cooperate with, all
programs, policies, and procedure developed or operated by
the person, corporation, partnership, association, or other
organization to ensure, review, or improve the quality of
health care.
(3) Nullification.--Any provision described in paragraph
(1) is null and void.
(b) Medical Communication Defined.--In this section, the
term ``medical communication'' means a communication made by
a health care provider with a patient of the provider (or the
guardian or legal representative of such patient) with
respect to the patient's physician or mental condition or
treatment options.
(c) Enforcement Through Imposition of Civil Money
Penalty.--
(1) In general.--Any entity that violates paragraph (1) of
subsection (a) shall be subject to a civil money penalty of
up to $15,000 for each violation. No such penalty shall be
imposed solely on the basis of an oral communication unless
the communication is part of a pattern or practice of such
communications and the violation is demonstrated by a
preponderance of the evidence.
(2) Procedures.--The provisions of subsections (c) through
(l) of section 1128A of the Social Security Act (42 U.S.C.
1320a-7a) shall apply to civil money penalties under
paragraph (1) in the same manner as they apply to a penalty
or proceeding under section 1128A(a) to a penalty or
proceeding under section 1128A(a) of such Act.
(d) Definitions.--For purposes of this section:
(1) Health care provider.--The term ``health care
provider'' means anyone licensed under State law to provide
health care services, including a practitioner such as a
nurse anesthetist or chiropractor who is so licensed.
(2) Health plan.--The term ``health plan'' means any public
or private health plan or arrangement (including an employee
welfare benefit plan) which provides, or pays the cost of,
health benefits, and includes an organization of health care
providers that furnishes health services under a contract or
agreement with such a plan.
(3) Coverage of third party administrators.--In the case of
a health plan that is an employee welfare benefit plan (as
defined in section 3(1) of the Employee Retirement Income
Security Act of 1974), any third party administrator or other
person with responsibility for contracts with health care
providers under the plan shall be considered, for purposes of
this section, to be an entity offering such health plan.
(e) Non-Preemption of State Law.--A State may establish or
enforce requirements with respect to the subject matter of
this section, but only if such requirements are consistent
with the Act and are more protective of medical
communications than the requirements established under this
section.
(g) Effective Date.--Subsection (a) shall take effect 180
days after the date of the enactment of this Act and shall
apply to medical communications made on or after such date.
______

By Mr. HATCH (for himself, Mr. Biden, Mr. Thurmond, and Mr.
Grassley):
S. 2006. A bill to clarify the intent of Congress with respect to the
Federal carjacking prohibition.

the carjacking correction act of 1996

Mr. HATCH. Mr. President, I rise to introduce the Carjacking
Correction Act of 1996. This bill adds an important clarification to
the Federal carjacking statute, which is to provide that a rape
committed during a carjacking should be considered a serious bodily
injury.
I am pleased to be joined in this effort by the ranking member of the
Judiciary Committee, Senator Biden. He

[[Page S9300]]

has long been a leader in addressing the threat of violence against
women, and our partnership in enacting the Violence Against Women Act
is evidence of strong bipartisan outrage at every incident of assault
or domestic violence.
This correction to the law is necessitated by the fact that at least
one court has held that under the Federal carjacking statute, rape
would not constitute a serious bodily injury. Few crimes are as brutal,
vicious, and harmful to the victim than rape. Yet, under this
interpretation, the sentencing enhancement for such injury may not be
applied to a carjacker who brutally rapes his victim.
In my view, Congress should act now to clarify the law in this
regard. The bill we introduce today would do this by specifically
including rape as serious bodily injury under the statute.
I want to thank Representative John Conyers, the ranking member of
the House Judiciary Committee, who brought this matter to my attention
and is leading the effort in the House for passage of this legislation.
I urge my colleagues to support swift passage of this bill.
______

By Mr. DASCHLE (for himself, Mr. Rockefeller, Mr. Kerry, Mr.
Wellstone, Ms. Mikulski, Mr. Byrd, Mr. Dodd, Mr. Conrad, Mr.
Inouye, Mr. Pell, Mr. Simon, Mr. Feingold, Mr. Breaux, Mrs.
Boxer, Mr. Dorgan, Mrs. Feinstein, Mr. Glenn, Mr. Harkin, Mr.
Robb, and Mr. Kennedy):
S. 2008. A bill to amend title 38, United States Code, to provide
benefits for certain children of Vietnam veterans who are born with
spina bifida, and for other purposes; to the Committee on Veterans
Affairs.

The Agent Orange Benefits Act of 1996

Mr. DASCHLE. Mr. President, today, with 19 of my colleagues, I am
introducing the Agent Orange Benefits Act of 1996. This legislation is
an important step toward easing the burden of innocent, indirect
victims of our country's use of agent orange during the Vietnam war.
The bill would extend health care and related benefits, including a
monthly monetary allowance, to Vietnam veterans' children suffering
from spina bifida--a serious neural tube birth defect that requires
lifelong care.
This bill is a necessary followup to the Agent Orange Act of 1991,
which I coauthored with Senators Kerry and Cranston and Representative
Lane Evans and which unanimously passed the Senate. Among other things,
the Agent Orange Act required the Department of Veterans Affairs [VA]
to contract with the Institute of Medicine [IOM], which is part of the
National Academy of Sciences [NAS], to conduct a scientific review of
all evidence pertaining to exposure to agent orange and other
herbicides used in Vietnam and the subsequent occurrence of disease and
other health-related conditions. The law required an initial report,
which was issued by NAS in 1993, followed by biennial updates for 10
years. The first update was published by NAS last March.
In accordance with the law, Vietnam veterans are not required to
prove exposure to agent orange; the law presumes that all military
personnel who served in Vietnam were exposed to agent orange. The
Secretary is to provide presumptive disability compensation for
diseases suffered by Vietnam veterans whenever he determines, based on
all credible evidence, including the congressionally mandated NAS
reports, that a positive association exists between exposure and the
occurrence of such diseases in humans. For purposes of this law, a
positive association must be found to exist whenever credible evidence
for an association is equal to or outweighs the credible evidence
against the association.
We have been struggling for decades to provide compensation and
health care for Vietnam veterans--and, if warranted, their children--
for health problems associated with exposure to agent orange. Since
1985, Vietnam veterans have been eligible for free VA health care for
conditions believed to be related to exposure to agent orange. Vietnam
veterans are also eligible for presumptive disability compensation for
several diseases, including chloracne and various cancers, associated
with exposure to agent orange or other herbicides used in Vietnam. Most
recently, in response to the March NAS report, the Secretary of
Veterans Affairs awarded service-connected disability compensation for
prostate cancer and acute and subacute peripheral neuropathy.
An area of key concern to Vietnam veterans has been what they believe
to be a high rate of birth defects in the children born to them since
their service in Vietnam. The Agent Orange Act of 1991 specifically
mandated that the area of reproductive disorders and birth defects be
given special attention to determine whether or not compensatory action
is warranted. The March NAS report showed new evidence suggesting a
link between exposure to agent orange and the occurrence of spina
bifida in Vietnam veterans' children. The report also noted that there
is growing evidence, though not as strong as the evidence on spina
bifida at this point, suggestive of an increase in other birth defects
among Vietnam veterans' children.
In response to the NAS report, the Secretary of Veterans Affairs
assembled an interdepartmental task force, which consulted with
interested veterans' service organizations and experts in spina bifida,
to review the NAS findings and make policy recommendations to the
Secretary.
In May, the Secretary delivered to the President several policy
recommendations based on the VA's review of the NAS report. These
included recommendations to add prostate cancer and acute and subacute
peripheral neuropathy to the list of presumptive diseases, and, if
authority were granted, to treat spina bifida in veterans' children in
the same manner. The VA does not currently have the authority to
provide benefits to veterans' children. Subsequently, President Clinton
announced that the administration would propose legislation to provide
an appropriate remedy for Vietnam veterans' children who suffer from
spina bifida. This bill reflects that effort.
Clearly, the Government's responsibility does not end once veterans
return from war. Effects of combat, even those passed down through
reproductive disorders, are a direct result of our decisions to place
our Nation's men and women in harm's way. We have a moral
responsibility to help veterans whose children suffer from spina bifida
and to meet those children's health care needs.
It should be noted that spina bifida is a devastating, irreversible
birth defect resulting from the failure of the spine to properly close
early in pregnancy. It requires lifelong medical treatment, and the
cost of caring for a child with spina bifida can be financially
devastating for families. While spina bifida affects approximately one
of every 1,000 newborns in the United States, a study of Vietnam
veterans that was included in the NAS report showed three spina bifida
cases in a group of only 792 infants of Vietnam veterans--a
statistically significant result.
The Agent Orange Benefits Act of 1996 would provide health care,
limited vocational rehabilitation, and a monthly stipend to Vietnam
veterans' children with spina bifida based on the severity of each
child's condition. It includes the provision of essential medical care
and case management services to coordinate health and social services
for the child.
Unfortunately, the NAS report confirmed what Vietnam veterans have
long feared: the Vietnam war continues to claim innocent victims.
Nothing can erase the physical and psychological wounds of the war,
but, by providing limited benefits to affected children, the Agent
Orange Benefits Act of 1996 will allow us to heal some of the lingering
scars from Vietnam.
The NAS report also serves as a valuable reminder that the impact of
any war is felt decades beyond the final shots. Just as reproductive
disorders and birth defects in their children have been among Vietnam
veterans' greatest health concerns, health problems in their children
is of great concern to veterans who served in the Gulf war. We must be
prepared to learn from the scientific effort on agent orange and apply
these lessons to the effort to discover the true health effects of
environmental hazards on the men and women who served in the Gulf and
on their children. Based on the NAS report's findings related to spina
bifida in the children of Vietnam veterans,

[[Page S9301]]

the VA is establishing a reproductive outcomes research center to
investigate potential environmental hazards of military service. I look
forward to seeing those efforts come to fruition, and I am hopeful they
will help us provide answers to the many outstanding questions in this
area.
I applaud the President and Secretary Jesse Brown, along with my
colleagues who have been committed to this fight for years, for working
together to develop a proposal that adequately addresses the needs of
these children and their families, and for providing modest
compensation for a wrong that can never fully be righted.
With the passage of this legislation, we can begin to fulfill our
promise to these most innocent victims and their families. Vietnam
veterans' families have suffered for decades and now live with the pain
of knowing that their military service may have jeopardized the health
and welfare of their children. The very least we can do is ease their
burden by providing this limited assistance and care.
Mr. President, I ask unanimous consent that the text of the bill, a
summary of the bill, a letter of support from the administration, and a
table from the NAS report that explains the four-tiered classification
system for agent orange-related illnesses, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 2008

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. REFERENCES TO TITLE 38, UNITED STATES CODE.

Except as otherwise expressly provided, whenever in this
Act an amendment or repeal is expressed in terms of an
amendment or repeal is expressed in terms of an amendment to,
or repeal of, a section or other provision, the reference
shall be considered to be made to a section or other
provision of title 38, United States Code.

SEC. 2. BENEFITS FOR THE CHILDREN OF VIETNAM VETERANS WHO ARE
BORN WITH SPINA BIFIDA.

(a) Short Title.--This section may be cited as the ``Agent
Orange Benefits Act of 1996.''
(b) Establishment of New Chapter 18.--Part II is amended by
inserting after chapter 17 the following new chapter:

``CHAPTER 18--BENEFITS FOR THE CHILDREN OF VIETNAM VETERANS WHO ARE
BORN WITH SPINA BIFIDA

``Sec.
``1801. Purpose.
``1802. Definitions.
``1803. Health care.
``1804. Vocational training.
``1805. Monetary allowance.
``1806. Effective date of Awards.

SEC. ``1801. PURPOSE.

``The purpose of this chapter is to provide for the special
needs of certain children of Vietnam veterans who were born
with the birth defect spina bifida, possibly as the result of
the exposure of one or both parents to herbicides during
active service in the Republic of Vietnam during the Vietnam
era, through the provision of health care, vocational
training, and monetary benefits.

``SEC. 1802. DEFINITIONS.

``For the purposes of this chapter--
``(1) The term `child' means a natural child of a Vietnam
veteran, regardless of age or marital status, who was
conceived after the date on which the veteran first entered
the Republic of Vietnam during the Vietnam era.
``(2) The term `Vietnam veteran' means a veteran who,
during active military, naval, or air service, served in the
Republic of Vietnam during the Vietnam era.
``(3) The term `spina bifida' means all forms of spina
bifida other than spina bifida occulta.

``SEC. 1803. HEALTH CARE.

``(a) In accordance with regulations the Secretary shall
prescribe, the Secretary shall provide such health care under
this chapter as the Secretary determines is needed to a child
of a Vietnam veteran who is suffering from spina bifida, for
any disability associated with such condition.
``(b) The Secretary may provide health care under this
section directly or by contract or other arrangement with a
health care provider.
``(c) For the purposes of this section--
``(1) the term `health care' means home care, hospital
care, nursing home care, outpatient care, preventive care,
habilitative and rehabilitative care, case management, and
respite care, and includes the training of appropriate
members of a child's family or household in the care of the
child and provision of such pharmaceuticals, supplies,
equipment, devices, appliances, assistive technology, direct
transportation costs to and from approved sources of health
care authorized under this section, and other materials as
the Secretary determines to be necessary.
``(2) the term `health care provider' includes, but is not
limited to, specialized spina bifida clinics, health-care
plans, insurers, organizations, institutions, or any other
entity or individual who furnishes health care services that
the Secretary determines are covered under this section.
``(3) the term `home care' means outpatient care,
habilitative and rehabilitative care, preventive health
services, and health-related services furnished to an
individual in the individual's home or other place of
residence.
``(4) the term `hospital care' means care and treatment for
a disability furnished to an individual who has been admitted
to a hospital as a patient.
``(5) the term `nursing home care' means care and treatment
for a disability furnished to an individual who has been
admitted to a nursing home as a resident.
``(6) the term `outpatient care' means care and treatment
of a disability, and preventive health services, furnished to
an individual other than hospital care or nursing home care.
``(7) the term `preventive care' means care and treatment
furnished to prevent disability or illness, including
periodic examinations, immunizations, patient health
education, and such other services as the Secretary
determines are necessary to provide effective and economical
preventive health care.
``(8) the term `habilitative and rehabilitative care' means
such professional, counseling, and guidance services and
treatment programs (other than vocational training under
section 1804 of this title) as are necessary to develop,
maintain, or restore, to the maximum extent, the functioning
of a disabled person.
``(9) the term `respite care' means care furnished on a
intermittent basis in a Department facility for a limited
period to an individual who resides primarily in a private
residence when such care will help the individual to continue
residing in such private residence.

``SEC. 1804. VOCATIONAL TRAINING.

``(a) Pursuant to such regulations as the Secretary may
prescribe, the Secretary may provide vocational training
under this section to a child of a Vietnam veteran who is
suffering from spina bifida if the Secretary determines that
the achievement of a vocational goal by such child is
reasonably feasible.
``(b)(1) If a child elects to pursue a program of
vocational training under this section, the program shall be
designed in consultation with the child in order to meet the
child's individual needs and shall be set forth in an
individualized written plan of vocational rehabilitation.
``(2)(A) Subject to subparagraph (B) of this paragraph, a
vocational training program under this subsection shall
consist of such vocationally oriented services and
assistance, including such placement and post-placement
services and personal and work adjustment training, as
the Secretary determines are necessary to enable the child
to prepare for and participate in vocational training or
employment.
``(B) A vocational training program under this subsection--
``(i) may not exceed 24 months unless, based on a
determination by the Secretary that an extension is necessary
in order for the child to achieve a vocational goal
identified (before the end of the first 24 months of such
program) in the written plan formulated for the child, the
Secretary grants an extension for a period not to exceed 24
months;
``(ii) may not include the provision of any loan or
subsistence allowance or any automobile adaptive equipment;
and
``(iii) may include a program of education at an
institution of higher learning only in a case in which the
Secretary determines that the program involved is
predominantly vocational in content.
``(c)(1) A child who is pursuing a program of vocational
training under this section who is also eligible for
assistance under a program under chapter 35 of this title may
not receive assistance under both of such programs
concurrently but shall elect (in such form and manner as the
Secretary may prescribe) under which program to receive
assistance.
``(2) The aggregate period for which a child may receive
assistance under this section and chapter 35 of this title
may not exceed 48 months (or the part-time equivalent
thereof).

``SEC. 1805. MONETARY ALLOWANCE.

``(a) The Secretary shall pay a monthly allowance under
this chapter to any child of a Vietnam veteran for disability
resulting from spina bifida suffered by such child.
``(b) The amount of the allowance paid under this section
shall be based on the degree of disability suffered by a
child as determined in accordance with such schedule for
rating disabilities resulting from spina bifida as the
Secretary may prescribe. The Secretary shall, in prescribing
the rating schedule for the purposes of this section,
establish three levels of disability upon which the amount of
the allowance provided by this section shall be based. The
allowance shall be $200 per month for the lowest level of
disability prescribed, $700 per month for the intermediate
level of disability prescribed, and $1,200 per month for
the highest level of disability prescribed.
``(c)(1) Whenever there is an increase in benefit amounts
payable under title II of the Social Security Act (42 U.S.C.
401 et seq.) as a result of a determination under section

[[Page S9302]]

215(i) of such Act (42 U.S.C. 415(i)), the Secretary shall,
effective on the date of such increase in benefit amounts,
increase each rate of allowance under this section, as such
rates were in effect immediately prior to the date of such
increase in benefits payable under title II of the Social
Security Act, by the same percentage as the percentage by
which such benefit amounts are increased.
``(2) Whenever there is an increase in the rates of the
allowance payable under this section, the Secretary shall
publish such rates in the Federal Register.
``(3) Whenever such rates are so increased, the Secretary
may round such rates in such manner as the Secretary
considers equitable and appropriate for ease of
administration.
``(d) Notwithstanding any other provision of law, receipt
by a child of an allowance under this section shall not
impair, infringe, or otherwise affect the right of such child
to receive any other benefit to which the child may otherwise
be entitled under any law administered by the Secretary, nor
shall such receipt impair, infringe, or otherwise affect the
right of any individual to receive any benefit to which he or
she is entitled under any law administered by the Secretary
that is based on the child's relationship to such individual.
``(e) Notwithstanding any other provision of law, the
allowance paid to a child under this section shall not be
considered income or resources in determining eligibility for
or the amount of benefits under any Federal or federally
assisted program.

``SEC. 1806. EFFECTIVE DATE OF AWARDS.

``Effective date for an award for benefits under this
chapter shall be fixed in accordance with the facts found,
but shall not be earlier than the date of receipt of
application therefor.''.
(c) Effective Date.--The amendments made by this section
shall become effective on October 1, 1996.
(d) Clerical Amendment.--The tables of chapters before part
I and at the beginning of part II are each amended by
inserting after the item referring to chapter 17 the
following new item:

``18. Benefits for children of Vietnam veterans who are born with spina
bifida..................................................1801''.....

SEC. 3. CLARIFICATION OF ENTITLEMENT FOR BENEFITS FOR
DISABILITY RESULTING FROM TREATMENT OR
VOCATIONAL SERVICES PROVIDED BY DEPARTMENT OF
VETERANS AFFAIRS.

(a) Section 1151 is amended--
(1) by striking out the first sentence and inserting in
lieu thereof the following:
``(a) Compensation under this chapter and dependency and
indemnity compensation under chapter 13 of this title shall
be awarded for qualifying additional disability to or death
of a veteran in the same manner as if such additional
disability or death were service-connected. For purposes of
this section, additional disability or death is qualifying
only if it was not the result of the veteran's willful
misconduct and--
``(1) it was caused by hospital care, medical or surgical
treatment, or examination furnished the veteran under any law
administered by the Secretary, either by a Department
employee or in a Department facility as defined in section
1701(3)(A) of this title, where the additional disability or
death proximately resulted--
``(A) from carelessness, negligence, lack of proper skill,
error in judgment, or similar instance of fault on the part
of the Department in furnishing the hospital care, medical or
surgical treatment, or examination; or
``(B) from an event not reasonably foreseeable; or
``(2) it was incurred as a proximate result of the
provision of training and rehabilitation services by the
Secretary (including by a service-provider used by the
Secretary for such purpose under section 3115 of this title)
as part of an approved rehabilitation program under chapter
31 of this title.''; and
(2) in the second sentence--
(A) by redesignating that sentence as subsection (b);
(B) by striking out ``, aggravation,'' both places it
appears; and
(C) by striking out ``sentence'' and substituting in lieu
thereof ``subsection''.
(b) The amendments made by subsection (a) shall govern all
administrative and judicial determinations of eligibility for
benefits under section 1151 of title 38, United States Code,
made with respect to claims filed on or after the date of
enactment of this Act, including those based on original
applications and applications seeking to reopen, revise,
reconsider, or otherwise readjudicate on any basis claims for
benefits under section 1151 of that title or predecessor
provisions of law.
____

Agent Orange Benefits for Vietnam Veterans' Children Suffering From
Spina Bifida

The Agent Orange Act of 1996 would extend health care and
related benefits, including a monthly monetary allowance, to
Vietnam veterans' children suffering from spina bifida--a
serious neural tube birth defect that requires life-long
care--provided the children were conceived after the veterans
began their service in Vietnam.

background

A March National Academy of Sciences (NAS) report cited new
evidence that supports a link between exposure to Agent
Orange and the occurrence of spina bifida in children of
veterans who served in Vietnam. This report was required by
the Agent Orange Act of 1991.
Since 1985, Vietnam veterans have been eligible for free VA
health care for conditions believed to be related to exposure
to Agent Orange. Veterans' disability compensation for
several Agent Orange-related illnesses--including non-
Hodgkin's lymphoma, soft-tissue sarcoma, Hodgkin's disease,
chloracne, respiratory cancers, and multiple myeloma--has
been awarded as a result of either congressional or VA
action, some of which was based on a 1993 NAS report. Earlier
this year, Secretary Brown and the President, in response to
the March NAS report, extended service-connected benefits to
veterans suffering from prostate cancer and acute and sub-
acute peripheral neuropathy.
Reproductive disorders and birth defects in their children
have been among veterans' greatest Agent Orange-related
health concerns. This legislation is necessary because, while
the VA has recommended that spina bifida in veterans'
offspring be service-connected, the VA does not currently
have the authority to extend health care or other benefits to
children of veterans.

cost

CBO has not yet provided an estimate for this proposal.
However, costs would be offset by overturning the Gardner
case, which would limit the VA's liability for non-
malpractice-related injuries occurring in VA facilities. This
non-controversial provision was included in Democratic and
Republican budget proposals for FY 96. Excess savings would
be directed to deficit reduction.

role of the national academy of sciences

The Agent Orange Act of 1991 directed the VA to contract
with the National Academy of Sciences to conduct for 10 years
biennial, comprehensive evaluations of the scientific and
medical information regarding the health effects of exposure
to Agent Orange and other herbicides used in Vietnam.
The first report, ``Veterans and Agent Orange: Health
Effects of Herbicides Used in Vietnam,'' was published in
1993. It created the following categories to classify the
level of association between certain health conditions and
exposure to Agent Orange: Category I (``sufficient evidence
of an association''); category II (``limited/suggestive
evidence of an association''); category III (``inadequate/
insufficient evidence to determine whether an association
exists''); category IV (``limited/suggestive evidence of NO
association'').
Following the 1993 report, the VA began to compensate
Vietnam veterans suffering from three diseases in categories
I and II that had not been service-connected through previous
congressional or administrative action: porphyria cutanea
tarda, respiratory cancers, and multiple myeloma.
The 1996 update, which was issued in March, confirmed many
of the findings in the 1993 report, and found new evidence to
link spina bifida in veterans' children with exposure to
Agent Orange. The NAS panel placed ``spina bifida in
offspring'' in category II, supporting a connection between
birth defects and military service. The NAS report currently
places birth defects other than spina bifida in category III.
After reviewing the NAS report and other information, the
VA has recommended that all remaining conditions in
categories I and II, including spina bifida, be service-
connected.
____

The Secretary of Veterans Affairs,

Washington, DC, July 5, 1996.
Hon. Christopher S. (Kit) Bond,
Chairman, Subcommittee on VA, HUD, and Independent Agencies,
Committee on Appropriations, U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am pleased to share with you a copy of
legislation we provided earlier today to Senator Daschle.
This legislation, the ``Agent Orange Benefits Act of 1996,''
would provide benefits to certain children of Vietnam
veterans who are born with the birth defect spinal bifida.
Enacting this legislation is a Presidential priority.
Under Public Law 102-4, and with the benefit of a National
Academy of Sciences report, I determined that a positive
association exists between the exposure of Vietnam veterans
to herbicides (such as a Agent Orange) and spinal bifida in
their children. In approving this determination, the
President promised to submit ``an appropriate remedy'' for
these veterans' children. This legislation fulfills that
commitment. It provides for health care, vocational training,
and monthly monetary allowance for these children.
As set forth in the legislation, the Administration
proposes to offset the costs associated with these new
benefits with a savings proposal that would effectively
reverse the U.S. Supreme Court decision in Gardner v. Brown
which held that monthly VA disability compensation must be
paid for any additional disability or death attributable to
VA medical treatment even if VA was not negligent in
providing that care.
Enactment of this legislation is a top Presidential
priority. I strongly urge the Senate to include it in the
earliest appropriate legislative vehicle.
Thank you for your assistance in ensuring prompt and
immediate action on this important legislation.
The Office of Management and Budget has advised that there
is no objection from the standpoint of the Administration's
program to the presentation of this letter.
Sincerely,
Jesse Brown.
____

[[Page S9303]]

Executive Summary

TABLE 1-1--Updated Summary of findings in occupational, Environmental,
and Veterans Studies Regarding the Association Between Specific Health
problems and Exposure to Herbicides

Sufficient evidence of an association
Evidence is sufficient to conclude that there is a positive
association. That is, a positive association has been
observed between herbicides and the outcome in studies in
which chance, bias, and confounding could be ruled out with
reasonable confidence. For example, if several small studies
that are free from bias and confounding show an association
that is consistent in magnitude and direction, there may be
sufficient evidence for an association. There is sufficient
evidence of an association between exposure to herbicides and
the following health outcomes: Soft-tissue sarcoma; Non-
Hodgkin's lymphoma; Hodgkin's disease; Chlorance.
Limited/suggestive evidence of an association
Evidence is suggestive of an association between herbicides
and the outcome but is limited because chance, bias, and
confounding could not be ruled out with confidence. For
example, at least one high-quality study shows a positive
association, but the results of other studies are
inconsistent. There is limited/suggestive evidence of an
association between exposure to herbicides and the following
health outcomes: Respiratory cancers (lung, larynx, trachea);
Prostate cancer; Multiple myeloma; Acute and subacute
peripheral neuropathy (new disease category); Spina bifida
(new disease category); Porphyria cutanea tarda (category
change in 1996).
Inadequate/insufficient evidence to determine whether an
association exists
The available studies are of insufficient quality,
consistency, or statistical power to permit a conclusion
regarding the presence or absence of an association. For
example, studies fail to control for confounding, have
inadequate exposure assessment, or fail to address latency.
There is inadequate or insufficient evidence to determine
whether an association exists between exposure to herbicides
and the following health outcomes: Hepatobiliary cancers;
Nasal/nasopharyngeal cancer; Bone cancer; Female reproductive
cancers (cervical, uterine, ovarian); Breast cancer; Renal
cancer; Testicular cancer; Leukemia; spontaneous abortion;
Birth defects (other than spina bifida); Neonatal/infant
death and stillbirths; Low birthweight; Childhood cancer in
offspring; Abnormal sperm parameters and infertility;
cognitive and neuropsychiatric disorders; Motor/coordination
dysfunction; Chronic peripheral nervous system disorders;
Metabolic and digestive disorders (diabetes, changes in liver
enzymes, lipid abnormalities, ulcers); Immune system
disorders (immune suppression and autoimmunity); Circulatory
disorders; Respiratory disorders; Skin cancer (category
change in 1996).
Limited/suggestive evidence of no association
Several adequate studies, covering the full range of levels
of exposure that human beings are known to encounter, are
mutually consistent in not showing a positive association
between exposure to herbicides and the outcome at any level
of exposure. A conclusion of ``no association'' is inevitably
limited to the conditions, level of exposure, and length of
observation covered by the available studies. In addition,
the possibility of a very small elevation in risk at the
levels of exposure studied can never be excluded. There is
limited/suggestive evidence of no association between
exposure to herbicides and the following health outcomes:
Gastrointestinal tumors (stomach cancer, pancreatic cancer,
colon cancer, rectal cancer); Bladder cancer; Brain tumors.

Note: ``Herbicides'' refers to the major herbicides used in
Vietnam: 2,4-D (2,4-dichlorophenoxyacetic acid); 2,4,5-T
(2,4,5-trichlorophenoxyacetic acid) and its contaminant TCDD
(2,3,7,8-tetrachlorodibenzo-p-dioxin); cacodylic acid; and
picloram. The evidence regarding association is drawn from
occupational and other studies in which subjects were exposed
to a variety of herbicides and herbicide components.

Mr. BYRD. Mr. President, I am proud to cosponsor the legislation
introduced by the able Democratic leader, Senator Daschle, which
provides health care and assistance to the children of Vietnam veterans
who suffer from spina bifida. This legislation provides the needed
authority for the Department of Veterans Affairs to treat these
children for their service-connected disabilities arising from their
father's exposure to agent orange during the Vietnam conflict. This is
an unprecedented but appropriate action, since scientific research is
now sufficiently sophisticated to allow us to understand the effects of
toxic exposures on ourselves and on future generations.
As a result of the Agent Orange Act of 1991, the Department of
Veterans Affairs and the National Academy of Sciences have at regular
intervals reviewed the ongoing research on Agent Orange exposure. The
report update issued this spring found ``limited/suggestive evidence''
linking the birth defect spina bifida to agent orange exposure. The
report notes that all three epidemiologic studies reviewed suggest an
association between herbicide exposure and increased risk of spina
bifida in offspring. It further notes that in contrast to most other
diseases, for which the strongest data have been from occupationally
exposed workers, these studies focused on Vietnam veterans. All the
studies were judged to be of relatively high quality, although they did
suffer from some methodologic limitations.
On the basis of this finding, Secretary Jesse Brown recommended that
a service connection be granted to Vietnam veterans' children with
spina bifida. It is the right decision, and I applaud him for it. The
research and the legislation are long overdue for families that have
been struggling for some twenty years. Some one has observed that
``procrastination is the thief of time.'' These children and their
families have already lost time, lost long years of doubt and
wondering, of financial hardship that they bore alone because the
government procrastinated in investigating and acknowledging its role
in this tragedy. The legislation introduced today by Senator Daschle
attempts to correct that injustice, and I commend him for it. The poet
Edward Young (1683-1796) has said: ``Be wise today; 'tis madness to
defer.'' Support this legislation, take responsibility for the tragic
aftermath of our involvement in Vietnam, and take care of these
children.
Mr. KERRY. Mr. President, I am pleased to join my distinguished
colleague from South Dakota, Senator Daschle, in cosponsoring the Agent
Orange Benefits Act of 1996. This bill takes another crucial step
forward in repaying our debt to those who have served their country and
are still suffering as a result of their service in Vietnam many years
ago. In May, President Clinton announced that legislation would be
proposed to aid Vietnam veterans' children who suffer from the disease
spina bifida. This bill fulfills that commitment by recognizing and
accepting natural responsibility for one of the serious health care
needs of veterans' families that stem from the tragic effects of agent
orange.
Senator Daschle and I and many others have worked for the past decade
to try to bring to a fair and just resolution the questions surrounding
agent orange and the effects it has had on the men and women who
faithfully served this country. I know that there is still controversy
about the effects of agent orange. There may always be controversy,
just as there may always be controversy about the Vietnam war itself.
But we must set aside the controversy--or put it behind us--to enable
suffering children to receive the care and treatment they need when
that suffering can be followed back to a service person's exposure to
agent orange.
After years of hard work, I believe we have reached an acceptable
consensus on the effects of agent orange through numerous studies--and
independent scientific reviews of the many studies--which have been
made on the effects of this dangerous chemical that contains deadly
dioxin. I might add that it has been 30 years since agent orange was
sprayed in Vietnam and we must stop debating over the bias of each
individual analyzing the information. As I said back in May of 1988,
``It is offensive to veterans to tell them that there is not enough
`scientific evidence' to justify compensation * * * The evidence is in
their own bodies, and even worse, in the bodies of their children.''
We have made great strides in reaching a consensus in some areas of
health care for Vietnam veterans. Since 1985, Vietnam veterans have
been eligible for free health care from the Veterans Administration for
conditions that are related to exposure to agent orange. Veterans'
disability compensation has been awarded to veterans affected by
several agent orange-related illnesses including non-Hodgkins lymphoma,
soft tissue sarcoma, Hodgkin's disease, chloracne, respiratory cancers,
multiple myeloma, and, most recently, prostate cancer and acute and
subacute peripheral neuropathy.
Today, Mr. President, we are addressing a particularly heinous effect
of agent orange--an effect that unfortunately will carry the legacy of
the Vietnam war to yet another generation. The bill we are introducing
today would extend health care and related

[[Page S9304]]

benefits to children of Vietnam veterans who suffer from spina bifida,
a serious neural tube birth defect that requires life-long care--
provided, of course, the children were conceived after the veterans
began their service in Vietnam.
The National Academy of Sciences released a report in March of this
year, citing new evidence supporting the link between exposure to agent
orange and the occurrence of spina bifida in children of veterans who
served in Vietnam. This report, Mr. President, warrants our action.
Both the President and the Secretary of Veterans Affairs, Jesse
Brown, have asked that spina bifida in veterans' offspring be
considered service connected. However, the VA currently does not have
the authority to extend the health care and other related benefits to
these children that they so greatly need. This bill will grant the VA
the necessary authority to finally start providing needed care to these
children who are suffering.
Mr. President, these are children whose misery stems from physical
damage caused to one of their parents who was fighting for this country
in Vietnam. We should do no less than provide them with the care and
treatment they need. We must not make some of the children of our
Vietnam veterans the last victims of the Vietnam war. I urge my
colleagues to support this bill.
______

By Mr. ASHCROFT:
S.J. Res. 58. A joint resolution proposing an amendment to the
Constitution of the United States relative to granting power to the
States to propose constitutional amendments; to the Committee on the
Judiciary.

state-initiated constitutional amendment joint resolution

Mr. ASHCROFT. Mr. President, I rise this afternoon to talk about
first principles, about fundamental truths, about a battle that helped
give birth to a nation. The amendment I have sent to the desk
represents an effort to restore the federal system conceived by the
Framers over two centuries ago by giving the States the capacity to
initiate constitutional reforms.
In considering my remarks earlier this morning, I was reminded of a
trip my family and I made several years ago when I was Governor of the
State of Missouri. In 1989, we were extended an opportunity to visit
the site where the Continental Army, led by Gen. Atemas Ward, fought to
seize Bunker Hill on the Charlestown peninsula.
It was a moving experience. One cannot help but recall the monument,
dedicated by Daniel Webster, that stands as a tribute to the lives that
were lost. I recommend the trip to both Members and the viewing
audience alike.
I must confess, however, that the expansive field you will find fails
to fully capture the raw carnage that visited Bunker Hill in June of
1775. Close to 2,000 lives were lost in less than 2 hours. And, while
General Howe's regulars were masters of the peninsula at the end of the
day, the casualties they sustained were more than twice that of the
American militia.
Historians, Mr. President, have come to record Bunker Hill as a
bloody if indecisive contest, an early salvo in a conflict which Dr.
Jonathan Rossie has characterized as a ``glorious cause.'' Glorious, if
warfare can be called that, because the issue that animated the
colonists that day was freedom, for themselves and generations yet to
come; God, courage, and posterity were their invisible allies.
And as I reflect on those events, I cannot help but wonder what has
become of the first principles for which our forefathers fought? What
has become of the fundamental truths that compelled those great
patriots up that hill, bayonets flashing, voices shouting ``push on,
push on.''
For that battle outside of Boston helped give birth to a nation, a
constitutional republic that was the first of its kind. A system where,
as Madison suggested in ``Federalist'' No. 46, ``the federal and state
governments are in fact but different agents of the people, constituted
with different powers, and designed for different purposes.''
Unfortunately, Mr. President, Madison's vision is being lost.
Judicial activism, Federal intervention, and past constitutional
reforms have led to a gradual erosion of State power. In particular,
the passage of the 16th and 17th amendments have had a disastrous
effect on the capacity of the States to check Federal expansion. The
former, establishing the income tax, gave the central government a
virtually unlimited spending power, while the latter, providing for the
direct election of Senators, worked to undermine the Senate's
contemplated role as the protector of State autonomy.
One of the single, greatest challenges we face as a country and as a
Congress, is addressing the constitutional imbalance that has arisen
from the convergence of these trends. Allowing the States to initiate
amendments on issues ranging from a balanced budget to congressional
term limits would do just that.
The operation of the proposed amendment is as simple as its intent is
clear. Whenever two-thirds of the States propose an amendment, in
identical terms, it is submitted to the Congress for review. If two-
thirds of both Houses fail to disapprove the amendment during the
session in which it is received, the proposal is then forwarded to the
States for ratification by three-fourths of the legislatures thereof.
If adopted, the proposed amendment would have tremendous value on
several different fronts. First, it would force the cold corridors of
power on the Potomac to respond to the will of the people--no more
mandates, no more deficits, no more careerist in the Congress.
Similarly, the amendment would allow the States to once again share the
constitutional agenda of the Nation. And finally, it would provide a
potential for addressing the problems of federalism in a context which
could conceivably augment State power.
In Gregory versus Ashcroft, Justice O'Connor opined that ``in the
tension between Federal and State power lies the promise of liberty.''
And so it does. I believe reconstituting the federal system of which
Madison wrote must become conservatives' new glorious cause. This
amendment is a measured, moderate step toward achieving that end. For
these reasons, Mr. President, I beg its adoption.

____________________