`(D) 1991 FEE SCHEDULES- For radiologist services (other than p
ortable X-ray services) furnished under this part during 1991, the conversion fa
ctors used in a locality under this subsection shall be determined as follows:
`(i) NATIONAL WEIGHTED AVERAGE CONVERSION FACTOR- The Secre
tary shall estimate the national weighted average of the conversion factors used
under this subsection for services furnished during 1990 beginning on April 1,
using the best available data. In computing the national weighted average in the
previous sentence, the conversion factor in each locality shall first be deflat
ed by the sum specified in clause (iv).
`(ii) REDUCED NATIONAL WEIGHTED AVERAGE- The national weigh
ted average estimated under clause (i) shall be reduced by 11 percent.
`(iii) GEOGRAPHIC INDICES-
`(I) 1990 LOCALITY INDEX RELATIVE TO NATIONAL AVERAGE-
The Secretary shall establish an index which reflects, for each locality, the ra
tio of the conversion factor used in the locality under this subsection to the n
ational weighted average estimated under clause (i).
`(II) FEE SCHEDULE GEOGRAPHIC INDEX- The Secretary shal
l establish an index value, for each locality, equal to the geographic adjustmen
t factor which would be established for the locality under section 1848(e)(2) if
--
`(a) the work, overhead, and malpractice geographic practice cost i
ndices contained in Addendum C to the Model Fee Schedule for Physicians' Service
s (published on September 4, 1990, 55 Federal Register pp. 36238-36243) were use
d as the geographic physician work adjustment factor value, the geographic cost-
of-practice index value, and the geographic malpractice index value, respectivel
y, and
`(b) the proportions of the total relative value for the work compo
nent, practice expense component, and the malpractice component were the work, o
verhead, and malpractice percents, respectively, specified for the specialty of
radiology in Table 2.1 of such Model Fee Schedule (55 F.R. 36188).
`(iv) LOCAL ADJUSTMENT- Subject to clause (v), the conversi
on factor to be applied in a locality is the national weighted average conversio
n factor (estimated under clause (i)), reduced under clause (ii), multiplied by
the sum of--
`(I) 3/4 of the index value established under clause
(iii)(I) for the locality, and
`(II) 1/4 of the index value established under clause
(iii)(II) for the locality.
`(v) MAXIMUM REDUCTION- The conversion factor to be applied
to a locality under this subparagraph shall not be less than 92 percent of the
conversion factor applied in the locality under subparagraph (C).'.
(b) CONTINUING PHASE-IN OF GEOGRAPHIC ADJUSTMENT- Section 1848(e)(2) of
such Act (42 U.S.C. 1395w-4(e)(2)) is amended by adding at the end the followin
g: `In the case of radiology services described in subsection (b)(2)(A), the geo
graphic adjustment factor for--
`(A) 1992, shall be 1/2 of the index value established under
section 1834(b)(4)(D)(iii)(I) for the locality plus 1/2 of the geographic adju
stment factor determined under the previous sentence, and
`(B) 1993, shall be 1/4 of the index value established under
section 1834(b)(4)(D)(iii)(I) for the locality plus 3/4 of the geographic adju
stment factor determined under the previous sentence.'.
(c) NONAPPLICATION OF COMPARABILITY PROVISIONS- Section 1834(b)(3) of s
uch Act (42 U.S.C. 1395m(b)(3)) is amended--
(1) by striking `and' at the end of subparagraph (A),
(2) by striking the period at the end of subparagraph (B) and inser
ting `, and', and
(3) by adding at the end the following new subparagraph:
`(C) shall not apply section 1842(b)(3)(B) insofar as it relate
s to requiring carriers to restrict payment to the charge applicable, for a comp
arable service and under comparable circumstances, to policyholders and subscrib
ers of the carrier.'.
(d) USE OF LOCALITIES- Section 1834(b)(1)(B) of such Act (42 U.S.C. 139
5m(b)(1)(B)) is amended by inserting `locality,' after `statewide,'.
(e) CONTINUATION OF SPECIAL RULE FOR NUCLEAR MEDICINE PHYSICIANS- Secti
on 6105(b) of the Omnibus Budget Reconciliation Act of 1989 is amended by striki
ng all that follows `Social Security Act' the second place it appears and insert
ing the following: `beginning April 1, 1990, and ending December 31, 1991, there
shall be substituted for the fee schedule otherwise applicable a fee schedule b
ased 1/3 on the fee schedule computed under such section (without regard to th
is subsection) and 2/3 on 101 percent of the 1988 prevailing charge for such s
ervices.'.
(f) EXTENSION OF SPLIT BILLING RULE FOR INTERVENTIONAL RADIOLOGISTS- Se
ction 6105(c) of the Omnibus Budget Reconciliation Act of 1989 is amended by ins
erting `or 1991' after `1990' each place it appears.
(1) Except as otherwise provided, the amendments made by this secti
on shall apply to services furnished on or after January 1, 1991.
(2) The amendment made by subsection (d) shall apply to services pe
rformed on or after April 1, 1989.
SEC. 4003. ANESTHESIA SERVICES.
(a) REDUCTION IN FEE SCHEDULE- Section 1842(q)(1) of the Social Securit
y Act (42 U.S.C. 1395u(q)(1)) is amended--
(1) by inserting `(A)' after `(q)(1)', and
(2) by adding at the end the following new subparagraph:
`(B) For physician anesthesia services furnished under this part during
1991, the conversion factor used in a locality under this subsection shall be d
etermined as follows:
`(i) The Secretary shall estimate the national weighted average of
the conversion factors used under this subsection for services furnished during
1990 beginning on April 1, using the best available data. In computing the natio
nal weighted average in the previous sentence, the conversion factor in each loc
ality shall first be deflated by the sum specified in clause (iv).
`(ii) The national weighted average estimated under clause (i) shal
l be reduced by 7 percent.
`(iii)(I) The Secretary shall establish an index which reflects, fo
r each locality, the ratio of the conversion factor used in the locality under t
his subsection for services furnished under this part during 1990 beginning on A
pril 1 to the national weighted average estimated under clause (i).
`(II) The Secretary shall establish an index value, for each locali
ty, equal to the geographic adjustment factor which would be established for the
locality under section 1848(e)(2) if--
`(a) the work, overhead, and malpractice geographic practice co
st indices contained in Addendum C to the Model Fee Schedule for Physicians' Ser
vices (published on September 4, 1990, 55 Federal Register pp. 36238-36243) were
used as the geographic physician work adjustment factor value, the geographic c
ost-of-practice index value, and the geographic malpractice index value, respect
ively, and
`(b) the proportions of the total relative value for the work c
omponent, practice expense component, and the malpractice component were 55.9 pe
rcent, 33.4 percent, and 10.7 percent, respectively.
`(iv) Subject to clause (v), the conversion factor to be applied in
a locality is the national weighted average conversion factor (estimated under
clause (i)) reduced under clause (ii) multiplied by the sum of--
`(I) 1/2 of the index value established under clause (iii)(I)
for the locality, and
`(II) 1/2 of the index value established under clause (iii)(I
I).
`(v) The conversion factor to be applied to a locality under this s
ubparagraph shall not be less than 85 percent of the conversion factor applied i
n the locality during 1990 beginning on April 1.'.
(c) EXTENSION OF REDUCTION FOR SUPERVISION OF CONCURRENT SERVICES- Sect
ion 1842(b)(13) of such Act (42 U.S.C. 1395u(b)(13)) is amended by striking `199
1' each place it appears and inserting `1996'.
SEC. 4004. PHYSICIAN PATHOLOGY SERVICES.
(a) REDUCTION IN PAYMENTS FOR PHYSICIAN PATHOLOGY SERVICES- Subsection
(f) of section 1834 of the Social Security Act (42 U.S.C. 1395m) is amended to r
ead as follows:
`(f) REDUCTION IN PAYMENTS FOR PHYSICIAN PATHOLOGY SERVICES DURING FISC
AL YEAR 1991- For physician pathology services furnished under this part during
1991, the prevailing charges used in a locality under this part shall be 93 perc
ent of the prevailing charges used in the locality under this part in 1990 begin
ning on April 1, 1990.'.
(b) CONFORMING AMENDMENTS-
(1) Section 1833(a)(1)(J) of such Act (42 U.S.C. 1395l(a)(1)) is am
ended by striking `or physician pathology services' and by striking `or section
1834(f), respectively'.
(2) Section 1848(a)(1) of such Act (42 U.S.C. 1395w-4(a)(1)) is ame
nded by striking `or 1834(f)'.
(c) EFFECTIVE DATE- The amendments made by this section shall apply to
services furnished on or after January 1, 1991.
SEC. 4005. PREVAILING CHARGES FOR MISCELLANEOUS PROCEDURES.
Section 1842(b) of the Social Security Act (42 U.S.C. 1395u(b)) is amen
ded by adding at the end the following new paragraph:
`(16)(A) In determining the reasonable charge for physicians' services
described in subparagraph (B) furnished during 1991, the prevailing charge other
wise recognized for a locality shall be reduced by 2 percent, or, in the case of
surgical procedures which are paid for under this part on a global basis (inclu
ding preoperative and postoperative services), 4 percent.
`(B) For purposes of this subparagraph, the physcians' service specifie
d in this subparagraph are all physicians' services except the following:
`(i) Radiology, anesthesia, and physician pathology services, and p
hysicians' services specified in clause (i) of paragraph (14)(C).
`(ii) Primary care services (specified in subsection (i)(4)), hospi
tal inpatient medical services, consulations, preventive medicine visits, emerge
ncy care facility services, and critical care services.
`(iii) The procedure codes specified in the Joint Explanatory State
ment of the Committee of Conference submitted with the Conference Report to acco
mpany H.R. (the `Omnibus Budget Reconciliation Act of 1990') for tendon sh
eath injections and small joint arthrocentesis, femoral fracture and trochanteri
c fracture treatments, endotracheal intubation, thoracentesis, thoracostomy, and
transurerethral fulguration and resection.'.
SEC. 4006. UPDATE FOR PHYSICIANS' SERVICES.
(a) PERCENTAGE INCREASE IN MEI FOR 1991 DURING 1991- Section 1842(b)(4)
(E) of the Social Security Act (42 U.S.C. 1395u(b)(4)(E)) is amended by adding a
t the end the following new clause:
`(v) For purposes of this part for items and services furnished in 1991
, the percentage increase in the MEI is--
`(I) 0 percent for services (other than primary care services), and
`(II) such percentage increase in the MEI (as defined in subsection
(i)(3)) as would be otherwise determined for primary care services (as defined
in subsection (i)(4)).'.
(b) INCREASE IN PREVAILING CHARGE FLOOR FOR PRIMARY CARE SERVICES-
(1) IN GENERAL- Section 1842(b)(4)(A)(vi) of such Act (42 U.S.C. 13
95u(b)(4)(A)(vi)) is amended by striking `50 percent' and inserting `75 percent'
.
(2) USE IN TRANSITION TO FULL FEE SCHEDULE- Section 1848(a)(2)(D) o
f such Act (42 U.S.C. 1395w-4(a)(2)(D)) is amended by adding at the end the foll
owing new clause:
`(iii) APPLICATION TO PRIMARY CHARGE FLOOR- In the case of
services described in section 1842(b)(4)(A)(vi), the adjusted historical payment
basis shall be determined as if `50 percent' were substituted for `75 percent'
in such section; except that in no case shall the application of this clause res
ult in the establishment of a fee schedule amount which is less than the prevail
ing charge level determined under such section for services furnished in 1991.'<
/ul>
(c) EFFECTIVE DATE- The amendments made by this section shall apply to
services furnished on or after January 1, 1991.
SEC. 4007. NEW PHYSICIANS AND OTHER NEW HEALTH CARE PRACTITIONERS.
(a) IN GENERAL- Subparagraph (F) of section 1842(b)(4) of the Social Se
curity Act (42 U.S.C. 1395u(b)(4)) is amended to read as follows:
`(F)(i) In the case of physicians' services and professional services o
f a health care practitioner (other than primary care services and other than se
rvices furnished in a rural area (as defined in section 1886(d)(2)(D)) that is d
esignated, under section 332(a)(1)(A) of the Public Health Service Act, as a hea
lth manpower shortage area) furnished during the physician's or practitioner's f
irst through fourth years of practice (if payment for those services is made sep
arately under this part and on other than a cost-related basis), the prevailing
charge or fee schedule amount to be applied under this part shall be 80 percent
for the first year of practice, 85 percent for the second year of practice, 90 p
ercent for the third year of practice, and 95 percent for the fourth year of pra
ctice, of the prevailing charge or fee schedule amount for that service under th
e other provisions of this part.
`(ii) For purposes of clause (i):
`(I) The term `health care practitioner' means a physician assistan
t, certified nurse-midwife, qualified psychologist, nurse practitioner, clinical
social worker, physical therapist, occupational therapist, respiratory therapis
t, certified registered nurse anesthetist, or any other practitioner as may be s
pecified by the Secretary.
`(II) The term `first year of practice' means, with respect to a ph
ysician or practitioner, the first year during the first 6 months of which the p
hysician or practitioner furnishes professional services for which payment is ma
de under this part, and includes any period before such year.
`(III) The terms `second year of practice', `third year of practice
', and `fourth year of practice' mean the second, third, and fourth years, respe
ctively, following the first year of practice.'.
(b) CONFORMING AMENDMENT- Section 1848(a)(1)(B) of such Act (42 U.S.C.
1395w-4(a)(1)(B)) is amended by inserting `and section 1842(b)(4)(F)' after `of
this section'.
(c) CONFORMING ADJUSTMENT IN CONVERSION FACTOR COMPUTATION- In computin
g the conversion factor under section 1848(d)(1)(B) for 1992, the Secretary of H
ealth and Human Services shall determine the estimated aggregate amount of payme
nts under part B for physicians' services in 1991 assuming that the amendments m
ade by this section (notwithstanding subsection (d)) applied to all services fur
nished during such year.
(d) EFFECTIVE DATE- The amendments made by this section apply to servic
es furnished after 1990, except that--
(1) the provisions concerning the third and fourth years of practic
e apply only to physicians' services furnished after 1991 and 1992, respectively
, and
(2) the provisions concerning the second, third, and fourth years o
f practice apply only to services of a health care practitioner furnished after
1991, 1992, and 1993, respectively.
SEC. 4008. TECHNICAL COMPONENTS OF CERTAIN DIAGNOSTIC TESTS.
(a) IN GENERAL- Section 1842(b) of the Social Security Act (42 U.S.C. 1
395u(b)), as amended by sections 4005, is further amended by adding at the end t
he following new paragraph:
`(17) With respect to payment under this part for the technical (as dis
tinct from professional) component of diagnostic tests (other than clinical diag
nostic laboratory tests and radiology services), the reasonable charge (or other
payment basis) may not exceed the national median of such charges (or payment b
ases) for such tests or services.'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply to
tests and services furnished on or after January 1, 1991.
SEC. 4009. RECIPROCAL BILLING ARRANGEMENTS.
(a) IN GENERAL- The first sentence of section 1842(b)(6) of the Social
Security Act (42 U.S.C. 1395u(b)(6)) is amended--
(1) by striking `and' before `(C)', and
(2) by inserting before the period at the end the following: `, and
(D) payment may be made to a physician who arranges for visit services (includi
ng emergency visits and related services) to be provided to an individual by a s
econd physician on an occasional, reciprocal basis if (i) the first physician is
unavailable to provide the visit services, (ii) the individual has arranged or
seeks to receive the visit services from the first physician, (iii) the claim fo
rm submitted to the carrier includes the second physician's unique identifier (p
rovided under the system established under subsection (r)) and indicates that th
e claim is for such a `covered visit service (and related services)', and (iv) t
he visit services are not provided by the second physician over a continuous per
iod of longer than 30 days'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply to
services furnished on or after the first day of the first month beginning more
than 60 days after the date of the enactment of this Act.
SEC. 4010. AGGREGATION RULE FOR CLAIMS FOR SIMILAR PHYSICIANS' SERVICES.<
/h3>
(a) IN GENERAL- The second sentence of section 1869(b)(2) of the Social
Security Act (42 U.S.C. 1395ff(b)(2)) is amended--
(1) by inserting `for services furnished during the same 12-month p
eriod' after `two or more claims',
(2) by inserting `(i)' after `if',
(3) by striking `or involve' and inserting `, (ii) the claims invol
ve', and
(4) by inserting before the period at the end the following: `by th
e same entity, or (iii) the claims involve common issues of law and fact arising
from physicians' services furnished in the same fee schedule area (as defined i
n section 1848(j)(2)) to two or more individuals by two or more physicians and t
he aggregate amount in controversy is at least $1,000 (in the case of a hearing
under paragraph (1)(C) or (1)(D)) or $2,500 (in the case of judicial review)'.
(b) EFFECTIVE DATE- The amendments made by subsection (a) shall apply t
o physicians' services furnished on or after the first day of the first month be
ginning more than 60 days after the date of the enactment of this Act.
SEC. 4011. PRACTICING PHYSICIANS ADVISORY COUNCIL.
Title XVIII of the Social Security Act is amended by inserting after se
ction 1867 the following new section:
`PRACTICING PHYSICIANS ADVISORY COUNCIL
`SEC. 1868. (a) The Secretary shall appoint, based upon nominations sub
mitted by medical organizations representing physicians, a Practicing Physicians
Advisory Council (in this section referred to as the `Council') to be composed
of 15 physicians, each of whom has submitted at least 250 claims for physicians'
services under this title in the previous year. At least 11 of the members of t
he Council shall be physicians described in section 1861(r)(1) and the members o
f the Council shall include both participating and nonparticipating physicians a
nd physicians practicing in rural areas and underserved urban areas.
`(b) The Secretary shall consult with the Council concerning proposed c
hanges in regulations and carrier manual instructions. To the extent feasible an
d consistent with statutory deadlines, such consultation shall occur before the
publication of such proposed changes.
`(c) The Council shall meet once during each calendar quarter.
`(d) Members of the Council shall be entitled to receive reimbursement
of expenses and per diem in lieu of subsistence in the same manner as other memb
ers of advisory councils appointed by the Secretary are provided such reimbursem
ent and per diem under this title.'.
SEC. 4012. RELEASE OF MEDICAL REVIEW SCREENS AND ASSOCIATED SCREENING PAR
AMETERS.
(a) CARRIERS- Section 1842(b)(3) of the Social Security Act (42 U.S.C.
1395u(b)(3)), as amended by section [4041(a)(3)], is amended--
(1) by striking `and' at the end of subparagraph (H),
(2) by adding `and' at the end of subparagraph (I), and
(3) by inserting after subparagraph (I) the following new subparagr
aph:
`(J) if it makes determinations or payments with respect to physici
ans' services, before sending a notice of denial of payment under this part for
such services by reason of section 1862(a)(1) because a service otherwise covere
d under this title is not reasonable and necessary under the standards described
in this section, the carrier has made available to the public the medical revie
w screens, the associated screening parameters, and the criteria upon which the
denial of payment may be made;'.
(b) EFFECTIVE DATE- The amendments made by this section shall apply to
notices of denial sent on or after January 1, 1991.
SEC. 4013. TECHNICAL CORRECTIONS.
(a) OVERVALUED PROCEDURES-
(1) Section 1842(b)(14) of the Social Security Act (42 U.S.C. 1395u
(b)(14)) is amended--
(A) in subparagraph (B)(iii)(I), by striking `practice expense
ratio for the service (specified in table #1 in the Joint Explanatory Statement
referred to in subparagraph (C)(i))' and inserting `practice component percent (
referred to as practice expense ratio), divided by 100, specified in appendix A
(pages 187 through 194) of the Report of the Medicare and Medicaid Health Budge
t Reconciliation Amendments of 1989, prepared by the Subcommittee on Health and
the Environment of the Committee on Energy and Commerce, House of Representative
s, (Committee Print 101-M, 101st Congress, 1st Session) for the service';
(B) in subparagraph (B)(iii)(II), by striking `practice expense
ratio' and inserting `practice component percent, divided by 100';
(C) in subparagraph (C)(i), by striking `physicians' services s
pecified in table #2 in the Joint Explanatory Statement of the Committee of Conf
erence submitted with the Conference Report to accompany H.R. 3299 (the `Omnibus
Budget Reconciliation Act of 1989'), 101st Congress,' and inserting `procedures
specified (by code and description) in the Overvalued Procedures List for Finan
ce Committee, Revised September 20, 1989, prepared by the Physician Payment Revi
ew Commission';
(D) in subparagraph (C)(iii), by striking `The `percent change'
specified in this clause, for a physicians' service specified in clause (i), is
the percent change specified for the service in table #2 in the Joint Explanato
ry Statement' and inserting `The `percentage change' specified in this clause, f
or a physicians' service specified in clause (i), is the percent difference (but
expressed as a positive number) specified for the service in the list'; and
(E) in subparagraph (C)(iv), by striking `such value specified
for the locality in table #3 in the Joint Explanatory Statement referred to in c
lause (i)' and inserting `the Geographic Overhead Costs Index specified for the
locality in table 1 of the September 1989 Supplement to the Geographic Medicare
Economic Index: Alternative Approaches (prepared by the Urban Institute and the
Center for Health Economics Research)'.
(2) Section 1842(b)(4)(E)(iv)(I) of such Act (42 U.S.C. 1395u(b)(4)
(E)(iv)(I)) is amended by striking `Table #2' and all that follows through `101s
t Congress' and inserting `the list referred to in paragraph (14)(C)(i)'.
(3) The amendments made by paragraphs (1) and (2) apply to services
furnished after March 1990.
(b) MISCELLANEOUS FEE SCHEDULE CORRECTIONS-
(1) CHANGES IN SECTION 1848- Section 1848 of the Social Security Ac
t (42 U.S.C. 1395w-4) is amended--
(A) in subsection (a)(2)(D)(ii), by inserting `the weighted ave
rage of (I) such weighted average prevailing charge, and (II)' after `weighted a
verage prevailing charge';
(B) in subsection (c)(1)(B), by striking the last sentence;
(C) in subsections (c)(3)(C)(ii)(II) and (c)(3)(C)(iii)(II), by
striking `by' the first place it appears in each respective subsection,
(D) in subsection (c), by redesignating the second paragraph (3
), and paragraphs (4) and (5), as paragraphs (4) through (6), respectively;
(E) in subsection (c)(4), as redesignated by subparagraph (C),
is amended by striking `subsection' and inserting `section';
(F) in subsection (d)(1)(A), by striking `subparagraph (C)' and
inserting `paragraph (3)';
(G) in the last sentence of subsection (d)(2)(A), by striking `
proportion of HMO enrollees' and inserting `proportion of individuals who are en
rolled under this part who are HMO enrollees';
(H) in subsection (d)(2)(E)(i), by inserting `the' after `as se
t forth in';
(I) in subsection (d)(2)(E)(ii)(I), by inserting `payments for'
after `under this part for';
(J) in subsection (d)(3)(B)(ii)--
(i) by inserting `more than' after `decrease of', and
<
/ul>
(ii) in subclause (I), by striking `more than';
(I) in paragraphs (1)(D)(i) and (2)(A)(i) of subsection (f), by
striking `calendar years' and inserting `portions of calendar years';
(K) in subsection (f)(2)(A)--
(i) by striking `each performance standard rate of increase
' and inserting `the performance standard rate of increase, for all physicians'
services and for each category of physicians' services,',
(ii) in clause (i), by striking `physicians' services (as d
efined in subsection (f)(5)(A)' and inserting `all physicians' services or for t
he category of physicians' services, respectively,',
(iii) in clause (iii), by striking `physicians' services' a
nd inserting `all physicians' services or of the category of physicians' service
s, respectively,', and
(iv) in clause (iv), by striking `physicians' services (as
defined in subsection (f)(5)(A))' and inserting `all physicians' services or of
the category of physicians' services, respectively,';
(L) in subsection (f)(4)(A), by striking `paragraph (B)' and in
serting `subparagraph (B)';
(M) in subparagraphs (A) and (B) of subsection (g)(2), by inser
ting `other than radiologist services subject to section 1834(b),' after `during
1991,' and after `during 1992,', respectively; and
(N) in subsection (i)(1)(A), by striking `historical payment ba
sis (as defined in subsection (a)(2)(C)(i))' and inserting `adjusted historical
payment basis (as defined in subsection (a)(2)(D)(i))'.
(A) Effective as if included in the Omnibus Budget Reconciliati
on Act of 1989, section 6102(e)(4) of such Act is amended by inserting `determin
ed' after `prevailing charge rate'.
(B) Effective January 1, 1991, section 1842(b)(3)(G) of the Soc
ial Security Act, as amended by section 6102(e)(2) of Omnibus Budget Reconciliat
ion Act of 1989, is amended by striking `subsection (j)(1)(C)' and inserting `se
ction 1848(g)(2)'.
(C) Section 1842(b)(12)(A)(ii)(II) of the Social Security Act,
as amended by section 6102(e)(4) of the Omnibus Budget Reconciliation Act of 198
9, is amended by striking `, as the case may be'.
(D) Section 1833(a)(1)(H) of the Social Security Act, as amende
d by section 6102(e)(5) of the Omnibus Budget Reconciliation Act of 1989, is ame
nded by striking `, as the case may be'.
(E) Section 6102(e)(11) of the Omnibus Budget Reconciliation Ac
t of 1989 is amended by inserting `of Health and Human Services' after `Secretar
y'.
(F) Effective as if included in the enactment of the Omnibus Bu
dget Reconciliation Act of 1989, section 922(d)(1) of the Public Health Service
Act (42 U.S.C. 299c-1(d)(1)) is amended--
(i) by inserting `(other than of dissemination activities)'
after `evaluations', and
(ii) by inserting `research, demonstration projects, or eva
luations of' after `applications with respect to'.
(c) REPEAL OF REPORTS NO LONGER REQUIRED-
(1) Subsection (b) of section 4043 of the Omnibus Budget Reconcilia
tion Act of 1987 is repealed.
(2) Subsection (c) of section 4048 of such Act is repealed.
(3) Section 4049(b)(1) of such Act is amended by striking `, and sh
all report' and all that follows up to the period at the end.
(4) Subsection (d) of section 4050 of such Act is repealed.
(5) Section 4056(a)(1) of such Act, as redesignated by section 411(
f)(14) of the Medicare Catastrophic Coverage Act of 1988, is amended by striking
the last sentence.
(6) Section 4056(b)(2) of such Act is amended by striking the secon
d sentence.
(d) ADJUSTMENT OF EFFECTIVE DATES- Effective as if included in the enac
tment of the Omnibus Budget Reconciliation Act of 1987--
(1) section 4048(b) of such Act is amended by striking `January 1,
1989' and inserting `March 1, 1989', and
(2) section 4049(b)(2) of such Act is amended by striking `January
1, 1989' and inserting `April 1, 1989'.
(e) TRANSFER OF PROVISION INTO TITLE XVIII-
(1) Section 1842 of the Social Security Act (42 U.S.C. 1395u) is am
ended by adding at the end the following new subsection:
`(r) The Secretary shall establish a system which provides for a unique
identifier for each physician who furnishes services for which payment may be m
ade under this title.'.
(2) Section 9202 of the Consolidated Omnibus Budget Reconciliation
Act of 1985 is amended by striking subsection (g).
Subpart B--Payment for Other Items and Services
SEC. 4021. HOSPITAL OUTPATIENT SERVICES.
(a) CONTINUATION OF REDUCTION IN PAYMENTS FOR CAPITAL-RELATED COSTS- Se
ction 1861(v)(1)(S)(ii)(I) of the Social Security Act (42 U.S.C. 1395x(v)(1)(S)(
ii)(I)) is amended by inserting before the period at the end the following: `, b
y 10 percent for payments attributable to portions of cost reporting periods occ
urring during fiscal year 1991 or 1992, by 7.5 percent for payments attributable
to portions of cost reporting periods occurring during fiscal year 1993 or 1994
, and by 5 percent for payments attributable to portions of cost reporting perio
ds occurring during fiscal year 1995'.
(b) REDUCTION IN AMOUNT OF PAYMENTS OTHERWISE DETERMINED-
(1) IN GENERAL- Section 1833(a)(2)(B)(i)(I) of such Act (42 U.S.C.
1395l(a)(2)(B)(i)(I)) is amended by striking `services,' and inserting `services
(or, in the case of services furnished during portions of cost reporting period
s beginning on or after October 1, 1990, other than services furnished by a hosp
ital receiving an additional payment under section 1886(d)(5)(F) during such cos
t reporting period, 95 percent of the reasonable cost of such services),'.
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(2) STANDARD OVERHEAD AMOUNTS FOR AMBULATORY SURGICAL CENTERS- Sect
ion 1833(i)(3)(B) of such Act (42 U.S.C. 1395l(i)(3)(B)) is amended by inserting
after clause (ii) the following new clause:
`(iii) In determining the amount described in clause (i)(II) with respe
ct to facility services furnished during portions of cost reporting periods begi
nning on or after October 1, 1990 (other than services furnished by a hospital r
eceiving an additional payment under section 1886(d)(5)(F) during such cost repo
rting period), the Secretary shall reduce the standard overhead amount by 2.5 pe
rcent.'.
(c) PAYMENTS FOR AMBULATORY SURGICAL PROCEDURES-
(1) 2-YEAR FREEZE IN ALLOWANCE FOR INTRAOCULAR LENSES- Notwithstand
ing section 1833(i)(2)(A)(iii) of the Social Security Act, the amount of payment
determined under such section for an intraocular lens inserted during or subseq
uent to cataract surgery furnished to an individual in an ambulatory surgical ce
nter on or after January 1, 1991, and on or before December 31, 1992, shall be e
qual to $200.
(2) DETERMINATION OF FEE SCHEDULES ON BASIS OF SURVEY OF COSTS- Sec
tion 1833(i)(2)(A)(i) of such Act (42 U.S.C. 1395l(i)(2)(A)(i)) is amended by st
riking the comma at the end and inserting the following: `, as determined in acc
ordance with a survey (based upon a representative sample of procedures) taken n
ot later than July 1, 1992, and every 5 years thereafter, of the actual audited
costs incurred by such centers in providing such services,'.
(3) PROVIDING FOR REGULAR UPDATES TO FEE SCHEDULES- Section 1833(i)
(2) of such Act (42 U.S.C. 1395l(i)(2)) is amended--
(A) in the second sentence of subparagraph (A) and the second s
entence of subparagraph (B), by striking `and may be adjusted by the Secretary,
when appropriate,'; and
(B) by adding at the end the following new subparagraph:
`(C) Notwithstanding the second sentence of subparagraph (A) or the sec
ond sentence of subparagraph (B), if the Secretary has not updated amounts estab
lished under such subparagraphs with respect to facility services furnished in a
year, such amounts shall be increased by the percentage increase in the consume
r price index for all urban consumers (U.S. city average) for the 12-month perio
d ending with June of the preceding year.'.
(4) EXPANSION OF PROCEDURES IN CONSULTATION WITH TRADE ORGANIZATION
S- The second sentence of section 1833(i)(1) of such Act (42 U.S.C. 1395l(i)(1))
is amended by striking the period and inserting the following: `, in consultati
on with appropriate trade and professional organizations.'.
(5) EFFECTIVE DATE- The amendments made by paragraph (2) shall take
effect July 1, 1991.
SEC. 4022. DURABLE MEDICAL EQUIPMENT.
(a) ADDITIONAL 15 PERCENT REDUCTION IN PAYMENTS FOR SEAT-LIFT CHAIRS AN
D TRANSCUTANEOUS ELECTRICAL NERVE STIMULATORS- Section 1834(a)(1)(D) of the Soci
al Security Act (42 U.S.C. 1395m(a)(1)(D)) is amended by inserting before the pe
riod at the end the following: `, and, if furnished on or after January 1, 1991,
the Secretary shall further reduce such payment amount (as previously reduced)
by 15 percent'.
(b) DEVELOPMENT AND APPLICATION OF NATIONAL LIMITS ON FEES-
(1) INEXPENSIVE AND ROUTINELY PURCHASED DURABLE MEDICAL EQUIPMENT A
ND ITEMS REQUIRING FREQUENT AND SUBSTANTIAL SERVICING- Paragraphs (2) and (3) of
section 1834(a) of such Act (42 U.S.C. 1395m(a)) are each amended--
(A) in subparagraph (B)(i), by striking `or' at the end;
(B) by striking clause (ii) of subparagraph (B) and inserting t
he following:
`(ii) in 1991 is the sum of (I) 67 percent of the local pay
ment amount for the item or device computed under subparagraph (C)(i)(I) for 199
1, and (II) 33 percent of the national limited payment amount for the item or de
vice computed under subparagraph (C)(ii) for 1991;
`(iii) in 1992 is the sum of (I) 33 percent of the local pa
yment amount for the item or device computed under subparagraph (C)(i)(II) for 1
992, and (II) 67 percent of the national limited payment amount for the item or
device computed under subparagraph (C)(ii) for 1992; and
`(iv) in 1993 and each subsequent year is the national limi
ted payment amount for the item or device computed under subparagraph (C)(ii) fo
r that year.'; and
(C) by adding at the end the following new subparagraph:
`(C) COMPUTATION OF LOCAL PAYMENT AMOUNT AND NATIONAL LIMITED P
AYMENT AMOUNT- For purposes of subparagraph (B)--
`(i) the local payment amount for an item or device for a y
ear is equal to--
`(I) for 1991, the amount specified in subparagraph (B)
(i) for 1990 increased by the covered item increase for 1991, and
`(II) for 1992, the amount determined under this clause
for the preceding year increased by the covered item increase for 1992; and
`(ii) the national limited payment amount for an item or de
vice for a year is equal to--
`(I) for 1991 and 1992, the local payment amount determ
ined under clause (i) for such item or device for that year, except that the nat
ional limited payment amount may not exceed 100 percent of the weighted average
of all local payment amounts determined under such clause for such item for that
year and may not be less than 85 percent of the weighted average of all local p
ayment amounts determined under such clause for such item, and
`(II) for each subsequent year, the amount determined u
nder this clause for the preceding year increased by the covered item increase f
or such subsequent year.'.
(2) MISCELLANEOUS ITEMS AND OTHER COVERED ITEMS- Section 1834(a)(8)
of such Act (42 U.S.C. 1395m(a)(8)) is amended--
(A) in subparagraph (A)(ii)--
(i) by striking `or' at the end of subclause (I);
(I) by striking `1991 or', and
(II) by striking `the percentage increase' and all that
follows through the period and inserting `the covered item increase for the yea
r.';
(iii) by redesignating subclause (II) as subclause (III); a
nd
(iv) by inserting after subclause (I) the following new sub
clause:
`(II) in 1991, equal to the local purchase price comput
ed under this clause for the previous year, increased by the covered item increa
se for 1991, and decreased by the percentage by which the average of the purchas
e prices submitted exceeds the average of the reasonable charges on claims paid
for the item during the 6-month period ending with December 1986; or';
(B) by amending subparagraph (B) to read as follows:
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`(B) COMPUTATION OF NATIONAL LIMITED PURCHASE PRICE- With respe
ct to the furnishing of a particular item in a year, the Secretary shall compute
a national limited purchase price--
`(i) for 1991 and 1992, equal to the local purchase price c
omputed under subparagraph (A)(ii) for the item for the year, except that such n
ational limited purchase price may not exceed 100 percent of the weighted averag
e of all local purchase prices for the item computed under such subparagraph for
the year, and may not be less than 85 percent of the weighted average of all lo
cal purchase prices for the item computed under such subparagraph for the year;
and
`(ii) for each subsequent year, equal to the amount determi
ned under this subparagraph for the preceding year increased by the covered item
increase for such subsequent year.';
(C) in subparagraph (C)--
(i) by striking `regional purchase price' each place it app
ears and inserting `national limited purchase price',
(ii) by striking `and subject to subparagraph (D)',
(I) by striking `75' and inserting `67'; and
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(II) by striking `25' and inserting `33', and
(I) in subclause (I), by striking `50' and inserting `3
3'; and
(II) in subclause (II), by striking `50' and inserting
`67'; and
(D) by striking subparagraph (D).
(3) OXYGEN AND OXYGEN EQUIPMENT- Section 1834(a)(9) of such Act (42
U.S.C. 1395m(a)(9)) is amended--
(A) in subparagraph (A)(ii)(II), by striking `the percentage in
crease' and all that follows through the period and inserting `the covered item
increase for the year.';
(B) by amending subparagraph (B) to read as follows:
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`(B) COMPUTATION OF NATIONAL LIMITED MONTHLY PAYMENT RATE- With
respect to the furnishing of an item in a year, the Secretary shall compute a n
ational limited monthly payment rate equal to--
`(i) for 1991 and 1992, the local monthly payment rate comp
uted under subparagraph (A)(ii)(II) for the item for the year, except that such
national limited monthly payment rate may not exceed 100 percent of the weighted
average of all local monthly payment rates computed for the item under such sub
paragraph for the year, and may not be less than 85 percent of the weighted aver
age of all local monthly payment rates computed for the item under such subparag
raph for the year; and
`(ii) for each subsequent year, equal to the amount determi
ned under this subparagraph for the preceding year increased by the covered item
increase for such subsequent year.';
(C) in subparagraph (C)--
(i) by striking `regional monthly payment rate' each place
it appears and inserting `national limited monthly payment rate',
(I) by striking `75' and inserting `67'; and
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(II) by striking `25' and inserting `33', and
(I) in subclause (I), by striking `50' and inserting `3
3'; and
(II) in subclause (II), by striking `50' and inserting
`67'; and
(D) by striking subparagraph (D).
(4) DEFINITION- Section 1834(a) of such Act (42 U.S.C. 1395m(a)) is
amended by adding at the end the following new paragraph:
`(14) COVERED ITEM INCREASE- In this subsection, the term `covered
item increase' means, with respect to a year, the percentage increase in the con
sumer price index for all urban consumers (U.S. city average) for the 12-month p
eriod ending with June of the previous year.'.
(5) DELAY IN ADJUSTMENTS FOR INHERENT REASONABLENESS- Section 1834(
a)(10)(B) of such Act (42 U.S.C. 1395m(a)(10)(B)) is amended by striking `1991'
and inserting `1992'.
(6) CONFORMING AMENDMENT- Section 1834(a)(12) of such Act (42 U.S.C
. 1395m(a)(12)) is amended by striking `defined for purposes of paragraphs (8)(B
) and (9)(B)'.
(c) TREATMENT OF `RENTAL CAP' ITEMS-
(1) LIMITATION ON MONTHLY RECOGNIZED RENTAL AMOUNTS FOR MISCELLANEO
US ITEMS- Section 1834(a)(7)(A)(i) of such Act (42 U.S.C. 1395m(a)(7)(A)(i)) is
amended--
(A) by striking `for each such month' and inserting `for each o
f the first 3 months of such period'; and
(B) by striking the semicolon at the end and inserting the foll
owing: `, and for each of the remaining months of such period is 7.5 percent of
such purchase price;'.
(2) OFFER OF OPTION TO PURCHASE FOR MISCELLANEOUS ITEMS; ESTABLISHM
ENT OF REASONABLE LIFETIME- Section 1834(a)(7) of such Act (42 U.S.C. 1395m(a)(7
)(A)) is amended--
(A) in subparagraph (A)(i), by striking `15 months' and inserti
ng `15 months, or, in the case of an item for which a purchase agreement has bee
n entered into under clause (ii), a period of continuous use of longer than 13 m
onths';
(B) in subparagraph (A)(ii)--
(i) by striking `(ii) during the succeeding 6-month period
of medical need,' and inserting `(iii) in the case of an item for which a purcha
se agreement has not been entered into under clause (ii), during the first 6-mon
th period of medical need that follows the period of medical need during which p
ayment is made under clause (i),', and
(ii) by striking `and' at the end;
(C) in subparagraph (A)(iii)--
(i) by striking `(iii)' and inserting `(iv) in the case of
an item for which a purchase agreement has not been entered into under clause (i
i),', and
(ii) by striking the period at the end and inserting `; and
';
(D) by inserting after clause (i) of subparagraph (A) the follo
wing new clause:
`(ii) during the 9th continuous month during which payment
is made for the rental of an item under clause (i), the supplier of such item sh
all offer the individual patient the option to enter into a purchase agreement u
nder which, if the patient notifies the supplier not later than 1 month after th
e supplier makes such offer that the patient agrees to accept such offer and exe
rcise such option--
`(I) the supplier shall transfer title to the item to t
he individual patient on the first day that begins after the 13th continuous mon
th during which payment is made for the rental of the item under clause (i), and
`(II) after the supplier transfers title to the item un
der subclause (I), maintenance and servicing payments shall be made in accordanc
e with clause (v);';
(E) by adding at the end of subparagraph (A) the following new
clause:
`(v) in the case of an item for which a purchase agreement
has been entered into under clause (ii), after the expiration of the 6-month per
iod beginning on the day the supplier transfers title to the item to the patient
under clause (ii)(I), a maintenance and servicing payment may be made (for part
s and labor not covered by the supplier's or manufacturer's warranty, as determi
ned by the Secretary to be appropriate for the particular type of durable medica
l equipment) during the first month of each succeeding 6-month period, and the a
mount recognized for each such period is the amount recognized for the item for
such period under clause (iv).'; and
(F) by adding at the end the following new subparagraph:
`(C) REPLACEMENT OF ITEMS-
`(i) ESTABLISHMENT OF REASONABLE USEFUL LIFETIME- The Secre
tary shall determine and establish a reasonable useful lifetime for items of dur
able medical equipment for which payment may be made under this paragraph.
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`(ii) PAYMENT FOR REPLACEMENT ITEMS- If the reasonable life
time of such an item, as so established, has been reached during a continuous pe
riod of medical need, or the carrier determines that the item is lost or irrepar
ably damaged, payment for an item serving as a replacement for such item may be
made on a monthly basis for the rental of the replacement item in accordance wit
h subparagraph (A).'.
(4) TREATMENT OF POWER-DRIVEN WHEELCHAIRS AS MISCELLANEOUS ITEMS OF
DURABLE MEDICAL EQUIPMENT-
(A) IN GENERAL- Section 1834(a)(2)(A) of such Act (42 U.S.C. 13
95m(a)(2)(A)) is amended--
(i) in clause (i), by inserting `or' at the end;
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(ii) in clause (ii), by striking `or' at the end; and
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(iii) by striking clause (iii).
(B) OPTIONAL TREATMENT AS CUSTOMIZED ITEM- Section 1834(a)(4) o
f such Act (42 U.S.C. 1395m(a)(4)) is amended by striking `patient,' and inserti
ng `patient (including a customized wheelchair classified as a customized item u
nder this paragraph pursuant to criteria specified by the Secretary),'.
(d) FREEZE IN REASONABLE CHARGES FOR PARENTERAL AND ENTERAL NUTRIENTS,
SUPPLIES, AND EQUIPMENT DURING 1991- In determining the amount of payment under
part B of title XVIII of the Social Security Act for enteral and parenteral nutr
ients, supplies, and equipment furnished during 1991, the charges determined to
be reasonable with respect to such nutrients, supplies, and equipment may not ex
ceed the charges determined to be reasonable with respect to such items for 1990
.
(e) REQUIRING PRIOR APPROVAL FOR POTENTIALLY OVERUSED ITEMS- Section 18
34(a) of such Act (42 U.S.C. 1395m(a)), as amended by subsection (b)(4), is amen
ded by adding at the end the following new paragraph:
`(15) CARRIER DETERMINATIONS OF POTENTIALLY OVERUSED ITEMS IN ADVAN
CE-
`(A) DEVELOPMENT OF LIST OF ITEMS BY SECRETARY- The Secretary s
hall develop and periodically update a list of items for which payment may be ma
de under this subsection that the Secretary determines, on the basis of prior pa
yment experience, are frequently subject to unnecessary utilization, and shall i
nclude in such list seat-lift chairs, trancutaneous electrical nerve stimulators
, and motorized scooters.
`(B) DETERMINATIONS OF COVERAGE IN ADVANCE- A carrier shall det
ermine in advance whether payment for an item included on the list developed by
the Secretary under subparagraph (A) may not be made because of the application
of section 1862(a)(1).'.
(f) PROHIBITION AGAINST DISTRIBUTION OF MEDICAL NECESSITY FORMS BY SUPP
LIERS-
(1) IN GENERAL- Section 1834(a) of the Social Security Act (42 U.S.
C. 1395m(a)), as amended by subsections (b)(4) and (e), is further amended by ad
ding at the end the following new paragraph:
`(16) PROHIBITION AGAINST DISTRIBUTION BY SUPPLIERS OF FORMS DOCUME
NTING MEDICAL NECESSITY-
`(A) IN GENERAL- A supplier of a covered item under this subsec
tion may not distribute to physicians or to individuals entitled to benefits und
er this part for commercial purposes any completed or partially completed forms
or other documents required by the Secretary to be submitted to show that a cove
red item is reasonable and necessary for the diagnosis or treatment of illness o
r injury or to improve the functioning of a malformed body member.
`(B) PENALTY- Any supplier of a covered item who knowingly and
willfully distributes a form or other document in violation of subparagraph (A)
is subject to a civil money penalty in an amount not to exceed $1,000 for each s
uch form or document so distributed. The provisions of section 1128A (other than
subsections (a) and (b)) shall apply to civil money penalties under this subpar
agraph in the same manner as they apply to a penalty or proceeding under section
1128A(a).'.
(2) EFFECTIVE DATE- The amendment made by paragraph (1) shall apply
to forms and documents distributed on or after January 1, 1991.
(g) LIMITING CHARGES OF NONPARTICIPATING SUPPLIERS- Section 1834(a) of
such Act (42 U.S.C. 1395m(a)), as amended by subsections (b)(4), (e), and (f), i
s further amended by adding at the end the following new paragraph:
`(17) LIMITING CHARGES FOR NONPARTICIPATING SUPPLIERS-
`(A) IN GENERAL- In the case of covered items for which payment
may be made under this subsection furnished on or after January 1, 1991, if a n
onparticipating supplier furnishes the item to an individual entitled to benefit
s under this part, the supplier may not charge the individual more than the limi
ting charge (as defined in subparagraph (B)).
`(B) LIMITING CHARGE DEFINED- In subparagraph (A), the term `li
miting charge' means, with respect to an item furnished--
`(i) in 1991, 125 percent of the payment amount specified f
or the item under this subsection,
`(ii) in 1992, 120 percent of the payment amount specified
for the item under this subsection, and
`(iii) in a subsequent year, 115 percent of the payment amo
unt specified for the item under this subsection.
`(C) ENFORCEMENT- If a supplier knowingly and willfully bills i
n violation of subparagraph (A), the Secretary may apply sanctions against such
supplier in accordance with section 1842(j)(2) in the same manner as such sancti
ons may apply to a physician.'.
(h) RECERTIFICATION FOR CERTAIN PATIENTS RECEIVING HOME OXYGEN THERAPY
SERVICES-
(1) IN GENERAL- Section 1834(a)(5) of such Act (42 U.S.C. 1395m(a)(
5)) is amended--
(A) in subparagraph (A), by striking `(B) and (C)' and insertin
g `(B), (C), and (E)'; and
(B) by adding at the end the following new subparagraph:
`(E) RECERTIFICATION FOR PATIENTS RECEIVING HOME OXYGEN THERAPY
- In the case of a patient receiving home oxygen therapy services who, at the ti
me such services are initiated, has an initial arterial blood gas value at or ab
ove a partial pressure of 55 or an arterial oxygen saturation at or above 89 per
cent, no payment may be made under this part for such services after the expirat
ion of the 60-day period that begins on the date the patient first receives such
services unless the patient's attending physician certifies that, on the basis
of a follow-up test of the patient's arterial blood gas value or arterial oxygen
saturation conducted during the final 15 days of such 60-day period, there is a
medical need for the patient to continue to receive such services.'.
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(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall appl
y to patients who first receive home oxygen therapy services on or after January
1, 1991.
(i) STUDY OF SEPARATE FEE SCHEDULES FOR CERTAIN SUPPLIERS OF PROSTHETIC
DEVICES, ORTHOTICS, AND PROSTHETICS-
(1) STUDY- The Secretary of Health and Human Services shall conduct
a study of the feasibility and desirability of establishing a separate fee sche
dule for use in determining the amount of payments for covered items under secti
on 1834(a) of the Social Security Act with respect to suppliers of prosthetic de
vices, orthotics, and prosthetics who provide professional services that would t
ake into account the costs to such providers of providing such services.
(2) REPORT- By not later than 1 year after the date of the enactmen
t of this Act, the Secretary shall submit to Congress a report on the study cond
ucted under paragraph (1).
(j) TECHNICAL CORRECTIONS- Effective as if included in the enactment of
the Omnibus Budget Reconciliation Act of 1987, section 4062(e) of such Act is a
mended--
(1) by inserting `(other than oxygen and oxygen equipment)' after `
covered items', and
(2) by inserting before the period at the end the following: `and t
o oxygen and oxygen equipment furnished on or after June 1, 1989'.
(k) EFFECTIVE DATE- Except as provided in subsections (f)(2), (h)(2), a
nd (j), the amendments made by this section shall apply to items furnished on or
after January 1, 1991.
SEC. 4023. CLINICAL DIAGNOSTIC LABORATORY TESTS.
(a) REDUCTION IN NATIONAL CAP ON FEE SCHEDULES-
(1) IN GENERAL- Section 1833(h)(4)(B) of the Social Security Act (4
2 U.S.C. 1395l(h)(4)(B)) is amended--
(A) in clause (ii), by striking `and' at the end;
(i) by inserting `and before January 1, 1991,' after `1989,
', and
(ii) by striking the period at the end and inserting `, and
'; and
(C) by adding at the end the following new clause:
`(iv) after December 31, 1990, is equal to 85 percent of the median
of all the fee schedules established for that test for that laboratory setting
under paragraph (1).'.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall appl
y to tests furnished on or after January 1, 1991.
(b) Clarification of Mandatory Assignment for Tests Performed by a Phys
ician Office Laboratory-
(1) IN GENERAL- (A) Section 1833(h)(5)(C) of such Act (42 U.S.C. 13
95l(h)(5)(C)) is amended by striking `performed by a laboratory other than a rur
al health clinic' and inserting `(other than a test performed by a rural health
clinic)'.
(B) Section 1833(h)(5)(A)(ii)(III) of such Act (42 U.S.C. 1395l(i)(
5)(A)(iii)) is amended by striking `laboratory,' and inserting `laboratory (but
not including a laboratory described in subclause (II)),'.
(C) Section 6111(b)(2) of the Omnibus Budget Reconciliation Act of
1989 is amended by striking `January 1, 1990' and inserting `May 1, 1990'.
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(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall take
effect as if included in the enactment of the Omnibus Budget Reconciliation Act
of 1989.
(c) TECHNICAL CORRECTIONS-
(1)(A) Section 1833(h)(5)(A)(ii) of such Act (42 U.S.C. 1395l(h)(5)
(A)(ii)) is amended--
(i) in subclause (II), by striking `a wholly-owned subsidiary o
f' and inserting `wholly owned by'; and
(ii) in subclause (III), by striking `submits bills or requests
for payment in any year' and inserting `receives requests for testing during th
e year in which the test is performed'.
(B) The amendments made by subparagraph (A) shall take effect Janua
ry 1, 1991.
(2) The heading of section 1846 of such Act is amended by striking
`OF' and inserting `OR'.
(3) Section 9339(b) of the Omnibus Budget Reconciliation Act of 198
6 is amended by striking paragraph (3).
SEC. 4024. COVERAGE OF NURSE PRACTITIONERS IN RURAL AREAS.
(a) IN GENERAL- Section 1861(s)(2)(K) of the Social Security Act (42 U.
S.C. 1395x(s)(2)(K)) is amended--
(1) in clause (ii), by striking `and' at the end;
(2) in clause (iii), by striking `(i) or (ii)' and inserting `(i),
(ii), or (iii)';
(3) by redesignating clause (iii) as clause (iv); and
(4) by inserting after clause (ii) the following new clause:
`(iii) services which would be physicians' services if furnished by
a physician (as defined in subsection (r)(1)) and which are performed by a nurs
e practitioner or clinical nurse specialist (as defined in subsection (aa)(3)) w
orking in collaboration (as defined in subsection (aa)(4)) with a physician (as
defined in subsection (r)(1)) in a rural area (as defined in section 1886(d)(2)(
D)) which the nurse practitioner or clinical nurse specialist is authorized to p
erform by the State in which the services are performed, and'.
(1) DIRECT PAYMENT- Section 1832(a)(2)(B) of such Act (42 U.S.C. 13
95k(a)(2)(B)) is amended--
(A) in clause (ii), by striking `and' at the end;
(B) in clause (iii), by striking the semicolon and inserting a
comma; and
(C) by adding at the end the following new clause:
`(iv) services of a nurse practitioner or clinical nurse sp
ecialist provided in a rural area (as defined in section 1886(d)(2)(D)); and'.
(2) AMOUNT- Section 1833(a)(1) of such Act (42 U.S.C. 1395l(a)(1))
is amended--
(A) by striking `and' at the end of subparagraph (K); and
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(B) by inserting after subparagraph (L) the following new subpa
ragraph: `(M) with respect to services described in section 1861(s)(2)(K)(iii) (
relating to nurse practitioner or clinical nurse specialist services provided in
a rural area), the amounts paid shall be 80 percent of the lesser of the actual
charge or the prevailing charge that would be recognized (or, for services furn
ished on or after January 1, 1992, the fee schedule amount provided under sectio
n 1848, as the case may be) if the services had been performed by a physician (s
ubject to the limitation described in subsection (r)(2)), and'.
(3) CAP ON PREVAILING CHARGE; BILLING ONLY ON ASSIGNMENT-RELATED BA
SIS- Section 1833 of such Act (42 U.S.C. 1395l) is amended by adding at the end
the following new subsection:
`(r)(1) With respect to services described in section 1861(s)(2)(K)(iii
) (relating to nurse practitioner or clinical nurse specialist services provided
in a rural area), payment may be made on the basis of a claim or request for pa
yment presented by the nurse practitioner or clinical nurse specialist furnishin
g such services, or by a hospital, rural primary care hospital, physician, group
practice, ambulatory surgical center, or rural health clinic with which the nur
se practitioner or clinical nurse specialist has an employment or contractual re
lationship that provides for payment to be made under this part for such service
s to such hospital, physician, group practice, ambulatory surgical center, or ru
ral health clinic.
`(2)(A) For purposes of subsection (a)(1)(M), the prevailing charge for
services described in section 1861(s)(2)(K)(iii) may not exceed the applicable
percentage (as defined in subparagraph (B)) of the prevailing charge rate determ
ined for such services performed by physicians who are not specialists.
`(B) In subparagraph (A), the term `applicable percentage' means--
`(i) 75 percent in the case of services performed in a hospital, an
d
`(ii) 85 percent in the case of other services.
`(3)(A) Payment under this part for services described in section 1861(
s)(2)(K)(iii) may be made only on an assignment-related basis, and any such assi
gnment agreed to by a nurse practitioner or clinical nurse specialist shall be b
inding upon any other person presenting a claim or request for payment for such
services.
`(B) Except for deductible and coinsurance amounts applicable under thi
s section, any person who knowingly and willfully presents, or causes to be pres
ented, to an individual enrolled under this part a bill or request for payment f
or services described in section 1861(s)(2)(K)(iii) in violation of subparagraph
(A) is subject to a civil money penalty of not to exceed $2,000 for each such b
ill or request. The provisions of section 1128A (other than subsections (a) and
(b)) shall apply to a civil money penalty under the previous sentence in the sam
e manner as such provisions apply to a penalty or proceeding under section 1128A
(a).
`(4) No hospital or rural primary care hospital that presents a claim o
r request for payment under this part for services described in section 1861(s)(
2)(K)(iii) may treat any uncollected coinsurance amount imposed under this part
with respect to such services as a bad debt of such hospital for purposes of thi
s title.'.
(c) CONFORMING AMENDMENT- Section 1842(b) of such Act (42 U.S.C. 1395u(
b)) is amended by striking `section 1861(s)(2)(K)' each place it appears in para
graphs (6) and (12) and inserting `clauses (i) and (ii) of section 1861(s)(2)(K)
'.
(d) DEFINITION- Section 1861(aa)(3) of the Social Security Act (42 U.S.
C. 1395x(aa)(3)) is amended by striking `The term' and all that follows through
`who performs' and inserting the following: `The term `physician assistant', the
term `nurse practitioner', and the term `clinical nurse specialist' mean, for p
urposes of this Act, a physician assistant, nurse practitioner, or clinical nurs
e specialist who performs'.
(e) EFFECTIVE DATE- The amendments made by this section shall apply to
services furnished on or after January 1, 1991.
SEC. 4025. CLARIFYING COVERAGE OF EYEGLASSES PROVIDED WITH INTRAOCULAR LE
NSES FOLLOWING CATARACT SURGERY.
(a) COVERAGE AS A PROSTHETIC DEVICE- Section 1861(s)(8) of the Social S
ecurity Act (42 U.S.C. 1395x(s)(8)) is amended by inserting before the semicolon
at the end the following: `and including corrective eyeglasses provided with in
traocular lenses following cataract surgery (but not including replacement for s
uch eyeglasses)'.
(b) CLARIFICATION OF EXCLUSION- Section 1862(a)(7) of such Act (42 U.S.
C. 1395y(a)(7)) is amended by inserting `(other than eyeglasses described in sec
tion 1861(s)(8))' after `eyeglasses' the first place it appears.
(c) EFFECTIVE DATE- The amendments made by this section shall apply to
items and services furnished before, on, or after the date of the enactment of t
his Act.
SEC. 4026. COVERAGE OF INJECTABLE DRUGS FOR TREATMENT OF OSTEOPOROSIS.
(a) IN GENERAL- Section 1861 of the Social Security Act (42 U.S.C. 1395
x) is amended--
(1) in subsection (s)(2)--
(A) by striking `and' at the end of subparagraph (M),
(B) by inserting `and' at the end of subparagraph (N), and
(C) by inserting after subparagraph (N) the following new subpa
ragraph:
`(O) a covered osteoporosis drug and its administration (as defined
in subsection (jj)) furnished on or after January 1, 1991, and on or before Dec
ember 31, 1992; and'; and
(2) by inserting after subsection (ii) the following new subsection
:
`Covered Osteoporosis Drug
`(jj) The term `covered osteoporosis drug' means an injectable drug app
roved for the treatment of a bone fracture related to post-menopausal osteoporos
is provided to a patient if, in accordance with regulations promulgated by the S
ecretary--
`(1) the patient's attending physician certifies that the patient i
s unable to learn the skills needed to self-administer such drug or is otherwise
physically or mentally incapable of self-administering such drug; and
`(2) the patient meets the requirements for coverage of home health
services described in section 1814(a)(2)(C).'.
(b) STUDY OF EFFECTS OF COVERAGE-
(1) IN GENERAL- The Secretary of Health and Human Services shall co
nduct a study analyzing the effects of coverage of osteoporosis drugs under part
B of title XVIII of the Social Security Act (as amended by subsection (a)) on p
atient health and the utilization of inpatient hospital and extended care servic
es.
(2) REPORT- By not later than March 1, 1992, the Secretary shall su
bmit a report to Congress on the study conducted under paragraph (1), and shall
include in such report such recommendations regarding expansion of coverage unde
r the medicare program of items and services for individuals with post-menopausa
l osteoporosis as the Secretary considers appropriate.
SEC. 4027. CONDITIONS FOR CATARACT SURGERY ALTERNATIVE PAYMENT DEMONSTRAT
ION PROJECT.
In carrying out any demonstration project to evaluate the effectiveness
of alternative methods of payment for cataract surgery under title XVIII of the
Social Security Act, the Secretary of Health and Human Services--
(1) may not select providers to participate in such demonstration p
roject solely on the basis of the number of cataract surgeries performed;
(2) shall monitor the quality of services provided under such demon
stration project; and
(3) shall develop criteria for the selection of providers to partic
ipate in such demonstration project in consultation with physicians specializing
in the care and treatment of conditions of the eyes.
Subpart C--Miscellaneous Provisions
SEC. 4031. MEDICARE CARRIER NOTICE TO STATE MEDICAL BOARDS.
(a) IN GENERAL- Section 1842(b)(3) of the Social Security Act (42 U.S.C
. 1395u(b)(3)) is amended by inserting after subparagraph (H) the following new
subparagraph:
`(I) will refer cases of physician unethical or unprofessional
conduct to the State medical board or boards responsible for the licensing of th
e physician involved;'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply to
cases of unethical or unprofessional conduct that a carrier becomes aware of mo
re than 60 days after the date of the enactment of this Act. The Secretary of He
alth and Human Services shall provide for such modification of contracts under s
ection 1842 of the Social Security Act as may be necessary to incorporate the ad
ditional requirement imposed by the amendment made by subsection (a) on a timely
basis.
SEC. 4032. TECHNICAL AND MISCELLANEOUS PROVISIONS RELATING TO PART B.
(a) Section 1833(o)(2)(D) of the Social Security Act (42 U.S.C. 1395l(o
)(2)(D)) is amended by striking `one (or more, as specified by the Secretary) pa
irs' and inserting `one pair (or more pairs, as specified by the Secretary)'.
(b) Section 1839(a)(4) of such Act (42 U.S.C. 1395r(a)(4)) is amended b
y striking `which' after `age 65' the second place it appears.
(c) Section 1842(b)(3) of such Act (42 U.S.C. 1395u(b)(3)) is amended--
(1) by striking `and' at the end of subparagraph (H),
(2) by inserting `and' at the end of subparagraph (I), and
(3) by redesignating subparagraph (L) as subparagraph (J).
(d) Section 1861(s)(2)(B) of such Act (42 U.S.C. 1395x(s)(2)(B)) is ame
nded by striking `and partial hospital services incident to such services' and b
y inserting `and partial hospitalization services' after `hospital services'.
(e) Section 1861(ii) of such Act (42 U.S.C. 1395x(ii)) is amended--
(1) by inserting `furnished by a clinical psychologist (as defined
by the Secretary)' after `means such services', and
(2) by striking `his service furnished by a clinical psychologist (
as defined by the Secretary)' and inserting `such services'.
PART 2--PROVISIONS RELATING TO PARTS A AND B
Subpart A--Peer Review Organizations
SEC. 4101. PRO COORDINATION WITH CARRIERS.
(a) IN GENERAL- Section 1154 of the Social Security Act (42 U.S.C. 1320
c-3) is amended by adding at the end the following new subsection:
`(g) In carrying out coordinating activities under subsection (a)(10)(A
) with carriers under section 1842, each organization shall provide, in a manner
specified by the Secretary, for--
`(1) information exchange in accordance with specifications of the
Secretary,
`(2) development of common utilization and quality review claim edi
ts and specific medical review criteria used to identify individual claims for r
eview, and
`(3) collaboration on the analysis of utilization trends and on the
results of medical reviews and collaboration on the development of claim edit s
tandards and review criteria.'.
(b) CARRIER COORDINATION- Section 1842(b)(3) of such Act (42 U.S.C. 139
5u(b)(3)) is amended by inserting after subparagraph (H) the following new subpa
ragraph:
`(I) will coordinate its activities with those of utilization and q
uality control peer review organizations, in the manner specified by the Secreta
ry in order to carry out section 1154(g); and'.
(c) REPORT- By not later than January 1, 1992, the Secretary of Health
and Human Services shall submit a report to the Committees on Ways and Means and
Energy and Commerce of the House of Representatives and the Committee on Financ
e of the Senate on the implementation of the amendments made by this section.
SEC. 4102. CONFIDENTIALITY OF PEER REVIEW DELIBERATIONS.
(a) IN GENERAL- Section 1160(d) of the Social Security Act (42 U.S.C. 1
320c-9(d)) is amended by adding at the end the following: `No document or other
information produced by such an organization in connection with its deliberation
s in making determinations under section 1154(a)(1)(B) or 1156(a)(2) shall be su
bject to subpena or discovery in any administrative or civil proceeding; except
that such an organization shall provide, upon request of a practitioner or other
person adversely affected by such a determination, a summary of the organizatio
n's findings and conclusions in making the determination.'.
(b) EFFECTIVE DATE- The amendments made by subsection (a) shall apply t
o all proceedings as of the date of the enactment of this Act.
SEC. 4103. ROLE OF PEER REVIEW ORGANIZATIONS IN REVIEW OF HOSPITAL TRANSF
ERS.
(a) IN GENERAL- Section 1867(d) of the Social Security Act (42 U.S.C. 1
395dd(d)) is amended by adding at the end the following new paragraph:
`(4) CONSULTATION WITH PEER REVIEW ORGANIZATIONS-
`(A) IN GENERAL- In considering allegations concerning violatio
ns of the requirements of this section in imposing sanctions under paragraph (1)
or (2) in cases in which the concerns described in subparagraph (B) are raised,
the Secretary shall request the appropriate utilization and quality control pee
r review organization (with a contract under part B of title XI) to review the m
edical condition of the individual involved and provide a report concerning its
findings and professional opinions with respect to such concerns. Except in the
case in which a delay would immediately jeopardize the health or safety of indiv
iduals, the Secretary shall request such a review before effecting a sanction un
der paragraph (1) or paragraph (2) and shall provide a period of at least 60 day
s for such review.
`(B) CONCERNS- The concerns described in this subparagraph are-
-
`(i) whether the individual had an emergency medical condit
ion which had not been stabilized, and
`(ii) if the individual was transferred, (I) whether, based
upon the information available at the time of the transfer, the medical benefit
s reasonably expected from the provision of appropriate medical treatment at ano
ther medical facility outweighed the increased risks to the individual (and, in
the case of labor, to the unborn child) from effecting the transfer, and (II) wh
ether the transfer was an appropriate transfer (as defined in subsection (c)(2))
.'.
(b) CONFORMING AMENDMENT- Section 1154(a) of such Act (42 U.S.C. 1320c-
4(a)) is amended by adding at the end the following new paragraph:
`(16) The organization shall provide for a review and report to the
Secretary when requested by the Secretary under section 1867(d)(4)(A). The orga
nization shall provide reasonable notice of the review to the physician and hosp
ital involved. Within the time period permitted by the Secretary, the organizati
on shall provide a reasonable opportunity for discussion with the physician and
hospital involved, and an opportunity for the physician and hospital to submit a
dditional information, before issuing its report to the Secretary under such sec
tion.'.
(c) EFFECTIVE DATE- The amendment made by subsection (a) shall take eff
ect on the first day of the first month beginning more than 60 days after the da
te of the enactment of this Act. The amendment made by subsection (b) shall appl
y to contracts under part B of title XI of the Social Security Act as of the fir
st day of the first month beginning more than 60 days after the date of the enac
tment of this Act.
SEC. 4104. PEER REVIEW NOTICE.
(a) REQUIREMENT- Section 1154(a)(9) of the Social Security Act (42 U.S.
C. 1320c-3(a)(9)) is amended--
(1) by inserting `(A)' after `(9)', and
(2) by adding at the end the following:
`(B) The organization shall notify the State board or boards respon
sible for the licensing or disciplining of any physician when the organization s
ubmits a report and recommendations to the Secretary with respect to such physic
ian under section 1156(b)(1).'.
(b) DISCLOSURE- Section 1160(b)(1) of such Act (42 U.S.C. 1320c-9(b)(1)
) is amended--
(1) by striking `and' at the end of subparagraph (B),
(2) by adding `and' at the end of subparagraph (C), and
(3) by adding at the end the following new subparagraph:
`(D) to provide notice to the State medical board in accordance
with section 1154(a)(9)(B) when the organization submits a report and recommend
ations to the Secretary under section 1156(b)(1) with respect to a physician who
m the board is responsible for licensing;'.
(c) EFFECTIVE DATE- The amendments made by this section shall apply to
notices of proposed sanctions issued more than 60 days after the date of the ena
ctment of this Act.
SEC. 4105. NOTICE TO STATE MEDICAL BOARDS WHEN ADVERSE ACTIONS TAKEN.
(a) IN GENERAL- Section 1156(b) of the Social Security Act (42 U.S.C. 1
320c-5(b)) is amended by adding at the end the following new paragraph:
`(6) When the Secretary effects an exclusion of a physician under parag
raph (2), the Secretary shall notify the State board responsible for the licensi
ng of the physician of the exclusion.'.
(b) EFFECTIVE DATE- The amendments made by this section shall apply to
sanctions effected more than 60 days after the date of the enactment of this Act
.
SEC. 4106. TREATMENT OF OPTOMETRISTS AND PODIATRISTS.
(a) IN GENERAL- Section 1154 of the Social Security Act (42 U.S.C. 1320
c-3) is amended--
(1) in subsection (a)(7)(A)(i), by inserting `, optometry, or podia
try' after `dentistry'; and
(2) in subsection (c), by striking `or dentistry' each place it app
ears and inserting `dentistry, optometry, or podiatry'.
(b) EFFECTIVE DATE- The amendments made by paragraph (1) shall apply to
contracts entered into or renewed on or after the date of the enactment of this
Act.
Subpart B--Other Provisions
SEC. 4121. EXTENSION OF SECONDARY PAYOR PROVISIONS.
(a) EXTENSION OF RENAL DISEASE PERIOD FROM 12 TO 18 MONTHS- Section 186
2(b)(1)(C) of the Social Security Act (42 U.S.C. 1395y(b)(1)(C)) is amended by s
triking `12-month period' each place it appears and inserting `18-month period'.
(b) ELIMINATION OF SUNSET FOR TRANSFER OF DATA PROVISION- Section 1862(
b)(5)(C) of such Act (42 U.S.C. 1395y(b)(5)(C)) is amended by striking clause (i
ii).
(c) ELIMINATION OF SUNSET ON APPLICATION TO DISABLED BENEFICIARIES-
(1) IN GENERAL- Section 1862(b)(1)(B) of such Act (42 U.S.C. 1395y(
b)(1)(B)) is amended--
(A) in clause (i), by striking `(iv)(II)' and `(iv)(I)' and ins
erting `(iii)(II)' and `(iii)(I)', respectively,
(B) by striking clause (iii), and
(C) by redesignating clause (iv) as clause (iii).
(2) CONFORMING AMENDMENTS- Paragraphs (1), (2), and (3)(B) of secti
on 1837(i) of such Act (42 U.S.C. 1395p(i)) and section 1839(b) of such Act (42
U.S.C. 1395r(b)) are each amended by striking `1862(b)(1)(B)(iv)' and inserting
`1862(b)(1)(B)(iii)'.
(1) The amendment made by subsection (a) shall apply to group healt
h plans for plan years beginning on or after January 1, 1991.
(2) The amendments made by subsections (b) and (c) shall take effec
t on the date of the enactment.
SEC. 4122. HEALTH MAINTENANCE ORGANIZATIONS.
(a) PERMITTING RETROACTIVE ENROLLMENT OF CERTAIN RETIREES-
(1) IN GENERAL- Section 1876(c)(3)(B) of the Social Security Act (4
2 U.S.C. 1395mm(c)(3)(B)) is amended--
(A) by inserting `(i)' after `(B)', and
(B) by adding at the end the following new clauses:
`(ii) Regulations under clause (i) shall provide that, in the case of a
n individual who, at the time of retirement from employment, is enrolled with an
eligible organization (which has a risk-sharing contract under this section) un
der a health benefit plan operated, sponsored, or contributed to, by the individ
ual's employer or former employer, the enrollment may be made effective as of th
e first month of such retirement if such enrollment occurs not later than 3 mont
hs after the date of the retirement.
`(iii) Such regulations shall provide that, in the case of an individua
l who, at the time the individual's spouse retires from employment, is enrolled
with an eligible organization (which has a risk-sharing contract under this sect
ion) under a health benefit plan operated, sponsored, or contributed to, by the
employer or former employer of the individual's spouse, the enrollment may be ma
de effective as of the first month of such retirement if such enrollment occurs
not later than 3 months after the date of the retirement of the individual's spo
use.'.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall take
effect on the date of the enactment of this Act.
(b) PROHIBITING CERTAIN EMPLOYER MARKETING ACTIVITIES-
(1) IN GENERAL- Section 1862(b)(3) of such Act (42 U.S.C. 1395y(b)(
3)) is amended by adding at the end the following new subparagraph:
`(C) PROHIBITION OF FINANCIAL INCENTIVES NOT TO ENROLL IN A GRO
UP HEALTH PLAN- It is unlawful for an employer or other entity to offer any fina
ncial or other incentive for an individual not to enroll (or to terminate enroll
ment) under a group health plan which would (in the case of such enrollment) be
a primary plan (as defined in paragraph (2)(A)), unless such incentive is also o
ffered to all individuals who are eligible for coverage under the plan. Any enti
ty that violates the previous sentence is subject to a civil money penalty of no
t to exceed $5,000 for each such violation. The provisions of section 1128A (oth
er than the first sentence of subsection (a) and other than subsection (b)) shal
l apply to a civil money penalty under the previous sentence in the same manner
as such provisions apply to a penalty or proceeding under section 1128A(a).'.
(2) EFFECTIVE DATE- The amendment made by paragraph (1) shall apply
to incentives offered on or after the date of the enactment of this Act.
(c) PATIENT'S RIGHT TO PARTICIPATE IN AND DIRECT HEALTH CARE DECISIONS-
(1) REQUIREMENT FOR ELIGIBLE ORGANIZATIONS- Section 1876(c) of the
Social Security Act (42 U.S.C. 1395mm(c)) is amended--
(A) in subsection (c), by adding at the end the following new p
aragraph:
`(8) A contract under this section shall provide that the eligible orga
nization shall meet the requirement of subsection (k) (relating to maintaining w
ritten policies and procedures respecting advance directives).', and
(B) by adding at the end the following new subsection:
`(k)(1) For purposes of subsection (c)(8), the requirement of this subs
ection is that an eligible organization maintain written policies and procedures
with respect to all adult individuals receiving medical care by or through the
organization--
`(A) to provide written information to each such individual concern
ing--
`(i) an individual's rights under State law (whether statutory
or as recognized by the courts of the State) to make decisions concerning such m
edical care, including the right to accept or refuse medical or surgical treatme
nt and the right to formulate advance directives (as defined in paragraph (3)),
and
`(ii) the written policies of the organization respecting the i
mplementation of such rights;
`(B) to document in the individual's medical record whether or not
the individual has executed an advance directive;
`(C) not to condition the provision of care or otherwise discrimina
te against an individual based on whether or not the individual has executed an
advance directive;
`(D) to ensure compliance with requirements of State law respecting
advance directives at facilities of the organization; and
`(E) to provide (individually or with others) for education for sta
ff and the community on issues concerning advance directives.
Subparagraph (C) shall not be construed as requiring the provision of car
e which conflicts with an advance directive.
`(2) The written information described in paragraph (1)(A) shall be pro
vided to an adult individual at the time of enrollment of the individual with th
e organization.
`(3) In this subsection, the term `advance directive' means a written i
nstruction, such as a living will or durable power of attorney for health care,
recognized under State law and relating to the provision of such care when the i
ndividual is incapacitated.'.
(2) APPLICATION TO OTHER PREPAID ORGANIZATIONS- Section 1833 of suc
h Act (42 U.S.C. 1395l) is amended by adding at the end the following new subsec
tion:
`(r) The Secretary may not provide for payment under subsection (a)(1)(
A) with respect to an organization unless the organization provides assurances s
atisfactory to the Secretary that the organization meets the requirement of sect
ion 1876(k) (relating to maintaining written policies and procedures respecting
advance directives).'.
(3) EFFECTIVE DATE- The amendments made by this subsection shall ap
ply to contracts under section 1876 of the Social Security Act and payments unde
r section 1833(a)(1)(A) of such Act as of first day of the first month beginning
more than 1 year after the date of the enactment of this Act.
SEC. 4123. DEMONSTRATION PROJECT FOR PROVIDING STAFF ASSISTANTS TO HOME D
IALYSIS PATIENTS.
(a) ESTABLISHMENT- Not later than 6 months after the date of the enactm
ent of this Act, the Secretary of Health and Human Services shall establish and
carry out a demonstration project to determine whether the services of a home di
alysis aide providing medical assistance to a patient during hemodialysis treatm
ent at the patient's home may be covered under the medicare program in a cost-ef
fective manner that ensures patient safety.
(b) PAYMENTS TO PARTICIPATING PROVIDERS AND FACILITIES-
(1) SERVICES FOR WHICH PAYMENT MAY BE MADE- Under the demonstration
project established under subsection (a), the Secretary shall make payments for
2 years under title XVIII of the Social Security Act to a provider of services
(other than a skilled nursing facility) or a renal dialysis facility located in
an urban area and to a provider of services (other than a skilled nursing facili
ty) or a renal dialysis facility located in a rural area for services of a quali
fied home dialysis aide providing medical assistance to an individual described
in subsection (c) during hemodialysis treatment at the individual's home in an a
mount determined under paragraph (2).
(2) AMOUNT OF PAYMENT- (A) Subject to subparagraph (B), payment to
a provider of services or renal dialysis facility participating in the demonstra
tion project established under subsection (a) for the services described in para
graph (1) shall be equal to a rate prospectively determined by the Secretary and
shall be made on a per treatment basis.
(B) The per treatment amount of payment made under the demonstratio
n project for services provided to a patient may not exceed the amount of paymen
t that would be made under title XVIII of the Social Security Act for ambulance
service provided to the patient for transportation to and from the provider of s
ervices or renal dialysis facility.
(c) INDIVIDUALS ELIGIBLE TO RECEIVE SERVICES UNDER PROJECT- An individu
al may receive services from a provider of services or renal dialysis facility p
articipating in the demonstration project if--
(1) the individual is an end stage renal disease patient entitled t
o benefits under title XVIII of the Social Security Act;
(2) the individual's attending physician certifies that the individ
ual suffers from a permanent, serious medical condition (as specified by the Sec
retary) that precludes travel to and from a provider of services or renal dialys
is facility; and
(3) no family member or other individual is available or able to pr
ovide such assistance to the individual.
(d) QUALIFICATIONS FOR HOME DIALYSIS AIDES- For purposes of subsection
(b), a home dialysis aide is qualified if the aide--
(1) meets requirements developed by the Secretary for home dialysis
aides providing medical assistance during hemodialysis treatment at an individu
al patient's home; or
(2) meets any applicable standards established by the State in whic
h the aide is providing such assistance.
(e) REPORT- Not later than 6 months after the expiration of the demonst
ration project established under subsection (a), the Secretary shall submit to C
ongress a report on the results of the project, and shall include in such report
recommendations regarding appropriate eligibility criteria and cost-control mec
hanisms for medicare coverage of the services of a home dialysis aide providing
medical assistance to a patient during hemodialysis treatment at the patient's h
ome.
(f) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropr
iated not more than $2,000,000 to carry out the demonstration project establishe
d under subsection (a).
SEC. 4124. EXTENSION OF REPORTING DEADLINE FOR ALZHEIMER'S DISEASE DEMONS
TRATION PROJECT.
Section 9342(d)(2) of the Omnibus Budget Reconciliation Act of 1986 is
amended by striking `upon completion' and inserting `not later than 1 year after
completion'.
SEC. 4125. MISCELLANEOUS TECHNICAL CORRECTIONS.
Effective as if included in the enactment of the Omnibus Budget Reconci
liation Act of 1987, section 1891(a)(3)(D)(iii) of the Social Security Act (42 U
.S.C. 1395bbb(a)(3)(D)(iii)) is amended--
(1) by inserting `, within the previous 2 years,' after `which has
been determined'; and
(2) by striking `the requirements specified in or pursuant to secti
on 1861(o) or subsection (a) within the previous 2 years' and inserting `(I) sub
paragraph (A), (B), or (C), or (II) has been subject to an extended (or partial
extended) survey under subsection (c)(2)(D)'.
Part 3--Provisions Relating to Beneficiaries
SEC. 4201. PART B PREMIUM.
(a) $1 INCREASE IN PREMIUM FOR 1991- Notwithstanding any other provisio
n of law, but subject to subsections (b) and (f) of section 1839 of the Social S
ecurity Act, the amount of the monthly premium under such section, applicable fo
r individuals enrolled under part B of title XVIII of such title for 1991, shall
be increased by $1 above the amount of such premium otherwise determined under
section 1839(a)(3) of such Act.
(b) PREMIUM FOR YEARS 1992 THROUGH 1995- Section 1839(e) of the Social
Security Act (42 U.S.C. 1395r(e)) is amended--
(1) in paragraph (1), by inserting `and for each month after Decemb
er 1991 and prior to January 1996' after `January 1991', and
(2) in paragraph (2), by striking `1991' and inserting `1996'.
SEC. 4202. PART B DEDUCTIBLE.
Effective beginning with 1991, section 1833(b) of the Social Security A
ct (42 U.S.C. 1395l) is amended by striking `$75' and inserting `$100'.
Part 4--Standards for Medicare Supplemental Insurance Policies
SEC. 4301. SIMPLIFICATION OF MEDICARE SUPPLEMENTAL POLICIES.
(a) IN GENERAL- Section 1882 of the Social Security Act (42 U.S.C. 1395
ss) is amended--
(1) in subsection (b)(1)(B), by striking `through (4)' and insertin
g `through (5)';
(A) by striking `and' at the end of paragraph (3),
(B) by striking the period at the end of paragraph (4) and inse
rting `; and', and
(C) by inserting after paragraph (4) the following new paragrap
h:
`(5) meets the requirements of subsection (o).'; and
(3) by adding at the end the following new subsections:
`(o) The requirements of this subsection are as follows:
`(1)(A) Each medicare supplemental policy shall provide for coverag
e of a group of benefits consistent with subsection (p)(1).
`(B) If the medicare supplemental policy provides for coverage of a
group of benefits other than the core group of basic benefits described in subs
ection (p)(2)(B), the issuer of the policy must make available to the individual
a medicare supplemental policy with only such core group of basic benefits.
`(C) The issuer of the policy has provided, before the sale of the
policy, a summary information sheet which describes--
`(i) the benefits and premium under the policy, and
`(ii) the average ratio of benefits provided to premiums co
llected for the most recent 3-year period in which the policy is in effect (or,
for a policy that has not been in effect for 3 years, the average ratio of benef
its provided to premiums collected that is expected during the 3rd year of the p
olicy).
Such summary information shall be on a standard form approved by the
State (in consultation with the Secretary) consistent with the subsection (d)(3)
(D).
`(2)(A) Each medicare supplemental policy shall be guaranteed renew
able and--
`(i) the issuer may not cancel or nonrenew the policy solely on
the ground of health status of the individual; and
`(ii) the issuer shall not cancel or nonrenew the policy for an
y reason other than nonpayment of premium or material misrepresentation.
`(B) If the medicare supplemental policy is terminated by the group
policyholder and is not replaced as provided under subparagraph (D), the issuer
shall offer certificateholders an individual medicare supplemental policy which
(at the option of the certificateholder)--
`(i) provides for continuation of the benefits contained in the
group policy, or
`(ii) provides for such benefits as otherwise meets the require
ments of this section.
`(C) If an individual is a certificateholder in a group medicare su
pplemental policy and the individual terminates membership in the group, the iss
uer shall--
`(i) offer the certificateholder the conversion opportunity des
cribed in subparagraph (B), or
`(ii) at the option of the group policyholder, offer the certif
icateholder continuation of coverage under the group policy.
`(D) If a group medicare supplemental policy is replaced by another
group medicare supplemental policy purchased by the same policyholder, the succ
eeding issuer shall offer coverage to all persons covered under the old group po
licy on its date of termination. Coverage under the new group policy shall not r
esult in any exclusion for preexisting conditions that would have been covered u
nder the group policy being replaced.
`(3)(A) Each medicare supplemental policy shall provide that benefi
ts and premiums under the policy shall be suspended for any period in which the
policyholder has applied for and is determined to be entitled to medical assista
nce under title XIX of the Social Security Act, but only if the policyholder not
ifies the issuer of such policy within 90 days after the date the individual bec
omes entitled to such assistance. If such suspension occurs and if the policyhol
der loses entitlement to such medical assistance, such policy shall be automatic
ally reinstated as of the termination of such entitlement if the policyholder pr
ovides notice of loss of such entitlement within 90 days after the date of such
loss.
`(B) Nothing in this section shall be construed as affecting the au
thority of a State, under title XIX of the Social Security Act, to purchase a me
dicare supplemental policy for an individual otherwise entitled to assistance un
der such title.
`(p)(1)(A) If, within 9 months after the date of the enactment of this
subsection, the National Association of Insurance Commissioners (in this subsect
ion referred to as the `Association') promulgates--
`(i) limitations on the groups or packages of benefits that may be
offered under a medicare supplemental policy consistent with paragraphs (2) and
(3) of this subsection,
`(ii) uniform language and definitions to be used with respect to s
uch benefits,
`(iii) uniform format to be used in the policy with respect to such
benefits, and
`(iv) transitional requirements consistent with paragraph (4),
(such limitations, language, definitions, format, and requirements referr
ed to collectively in this subsection as `NAIC simplification standards'), subse
ction (g)(2)(A) shall be applied in each State, effective for policies issued to
policyholders on and after the date specified in subparagraph (C), as if the re
ference to the Model Regulation adopted on June 6, 1979, included a reference to
the NAIC simplification standards.
`(B) If the Association does not promulgate NAIC simplification standar
ds within the 9-month period specified in subparagraph (A), the Secretary shall
promulgate, not later than 9 months after the end of such period, limitations, l
anguage, definitions, format, and requirements described in clauses (i) through
(iv) of such subparagraph (in this subsection referred to collectively as `Feder
al simplification standards') and subsection (g)(2)(A) shall be applied in each
State, effective for policies issued to policyholders on and after the date spec
ified in subparagraph (C), as if the reference to the Model Regulation adopted o
n June 6, 1979, included a reference to the Federal simplification standards.
`(C)(i) Subject to clause (ii), the date specified in this subparagraph
for a State is the date the State adopts the NAIC simplification standards or t
he Federal simplification standards or 1 year after the date the Association or
the Secretary first adopts such standards, whichever is earlier.
`(ii) In the case of a State which the Secretary identifies, in consult
ation with the Association, as--
`(I) requiring State legislation (other than legislation appropriat
ing funds) in order for medicare supplemental policies to meet the NAIC or Feder
al simplification standards, but
`(II) having a legislature which is not scheduled to meet in 1992 i
n a legislative session in which such legislation may be considered,
the date specified in this subparagraph is the first day of the first cal
endar quarter beginning after the close of the first legislative session of the
State legislature that begins on or after January 1, 1992. For purposes of the p
revious sentence, in the case of a State that has a 2-year legislative session,
each year of such session shall be deemed to be a separate regular session of th
e State legislature.
`(D) Notwithstanding any other provision of this section, no medicare s
upplemental policy may be sold, issued, or renewed in a State unless--
`(i) the State's regulatory program under subsection (b)(1) provide
s for the application and enforcement of the standards and requirements set fort
h in such subsection (including the NAIC simplification standards or the Federal
simplification standards (as the case may be)) by the date specified in subpara
graph (C); or
`(ii) if the State's program does not provide for the application a
nd enforcement of such standards and requirements, the Secretary has determined
that the policy meets the standards and requirements set forth in subsection (c)
(including such applicable simplification standards) by such date.
Any person who issues or sells a medicare supplemental policy, after the
effective date of the NAIC or Federal simplification standards with respect to t
he policy, in violation of this subparagraph is subject to a civil money penalty
of not to exceed $25,000 for each such violation. The provisions of section 112
8A (other than the first sentence of subsection (a) and other than subsection (b
)) shall apply to a civil money penalty under the previous sentence in the same
manner as such provisions apply to a penalty or proceeding under section 1128A(a
).
`(E) In promulgating simplification standards under this paragraph, the
Association or Secretary shall consult with a working group composed of represe
ntatives of issuers of medicare supplemental policies, consumer groups, medicare
beneficiaries, and other qualified individuals. Such representatives shall be s
elected in a manner so as to assure balanced representation among the interested
groups.
`(F) If benefits (including deductibles and coinsurance) under this tit
le are changed and the Secretary determines, in consultation with the Associatio
n, that changes in the NAIC or Federal simplification standards are needed to re
flect such changes, the preceding provisions of this paragraph shall apply to th
e modification of simplification standards previously established in the same ma
nner as they applied to the original establishment of such standards.
`(2) The benefits under the NAIC or Federal simplification standards sh
all provide--
`(A) for such groups or packages of benefits as may be appropriate
taking into account the considerations specified in paragraph (4) and the requir
ements of the succeeding subparagraphs;
`(B)(i) for identification of a core group of basic benefits (not i
ncluding payment of any deductibles), common to all policies, and
`(ii) for identification of a group of benefits including the core
group of basic benefits and common additional benefits; and
`(C) that, subject to paragraph (5), the total number of different
benefit packages (counting the core group of basic benefits described in subpara
graph (B)(i), the group of benefits identified in subparagraph (B)(ii), and each
other combination of benefits that may be offered as a separate benefit package
) that may be established in all the States and by all issuers shall not exceed
10.
`(3) The benefits under paragraph (2) shall, to the extent possible--
`(A) provide for benefits that offer consumers the ability to purch
ase the benefits that are available in the market as of the date of the enactmen
t of this subsection; and
`(B) balance the objectives of (i) simplifying the market to facili
tate comparisons among policies, (ii) avoiding adverse selection, (iii) providin
g consumer choice, (iv) providing market stability, and (v) promoting competitio
n.
`(4) For purposes of paragraph (1)(A)(iv), the transitional requirement
s of this paragraph are that, in the case of a medicare supplemental policy whic
h was issued to a policyholder before the effective date of the NAIC or Federal
simplification standards and which do not meet such standards, any renewal of su
ch policy shall be deemed to be the issuance of a policy in violation of this su
bsection unless the issuer offers to the policyholder, not later than 60 days be
fore the effective date of the renewal, 2 medicare supplemental policies each of
which--
`(A) complies with such standards,
`(B) waives any time periods applicable to preexisting conditions,
waiting period, elimination periods and probationary periods in the policy for s
imilar benefits to the extent such time was spent under the policy being replace
d, and
`(C) provides for classification of premiums on terms that are at l
east as favorable to the policyholder as the premium classification terms that a
pplied to the policyholder as of such effective date,
and one of which provides for the core group of basic benefits described
in paragraph (2)(B)(i) and the other of which provides benefits described in par
agraph (2)(B)(ii).
`(5)(A) The Secretary may, upon application by a State, waive the requi
rements of this subsection to permit the issuance and sale of a medicare supplem
ental policy which does not comply with the respective NAIC or Federal simplific
ation standards for a period of up to 3 years in order to demonstrate the offeri
ng of new or innovative benefits as part of the policy. Such new or innovative b
enefits may include managed care features.
`(B) In the case of any such waiver, the Secretary shall evaluate the a
ppropriateness of the new or innovative benefits offered and determine if the ad
dition of a new group of such benefits to the NAIC or Federal simplification sta
ndards previously established would further the purposes of this subsection. If
such determination is made, subject to subparagraph (C), the Secretary shall req
uest the Association to modify the NAIC simplification standards or to recommend
modification of the Federal simplification standards to include such an additio
nal group of benefits (and accompanying language, definitions, and format with r
espect to such benefits) as may be appropriate. If the Association fails to make
such a modification in a timely manner, the Secretary may make such a modificat
ion.
`(C) Not more than 3 additional groups of benefits may be added under s
ubparagraph (B).
`(6)(A) Except as provided in subparagraph (B), this subsection shall n
ot be construed as preventing a State from restricting the groups or packages of
benefits (of those meeting the standards) that may be offered in medicare suppl
emental policies in the State.
`(B) A State may not restrict under subparagraph (A) the offering of a
medicare supplemental policy in which the benefits consist only of the core grou
p of basic benefits described in paragraph (2)(B)(i) or the group of benefits de
scribed in paragraph (2)(B)(ii).
`(C) This subsection shall not be construed as preventing an issuer of
a medicare supplemental policy from providing, through an arrangement with a ven
dor, for discounts from that vendor to policyholder or certificateholders for th
e purchase of items or services not covered under its medicare supplemental poli
cies.
`(8) The Secretary shall request the Association to establish an educat
ional program in order to educate consumers on the simplification standards deve
loped and applied under this subsection.
`(9) The Comptroller General shall examine the effectiveness of the med
icare supplemental policy simplification program established under this subsecti
on and the impact of the program on consumer protection, health benefit innovati
on, consumer choice, and health care costs. By not later than 4 years after the
date of the enactment of this subsection, the Comptroller General shall submit t
o Congress a report on such examination and shall include in the report such rec
ommendations on the appropriate roles of the National Association of Insurance C
ommissioners, States, and the Secretary in carrying out such a program as he dee
ms appropriate.'.
(b) PERIODIC REVIEW OF STATE REGULATORY PROGRAMS- Section 1882(b) of su
ch Act is amended--
(1) in paragraph (1), by striking `Supplemental Health Insurance Pa
nel (established under paragraph (2))' and inserting `the Secretary',
(2) in paragraph (1), by striking `the Panel' and inserting `the Se
cretary',
(3) in subparagraphs (A) and (D) of paragraph (1), by inserting `an
d enforcement' after `application', and
(4) by amending paragraph (2) to read as follows:
`(2) The Secretary periodically shall review State regulatory programs
to determine if they continue to meet the standards and requirements specified i
n paragraph (1). If the Secretary finds that a State regulatory program no longe
r meets the standards and requirements, before making a final determination, the
Secretary shall provide the State an opportunity to adopt such a plan of correc
tion as would permit the State regulatory program to continue to meet such stand
ards and requirements. If the Secretary makes a final determination that the Sta
te regulatory program, after such an opportunity, fails to meet such standards a
nd requirements, the program shall no longer be considered to have in operation
a program meeting such standards and requirements.'.
SEC. 4302. REQUIRING APPROVAL OF STATE FOR SALE IN THE STATE.
(a) IN GENERAL- Section 1882(d)(4)(B) of the Social Security Act (42 U.
S.C. 1395ss(d)(4)(B)) is amended--
(1) in the first sentence, by inserting before the period at the en
d the following: `(in the case of a State with an approved regulatory program) o
r (in the case of a State without such a program) has not been approved by the S
ecretary', and
(2) by amending the second sentence to read as follows: `Nothing in
this section shall be construed as to affect the right of any State to regulate
medicare supplemental policies which, under the provisions of this section, are
considered to be issued in another State.'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply to
policies mailed, or caused to be mailed, on and after July 1, 1991.
SEC. 4303. PREVENTING DUPLICATION.
(a) IN GENERAL- Subsection (d)(3) of section 1882 of the Social Securit
y Act (42 U.S.C. 1395ss) is amended--
(1) in subparagraph (A)--
(A) by striking `Whoever knowingly sells' and inserting `It is
unlawful for a person to sell or issue',
(B) by striking `substantially',
(C) by striking `, shall be fined' and inserting `. Whoever vio
lates the previous sentence shall be fined',
(D) in subparagraph (A), by inserting `or title XIX' after `oth
er than this title',
(E) in subparagraph (A), by striking `$5,000' and inserting `$2
5,000', and
(F) in subparagraph (A), by adding at the end the following: `A
ny person aggrieved by a violation of this subsection may in a civil action reco
ver threefold the damages such person sustained as a result of such violation, a
ny other appropriate relief (including punitive damages), and the costs of the s
uit (including reasonable attorney's fees).';
(2) by amending subparagraph (B) to read as follows:
`(B)(i) It is unlawful for a person to issue or sell a medicare supplem
ental policy to an individual entitled to benefits under part A or enrolled unde
r part B, whether directly, through the mail, or otherwise, unless--
`(I) the person obtains from the individual, as part of the applica
tion for the issuance or purchase and on a form described in subclause (II), a w
ritten statement signed by the individual stating, to the best of the individual
's knowledge, what health insurance policies the individual has, from what sourc
e, and whether the individual is entitled to any medical assistance under title
XIX, whether as a qualified medicare beneficiary or otherwise, and
`(II) the written statement is accompanied by a written acknowledgm
ent, signed by the seller of the policy, of the request for and receipt of such
statement.
`(ii) The statement required by clause (i) shall be made on a form that
--
`(I) states (in a prominent manner described by the Secretary) the
following: `A medicare beneficiary does not need more than one medicare suppleme
ntal policy. If you are 65 years of age or older, you may be eligible for benefi
ts under your State medicaid program. If you are eligible for medicaid benefits,
you do not need a medicare supplemental policy. If you are enrolled with the me
dicaid program and have a medicare supplemental policy, you can suspend your med
icare supplemental policy (including premium payments) while receiving medicaid
benefits if you provide notice to the insurer within 90 days of becoming eligibl
e for medicaid. If you lose medicaid benefits, you may resume coverage under you
r medicare supplemental policy by providing notice to the insurer within 90 days
of the date you lost medicaid benefits.'; and
`(II) states that counseling services may be available in the State
to provide advice concerning the purchase of medicare supplemental policies and
enrollment under the medicaid program, and may provide the telephone number for
such services.
`(iii)(I) Except as provided in subclause (II), if the statement requir
ed by clause (i) is not obtained or indicates that the individual has another me
dicare supplemental policy or indicates that the individual is entitled to any m
edical assistance under title XIX, it is unlawful to sell or issue such a policy
.
`(II) Subclause (I) shall not apply in the case of an individual who ha
s another medicare supplemental policy and who is not entitled to medicaid benef
its, if the individual indicates in writing, as part of the application for purc
hase, that the policy being purchased replaces such other policy and indicates a
n intent to terminate the policy being replaced when the new policy becomes effe
ctive.
`(iv) Whoever issues or sells a medicare supplemental policy in violati
on of this subparagraph shall be fined under title 18, United States Code, or im
prisoned not more than 5 years, or both, and, in addition to or in lieu of such
a criminal penalty, is subject to a civil money penalty of not to exceed $25,000
for each such failure.'; and
(3) by adding at the end the following:
`(D)(i) Anyone who sells a medicare supplemental policy to an individua
l shall make available for sale to the individual both a medicare supplemental p
olicy with only the core group of basic benefits (described in subsection (p)(2)
(B)(i)) and a medicare supplemental policy with the benefits described in subsec
tion (p)(2)(B)(ii).
`(ii) Anyone who sells a medicare supplemental policy to an individual
shall provide the individual, before the sale of the policy, a summary informati
on sheet which describes the benefits under the policy. Such summary information
shall be on a standard form approved by the State regulatory program or the Sec
retary (as the case may be) consistent with the NAIC or Federal simplification s
tandards under subsection (p)(1).
`(iii) Whoever sells a medicare supplemental policy in violation of thi
s subparagraph is subject to a civil money penalty of not to exceed $25,000 for
each such violation.'.
(b) CONFORMING AMENDMENT- Section 1882(d)(5) of such Act is amended by
inserting `(3)(B), (3)(D),' after `(3)(A),'.
(c) INCREASE IN OTHER CIVIL MONEY PENALTIES- Paragraphs (1) and (4)(A)
of section 1882(d) of such Act are amended by striking `$5,000' and inserting `$
25,000'.
(d) EFFECTIVE DATE- The amendments made by this section shall apply to
policies issued or sold more than 1 year after the date of the enactment of this
Act.
SEC. 4304. LOSS RATIOS.
(a) IN GENERAL- Section 1882 of the Social Security Act (42 U.S.C. 1395
ss) is amended--
(1) in subsection (c), by amending paragraph (2) to read as follows
:
`(2) meets the requirements of subsection (q);';
(2) by striking the last sentence of subsection (c); and
(3) by adding at the end the following new subsection:
`(q)(1) A medicare supplemental policy or health insurance policy that
is an indemnity policy or a dread disease policy (as defined by the Secretary in
consultation with the National Association of Insurance Commissioners) may not
be issued or sold in any State unless--
`(A) the policy has returned (as determined for the most recent 3-y
ear period ending with the year in which the policy is issued or renewed, on the
basis of incurred claims experience and earned premiums for such periods and in
accordance with accepted actuarial principles and practices and standards devel
oped by the National Association of Insurance Commissioners) to policyholders in
the form of aggregate benefits provided under the policy, at least 75 percent o
f the aggregate amount of premiums collected in the case of group medicare suppl
emental policies, at least 70 percent in the case of individual medicare supplem
ental policies, and 60 percent in the case of group and individual health insura
nce policies that are indemnity policies or dread disease policies;
`(B) any premium increase (or the initial establishment of the prem
ium) is made in a manner consistent with paragraph (2); and
`(C) the issuer of the policy (i) annually submits to the State inf
ormation with respect to the actual ratio of aggregate benefits provided to aggr
egate premiums on forms conforming to those developed by the National Associatio
n of Insurance Commissioners for such purpose, and (ii) annually provides a prop
ortional credit, based on the premium paid and in accordance with paragraph (3),
of the amount of premiums received necessary to assure that the ratio of aggreg
ate benefits to the aggregate premiums collected (net of such credits) complies
with the requirement of subparagraph (A).
`(2) It is unlawful for an insurer to increase the premiums charged for
a medicare supplemental policy (or to issue a policy and charge premiums) unles
s--
`(A) the issuer has submitted to the State (at such time as the Sta
te may specify, but not earlier than 90 days in advance of such proposed effecti
ve date) the proposed premium amounts in advance of the proposed effective date
of the premiums; and
`(B) the issuer has included, as part of the submission under subpa
ragraph (B), information, certified as accurate by an actuary, that establishes
that the premium amounts are reasonable in relation to the benefits and that the
resulting ratio of benefits to premiums will meet the requirement specified in
paragraph (1)(A).
`(3)(A) Paragraph (1)(C) shall be applied with respect to each type of
policy by policy number. Paragraph (1)(C) shall not apply to a policy with respe
ct to the first 2 years in which it is in effect. The National Association of In
surance Commissioners is requested to submit to Congress a report containing rec
ommendations on adjustments in the percentages under paragraph (1)(A) that may b
e appropriate in order to apply paragraph (1)(C) to the first 2 years in which p
olicies are effective.
`(B) A credit required under paragraph (1)(C) shall be made to each ind
ividual who continues to be a policyholder or certificateholder not later than t
he first premium charged more than 6 months after the close of the year involved
. The total amount of such credits shall be sufficient to meet the requirement o
f paragraph (1)(A).
`(C) Such a credit shall include interest from the end of the policy ye
ar involved until the date of the credit at a rate, specified by the Secretary f
or this purpose from time to time, that is not less than the average rate of int
erest for 13-week Treasury notes.
`(4) The provisions of this subsection do not preempt a State from--
`(A) requiring a higher percentage than that specified in paragraph
(1)(A), or
`(B) requiring the review or approval of premiums not otherwise req
uired to be reviewed or approved under paragraph (2) or providing additional req
uirements for the approval of premiums.
`(5)(A) The Comptroller General shall periodically, not less often than
once every 3 years, perform audits with respect to the compliance of medicare s
upplemental policies with the requirements of paragraph (1) and shall report the
results of such audits to the State involved and to the Secretary.
`(B) The Secretary may independently perform such compliance audits.
`(6)(A) A person who issues or sells a policy in violation of paragraph
(1) is subject to a civil money penalty of not to exceed $25,000 for each such
violation. The provisions of section 1128A (other than the first sentence of sub
section (a) and other than subsection (b)) shall apply to a civil money penalty
under the previous sentence in the same manner as such provisions apply to a pen
alty or proceeding under section 1128A(a).
`(B) Each issuer of a policy subject to the requirements of paragraph (
1)(C) shall be liable to policyholders for credits required under such paragraph
.'.
(b) ASSURING ACCESS TO LOSS RATIO INFORMATION- Section 1882(b)(1)(C) of
such Act (42 U.S.C. 1395ss(b)(1)(C)) is amended by striking the semicolon at th
e end and inserting a comma and the following:
`and that a copy of each such policy, the most recent premium for eac
h such policy, and a listing of the ratio of benefits provided to premiums colle
cted for the most recent 3-year period for each such policy issued or sold in th
e State is maintained and made available to interested persons;'.
(c) EFFECTIVE DATE- The amendments made by this section shall apply to
policies sold or issued more than 1 year after the date of the enactment of this
Act.
SEC. 4305. LIMITATIONS ON CERTAIN SALES COMMISSIONS.
(a) IN GENERAL- Section 1882(d) of the Social Security Act is amended--
(A) by striking `and (4)(A)' and inserting `(4)(A), and (5)(A)'
, and
(B) by redesignating such paragraph as paragraph (6); and
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(2) by inserting after paragraph (4) the following new paragraph:
`(5)(A) It is unlawful for a person who provides for a commission or ot
her compensation to an agent or other representative with respect to the sale of
a medicare supplemental policy (or certificate)--
`(i) to provide for a first year commission or other first year com
pensation that exceeds 200 percent of the commission or other compensation for t
he selling or servicing of the policy or certificate in a second or subsequent y
ear, or
`(ii) to provide for compensation with respect to replacement of su
ch a policy or certificate that is greater than the compensation that would appl
y to the renewal of the policy or certificate.
Whoever violates the previous sentence shall be fined under title 18, Uni
ted States Code, or imprisoned not more than 5 years, or both, and, in addition
to or in lieu of such a criminal penalty, is subject to a civil money penalty of
not to exceed $25,000 for each such prohibited act.
`(B) In this paragraph the term `compensation' includes pecuniary and n
onpecuniary compensation of any kind relating to the sale or renewal of a policy
or certificate and specifically includes bonuses, gifts, prizes, awards, and fi
nders' fees.'.
(b) EFFECTIVE DATE- The amendments made by subsection (a) shall apply t
o compensation provided on or after 1 year after the date of the enactment of th
is Act.
SEC. 4306. CLARIFICATION OF TREATMENT OF PLANS OFFERED BY HEALTH MAINTENA
NCE ORGANIZATIONS.
(a) IN GENERAL- The first sentence of section 1882(g)(1) of the Social
Security Act is amended by inserting before the period at the end the following:
`and does not include a policy or plan of a health maintenance organization or
other direct service organization which offers benefits under this title, includ
ing such services under a contract under section 1833 or 1876'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall take eff
ect on the date of the enactment of this Act.
SEC. 4307. PROHIBITION OF CERTAIN DISCRIMINATORY PRACTICES.
(a) IN GENERAL- Section 1882(o) of the Social Security Act, as added by
section 4111(a)(2) of this Act, is amended by inserting after paragraph (4) the
following new paragraph:
`(5)(A) Except as provided in this paragraph, an entity that issues
medicare supplemental policies in a State shall offer any individual who is 65
years of age or older and who resides in the State, upon request of the individu
al made during the 6-month period beginning with the first month in which the in
dividual has attained such age and is enrolled under part B, the opportunity of
enrolling in a medicare supplemental policy which provides for a core group of b
asic benefits (described in subsection (p)(2)(B)(i)) and a medicare supplemental
policy which offers the group of benefits described in subsection (p)(2)(B)(ii)
, without conditioning the issuance or effectiveness of such a policy on, and wi
thout discriminating in the price of such a policy based on, the medical or heal
th status or the receipt of health care by the individual.
`(B)(i) Subject to clause (ii), paragraph (1) shall not be construe
d as preventing the exclusion of benefits under a policy, during its first 6 mon
ths, based on a pre-existing condition for which the policyholder received treat
ment or was otherwise diagnosed during the 6 months before it became effective.<
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`(ii) If a medicare supplemental policy or certificate replaces ano
ther such policy or certificate which has been in effect for 6 months or longer,
the replacing policy may not provide any time period applicable to pre-existing
conditions, waiting periods, elimination periods, and probationary periods in t
he new policy or certificate for similar benefits.'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall take eff
ect 1 year after the date of the enactment of this Act.
SEC. 4308. HEALTH INSURANCE ADVISORY SERVICE FOR MEDICARE BENEFICIARIES.<
/h3>
(a) IN GENERAL- The Secretary of Health and Human Services shall establ
ish a health insurance advisory service program (in this section referred to as
the `beneficiary assistance program') to assist medicare-eligible individuals wi
th the receipt of services under the medicare and medicaid programs and other he
alth insurance programs.
(b) OUTREACH ELEMENTS- The beneficiary assistance program shall provide
assistance--
(1) through operation using local Federal offices that provide info
rmation on the medicare program,
(2) using community outreach programs, and
(3) using a toll-free telephone information service.
(c) ASSISTANCE PROVIDED- The beneficiary assistance program shall prov
ide for information, counseling, and assistance for medicare-eligible individual
s with respect to at least the following:
(1) With respect to the medicare program--
(B) benefits (both covered and not covered),
(C) the process of payment for services,
(D) rights and process for appeals of determinations,
(E) other medicare-related entities (such as peer review organi
zations, fiscal intermediaries, and carriers), and
(F) recent legislative and administrative changes in the medica
re program.
(2) With respect to the medicaid program--
(A) eligibility, benefits, and the application process,
(B) linkages between the medicaid and medicare programs, and
(C) referral to appropriate State and local agencies involved i
n the medicaid program.
(3) With respect to medicare supplemental policies--
(A) the program under section 1882 of the Social Security Act a
nd standards required under such program,
(B) how to make informed decisions on whether to purchase such
policies and on what criteria to use in evaluating different policies,
(C) appropriate Federal, State, and private agencies that provi
de information and assistance in obtaining benefits under such policies, and
(D) other issues deemed appropriate by the Secretary.
The beneficiary assistance program also shall provide such other services
as the Secretary deems appropriate to increase beneficiary understanding of, an
d confidence in, the medicare program and to improve the relationship between be
neficiaries and the program.
(d) EDUCATIONAL MATERIAL- The Secretary, through the Administrator of t
he Health Care Financing Administration, shall develop appropriate educational m
aterials and other appropriate techniques to assist employees in carrying out th
is section.
(e) NOTICE TO BENEFICIARIES- The Secretary shall take such steps as are
necessary to assure that medicare-eligible beneficiaries and the general public
are made aware of the beneficiary assistance program.
(f) REPORT- The Secretary shall include, in an annual report transmitte
d to the Congress, a report on the beneficiary assistance program and on other h
ealth insurance informational and counseling services made available to medicare
-eligible individuals. The Secretary shall include in the report recommendations
for such changes as may be desirable to improve the relationship between the me
dicare program and medicare-eligible individuals.
SEC. 4309. ADDITIONAL ENFORCEMENT THROUGH PUBLIC HEALTH SERVICE ACT.
(a) IN GENERAL- The Public Health Service Act (42 U.S.C. 201 et seq.) i
s amended--
(1) by redesignating title XXVII as title XXVIII;
(2) by redesignating sections 2701 through 2714 as sections 2801 th
rough 2814, respectively; and
(3) by inserting after title XXV the following new title:
`TITLE XXVII--ENFORCEMENT OF CERTAIN HEALTH INSURANCE STANDARDS
`SEC. 2701. ENFORCEMENT OF CERTAIN HEALTH INSURANCE STANDARDS.
`(a) ENFORCEMENT OF UNDERWRITING- A person that fails to meet the requi
rements of section 1882(o)(5) of the Social Security Act (relating to discrimina
tory practices) is subject to a civil money penalty of not to exceed $25,000 for
each such violation. The provisions of section 1128A of the Social Security Act
(other than the first sentence of subsection (a) and other than subsection (b))
shall apply to a civil money penalty under the previous sentence in the same ma
nner as such provisions apply to a penalty or proceeding under section 1128A(a)
of such Act.
`(b) ENFORCEMENT OF LOSS-RATIO REQUIREMENTS- A person who issues or sel
ls a medicare supplemental policy or a health insurance policy that is an indemn
ity or dread disease policy (as defined by the Secretary of Health and Human Ser
vices under section 1882(q)(1) of the Social Security Act) in violation of such
section is subject to a civil money penalty of not to exceed $25,000 for each su
ch violation. The provisions of section 1128A of the Social Security Act (other
than the first sentence of subsection (a) and other than subsection (b)) shall a
pply to a civil money penalty under the previous sentence in the same manner as
such provisions apply to a penalty or proceeding under section 1128A(a) of such
Act.
`(c) ENFORCEMENT OF LIMITATIONS ON SALES COMMISSIONS- Whoever violates
section 1882(o)(5)(A) of the Social Security Act (relating to sales commissions)
shall be fined under title 18, United States Code, or imprisoned not more than
5 years, or both, and, in addition to or in lieu of such a criminal penalty, is
subject to a civil money penalty of not to exceed $25,000 for each prohibited ac
t under such section.'.
(b) TECHNICAL AND CONFORMING AMENDMENTS- The Public Health Service
Act (42 U.S.C. 201 et seq.) is further amended--
(1) in section 406(a)(2), by striking `2701' and inserting `2801';<
/ul>
(2) in section 465(f), by striking `2701' and inserting `2801';
(3) in section 480(a)(2), by striking `2701' and inserting `2801';<
/ul>
(4) in section 485(a)(2), by striking `2701' and inserting `2801';<
/ul>
(5) in section 497, by striking `2701' and inserting `2801';
(6) in section 505(a)(2), by striking `2701' and inserting `2801';
and
(7) in section 926(b), by striking `2711' each place such term appe
ars and inserting `2811'.
Subtitle B--Medicaid Program
PART 1--REDUCTIONS IN SPENDING
SEC. 4401. REIMBURSEMENT FOR PRESCRIBED DRUGS.
(1) DENIAL OF FEDERAL FINANCIAL PARTICIPATION UNLESS REBATE AGREEME
NTS AND DRUG USE REVIEW IN EFFECT- Section 1903(i) of the Social Security Act (4
2 U.S.C. 1396b(i)) is amended--
(A) by striking the period at the end of paragraph (9) and inse
rting `; or', and
(B) by inserting after paragraph (9) the following new paragrap
h:
`(10) with respect to covered outpatient drugs of a manufacturer di
spensed in any of the 50 States or the District of Columbia unless, except as pr
ovided in section 1927(a)(3), the manufacturer complies in all such States and D
istrict with the rebate requirements of section 1927(a) with respect to the drug
s so dispensed.'.
(2) STATE PLAN DRUG ACCESS LIMITATIONS FOR DRUGS COVERED UNDER A RE
BATE AGREEMENT- Section 1902(a) of such Act (42 U.S.C. 1396a(a)) is amended--
(A) by striking `and' at the end of paragraph (52),
(B) by striking the period at the end of paragraph (53) and ins
erting `; and', and
(C) by inserting after paragraph (53) the following new paragra
ph:
`(54)(A) provide that, in the case of a manufacturer which has ente
red into and complies with an agreement under section 1927(a), the plan shall pe
rmit the coverage of covered outpatient drugs of the manufacturer which are pres
cribed (on or after April 1, 1991) for a medically accepted indication (as defin
ed in section 1927(f)(6)),
`(B) comply with the reporting requirements of section 1927(b)(2)(A
) and the requirements of section 1927(d), and
`(C) effective January 1, 1993, provide for drug use review in acco
rdance with section 1927(d). '.
(3) REBATE AGREEMENTS FOR COVERED OUTPATIENT DRUGS, DRUG USE REVIEW
, AND RELATED PROVISIONS- Title XIX of the Social Security Act is amended by red
esignating section 1927 as section 1928 and by inserting after section 1926 the
following new section:
`PAYMENT FOR PRESCRIBED DRUGS
`SEC. 1927. (a) REQUIREMENT FOR REBATE AGREEMENT-
`(1) IN GENERAL- In order for payment to be available under section
1903(a) for covered outpatient drugs of a manufacturer, the manufacturer must h
ave entered into and have in effect a rebate agreement described in subsection (
b) with the Secretary, on behalf of all the States. If a manufacturer has not en
tered into such an agreement before February 1, 1991, such an agreement, subsequ
ently entered into, shall not be effective until the first day of the calendar q
uarter that begins more than 60 days after the date the agreement is entered int
o.
`(2) EFFECTIVE DATE- Paragraph (1) shall first apply to drugs dispe
nsed under this title on or after February 1, 1991, except that and any agreemen
t entered into under this section on or before February 1, 1991, shall be effect
ive with respect to drugs dispensed on or after January 1, 1991.
`(3) EFFECT ON EXISTING AGREEMENTS- In the case of a rebate agreeme
nt in effect between a State and a manufacturer on October 1, 1990, such agreeme
nt may remain in effect, and shall be considered to be a rebate agreement in com
pliance with this section with respect to that State, if the State establishes t
o the satisfaction of the Secretary that the agreement can reasonably be expecte
d to provide in any 12-month period for rebates that are at least as large as th
e rebates otherwise required under this section.
`(4) APPLICATION IN CERTAIN STATES AND TERRITORIES-
`(A) APPLICATION IN STATES OPERATING UNDER DEMONSTRATION PROJEC
TS- In the case of any State which is providing medical assistance to its reside
nts under a waiver granted under section 1115, the Secretary shall require the S
tate to meet the requirements of section 1902(a)(54) and of this section in the
same manner as the State would be required to meet such requirement if the State
had in effect a plan approved under this title.
`(B) NO APPLICATION IN COMMONWEALTHS AND TERRITORIES- This sect
ion, and sections 1902(a)(54) and 1903(i)(10), shall only apply to a State that
is one of the 50 States or the District of Columbia.
`(b) TERMS OF REBATE AGREEMENT-
`(i) In general- A rebate agreement under this subsection s
hall require the manufacturer to provide, to each State plan approved under this
title, a rebate each calendar quarter in the amount specified in subsection (c)
for covered outpatient drugs of the manufacturer dispensed under the plan durin
g the quarter. Except as provided in clause (ii), such a rebate shall be paid to
each State by the manufacturer not later than 30 days after the date of receipt
of the information described in paragraph (2) for that quarter.
<
/ul>
`(ii) SPECIAL PAYMENT RULE FOR THE CALENDAR QUARTER BEGINNI
NG JULY 1, 1991- With respect to the calendar quarter beginning July 1, 1991, su
ch a rebate shall be paid to each State by the manufacturer by not later than Se
ptember 30, 1991, based on the amount of the rebate payable by the manufacturer
for the previous quarter. The amount of the rebate payment for the quarter begin
ning October 1, 1991, shall be increased or decreased to the extent that the reb
ate payment for the quarter beginning July 1, 1991, was less than, or exceeded,
the amount of the rebate otherwise required to be made under the agreement witho
ut regard to this clause.
`(B) OFFSET AGAINST MEDICAL ASSISTANCE- Amounts received by a S
tate as rebates under this section in any quarter shall be considered to be a re
duction in the amount expended under the State plan in the quarter for medical a
ssistance for purposes of section 1903(a)(1).
`(2) STATE PROVISION OF INFORMATION-
`(A) STATE RESPONSIBILITY- Each State agency under this title s
hall report to the Secretary, not later than 60 days after the end of each calen
dar quarter and in a form consistent with a standard reporting format establishe
d by the Secretary, information on the total number of units of each dosage form
and strength of each covered outpatient drug of a manufacturer dispensed under
the plan during the quarter, and shall promptly transmit such information to the
manufacturer.
`(B) AUDIT BY MANUFACTURERS- A manufacturer has the right to au
dit only such data of the States as are reasonably necessary to verify informati
on provided (or required to be provided) under subparagraph (A). Adjustments to
rebates shall be made to the extent that information indicates that utilization
was greater or less than the amount previously specified.
`(C) NOTICE TO SECRETARY- Each State agency shall notify the Se
cretary within 30 days after the date each rebate is received under this section
.
`(3) MANUFACTURER PROVISION OF PRICE INFORMATION-
`(A) IN GENERAL- Each manufacturer with an agreement in effect
under this section shall report to the Secretary (and make available upon reques
t to each State agency)--
`(i) not later than 30 days after the last day of each quar
ter (beginning on or after April 1, 1991), on the average manufacturer price (as
defined in subsection (f)(1)) and (for single source drugs and innovator multip
le source drugs) the manufacturer's best price (as defined in subsection (c)(3)(
A)) for covered outpatient drugs for the quarter, and
`(ii) not later than 30 days after the date of entering int
o an agreement under this section on the best price (as defined in subsection (c
)(3)(B)) as of September 1, 1990 for each of the manufacturer's covered outpatie
nt drugs.
`(B) VERIFICATION SURVEYS OF AVERAGE MANUFACTURER PRICE- The Se
cretary may survey wholesalers and manufacturers that directly distribute their
covered outpatient drugs, when necessary to verify average manufacturer prices r
eported under subparagraph (A). The Secretary may impose a civil monetary penalt
y in an amount not to exceed $10,000 on a wholesaler, manufacturer, or direct se
ller, if the wholesaler, manufacturer, or direct seller of a covered outpatient
drug refuses a written request for information about charges or prices by the Se
cretary in connection with a survey authorized under this subparagraph or knowin
gly provides false information in response to such a request. The provisions of
section 1128A (other than subsections (a) and (b)) shall apply to a civil money
penalty under this subparagraph in the same manner as such provisions apply to a
penalty or proceeding under section 1128A(a).
`(i) FAILURE TO PROVIDE TIMELY INFORMATION- If a manufactur
er with an agreement under this section fails to provide information required un
der subparagraph (A) on a timely basis, the amount of the rebates next required
to be paid for a calendar quarter under the agreement shall be increased by 2 pe
rcent, and, if such information is not reported within 90 days of the deadline i
mposed, the agreement shall be suspended for services furnished after the end of
such 90-day period and until the date such information is reported (but in no c
ase shall such suspension be for a period of less than 30 days).
<
/ul>
`(ii) FALSE INFORMATION- Any manufacturer with an agreement
under this section that knowingly provides false information to the Secretary u
nder this paragraph is subject to a civil money penalty in an amount not to exce
ed $100,000 for each item of false information. Such civil money penalties are i
n addition to other penalties as may be prescribed by law (including exclusion u
nder section 1128(b)(11)). The provisions of section 1128A (other than subsectio
ns (a) and (b)) shall apply to a civil money penalty under this subparagraph in
the same manner as such provisions apply to a penalty or proceeding under sectio
n 1128A(a).
`(D) CONFIDENTIALITY OF INFORMATION- Information disclosed by m
anufacturers or wholesalers under subparagraph (A) or (B) is confidential and sh
all not be disclosed by the Secretary or a State agency (or contractor therewith
) in a form which discloses the identity of a specific manufacturer, wholesaler,
or product, except as the Secretary determines to be necessary to carry out thi
s section and to permit the Comptroller General and the Inspector General of the
Department to review the information provided.
`(4) LENGTH OF AGREEMENT-
`(A) IN GENERAL- A rebate agreement shall be effective for an i
nitial period of 1 year and shall be automatically renewed for an additional 1-y
ear period unless terminated under subparagraph (B).
`(i) BY THE SECRETARY- The Secretary may provide for termin
ation of a rebate agreement for violation of the requirements of the agreement.
Such termination shall not be effective earlier than 60 days after the date of n
otice of such termination. The Secretary shall provide, upon request, a manufact
urer with a hearing concerning such a termination, but such hearing shall not de
lay the effective date of the termination.
`(ii) BY A MANUFACTURER- A manufacturer may terminate a reb
ate agreement under this section for any reason. Any such termination shall not
be effective until such period (of not more than 1 year, specified by the Secret
ary in regulation) after the date of the manufacturer provides notice of such te
rmination to the Secretary.
`(iii) EFFECTIVENESS OF TERMINATION- Any termination under
this subparagraph shall not affect rebates due under the agreement before the ef
fective date of its termination.
`(C) DELAY BEFORE REENTRY- In the case of any rebate agreement
with a manufacturer under this section which is terminated, a new such agreement
with the manufacturer (or a successor manufacturer) may not be entered into unt
il a period of 1 year has elapsed since the date of the termination, unless the
Secretary finds good cause for an earlier reinstatement of such an agreement.
`(A) SINGLE SOURCE DRUGS AND INNOVATOR MULTIPLE SOURCE DRUGS- E
xcept as provided in this subsection and subsection (b)(3)(C)(i), the amount of
the rebate to a State during a calendar quarter with respect to single source dr
ugs and innovator multiple source drugs shall be equal to the product of--
<
/ul>
`(i) the amount by which (I) the average manufacturer price
to wholesalers during the quarter for each dosage form and strength of a covere
d outpatient drug, exceeds (II) the manufacturer's best price (as defined in par
agraph (3)) for such form and strength; and
`(ii) the number of units of such form and strength dispens
ed under the plan under this title in the State in the quarter (as reported by t
he State under subsection (b)(2)).
`(B) OTHER DRUGS- Except as provided in subsection (b)(3)(C)(i)
, the amount of the rebate to a State during a calendar quarter with respect to
covered outpatient drugs (other than single source drugs and innovator multiple
source drugs) shall be equal to the product of--
`(i) 10 percent of the average manufacturer price to wholes
alers during the quarter for each dosage form and strength of a covered outpatie
nt drug (after deducting customary prompt payment discounts); and
`(ii) the number of units of such form and dosage dispensed
under the plan under this title in the State in the quarter (as reported by the
State under subsection (b)(2).
`(2) MINIMUM AND MAXIMUM REBATE RATES FOR SINGLE SOURCE DRUGS AND I
NNOVATOR MULTIPLE SOURCE DRUGS- In no case shall the amount of the rebate descri
bed in paragraph (1)(A) for a manufacturer for a calendar quarter with respect t
o single source drugs and innovator multiple source drugs--
`(A) be less than 10 percent, or
`(B) for calendar quarters beginning before April 1, 1995, be m
ore than--
`(i) 25 percent (for each quarter during the 8-calendar-qua
rter period beginning April 1, 1991), or
`(ii)) 50 percent (for each quarter during the 8-calendar-q
uarter period beginning April 1, 1993),
of the product of the price described in paragraph (1)(A)(i)(I) a
nd the number of units described in paragraph (1)(A)(ii) for the quarter.
`(A) IN GENERAL- In this subsection, the term `best price' mean
s, for a covered outpatient drug of a manufacturer dispensed in a calendar quart
er--
`(i) the lowest price available for the drug from the manuf
acturer to any wholesaler, retailer, provider, nonprofit entity, or governmental
entity within the United States during the quarter, or
`(ii) the lowest price in effect for the drug from the manu
facturer to any wholesaler, retailer, provider, nonprofit entity, or governmenta
l entity within the United States in effect on September 1, 1990, increased (for
calendar quarters beginning on or after January 1, 1991) by the percentage incr
ease in the Consumer Price Index for All Urban Consumers (all items; U.S. city a
verage) from September 1990 to the month before the beginning of the calendar qu
arter involved,
`(B) TREATMENT OF NEW DRUGS- In the case of a covered outpatien
t drug approved for marketing after September 1, 1990, any reference in subparag
raph (A)(ii) to `September 1, 1990' or `September 1990' shall be a reference to
the first day of the first month, and the first month, respectively, during whic
h the drug was marketed and any reference in subsection (b)(3)(A)(ii) to `30 day
s after the date of entering into an agreement under this section on the best pr
ice described in paragraph (3)(B) as of September 1, 1990' shall be a reference
to `30 days after the date the drug is first marketed in the United States'.
`(C) COMPUTATION OF LOWEST PRICE- The lowest price described in
this paragraph shall be inclusive of cash discounts, free goods, volume discoun
ts, and rebates, shall be determined without regard to special packaging, labeli
ng, or identifiers on the dosage form or product or package, and shall not take
into account prices that are merely nominal in amount.
`(1) IN GENERAL- In order to meet the requirement of section 1902(a
)(54)(C), a State shall provide, by not later than January 1, 1993, for a drug u
se review program described in paragraph (2) for covered outpatient drugs (other
than psychopharmacologic drugs described in section 1919(c)(2)(D) dispensed to
residents of nursing facilities) in order to assure, in accordance with any guid
elines developed by the Agency for Health Care Policy and Research, that prescri
ptions (A) are appropriate and (B) are medically necessary.
`(2) DESCRIPTION OF PROGRAM- Each drug use review program shall mee
t the following requirements for covered outpatient drugs and other prescription
drugs for which payment may be made under this title:
`(A) PROSPECTIVE DRUG REVIEW- The State plan shall provide for
a review of drug therapy before each prescription is filled or delivered to the
patient, typically at the point-of-sale or point-of-distribution. Each pharmacis
t shall use the compendia (referred to in subsection (f)(6)) as the pharmacist's
source of standards for such review.
`(B) RETROSPECTIVE DRUG USE REVIEW- The program shall provide,
through its mechanized drug claims processing and information retrieval systems
(approved by the Secretary under section 1903(r)) or otherwise, for the periodic
examination of claims data and other records in order to identify patterns of f
raud, abuse, gross overuse or underuse, or inappropriate or medically unnecessar
y care, among physicians, pharmacies, and patients, or associated with specific
drugs or groups of drugs.
`(C) EDUCATIONAL PROGRAM- The program shall educate physicians
and pharmacists to identify and reduce the frequency of patterns of fraud, abuse
, gross overuse or underuse, or inappropriate or medically unnecessary care, amo
ng physicians, pharmacies, and patients, or associated with specific drugs or gr
oups of drugs, as well as potential and actual severe adverse reactions to drugs
.
`(1) LIMITATIONS ON COVERAGE OF OUTPATIENT DRUGS- Nothing in sectio
n 1902(a)(54)(A) shall be construed as preventing a State from restricting the a
mount, duration, and scope of coverage of covered outpatient drugs consistent wi
th section 1902(a)(30).
`(2) RELATION TO MAXIMUM ALLOWABLE COST LIMITATIONS- This section s
hall not supercede or affect provisions relating to maximum allowable cost limit
ations for payment by States for covered outpatient drugs, and rebates under thi
s section shall be made without regard to whether or not payment by the State fo
r such drugs are subject to such limitations or the amount of such cost limitati
ons.
`(3) EXCLUSION OF CERTAIN DRUG ASSOCIATED WITH EXCLUSIVE PATIENT MO
NITORING SERVICES- Nothing in this title shall be construed as requiring a State
to provide medical assistance for covered outpatient drugs of a manufacturer wh
ich requires, as a condition for the purchase of the drugs, that the manufacture
r be paid for associated services or tests (such as patient monitoring systems)
provided only by the manufacturer or its designee.
`(f) DEFINITIONS- In this section:
`(1) AVERAGE MANUFACTURER PRICE- The term `average manufacturer pri
ce' means, with respect to a covered outpatient drug of a manufacturer for a cal
endar quarter, the average price paid (taking into account customary prompt paym
ent discounts) to the manufacturer for the drug by retail pharmacies or by whole
salers for drugs distributed to the retail pharmacy class of trade.
`(2) COVERED OUTPATIENT DRUG- Subject to the exceptions in paragrap
h (3), the term `covered outpatient drug' means--
`(A) of those drugs which are treated as prescribed drugs for p
urposes of section 1905(a)(12), a drug which may be dispensed only upon prescrip
tion (except as provided in paragraph (4)), and--
`(i) which is approved as a prescription drug under section
s 505 or 507 of the Federal Food, Drug, and Cosmetic Act;
`(ii)(I) which was commercially used or sold in the United
States before the date of the enactment of the Federal Food, Drug, and Cosmetic
Act and if at such time its labeling contained the same representations concerni
ng its conditions of use as in its current labeling, or which is identical, simi
lar, or related (within the meaning of section 310.6(b)(1) of title 21 of the Co
de of Federal Regulations) to such a drug, and (II) which has not been the subje
ct of a final determination by the Secretary that it is a `new drug' (within the
meaning of section 201(p) of the Federal Food, Drug, and Cosmetic Act) or an ac
tion brought by the Secretary under sections 301, 302(a), or 304(a) of such Act
to enforce sections 502(f) or 505(a) of such Act; or
`(iii)(I) which is described in section 107(c)(3) of the Dr
ug Amendments of 1962 and for which the Secretary has determined there is a comp
elling justification for its medical need, or is identical, similar, or related
(within the meaning of section 310.6(b)(1) of title 21 of the Code of Federal Re
gulations) to such a drug, and (II) for which the Secretary has not issued a not
ice of an opportunity for a hearing under section 505(e) of the Federal Food, Dr
ug, and Cosmetic Act on a proposed order of the Secretary to withdraw approval o
f an application for such drug under such section because the Secretary has dete
rmined that the drug is less than effective for all conditions of use prescribed
, recommended, or suggested in its labeling;
`(B) a biological product which--
`(i) may only be dispensed upon prescription,
`(ii) is licensed under section 351 of the Public Health Se
rvice Act, and
`(iii) is produced at an establishment licensed under such
section to produce such product; and
`(C) insulin certified under section 506 of the Federal Food, D
rug, and Cosmetic Act.
`(3) LIMITING DEFINITION- The term `covered outpatient drug' does n
ot include any drug, biological product, or insulin provided as part of, or as i
ncident to, and in the same setting as, any of the following (and for which paym
ent is made under this title as part of payment for the following and not as dir
ect reimbursement for the drug):
`(A) Inpatient hospital services.
`(C) Dental services, except that drugs for which the State pla
n authorizes direct reimbursement to the dispensing dentist are covered outpatie
nt drugs.
`(D) Physician office visits.
`(E) Outpatient hospital emergency room visits.
`(F) Outpatient surgical procedures.
`(4) NONPRESCRIPTION DRUGS- If a State plan for medical assistance
under this title includes coverage of prescribed drugs as described in section 1
905(a)(12) and permits coverage of drugs which may be sold without a prescriptio
n (commonly referred to as `over-the-counter' drugs), if they are prescribed by
a physician (or other person authorized to prescribe under State law), such a dr
ug may be regarded as a covered outpatient drug.
`(5) MANUFACTURER- The term `manufacturer' means, with respect to a
covered outpatient drug,--
`(A) the entity (if any) that both manufactures and distributes
the drug, or
`(B) if no such entity exists, the entity that distributes the
drug.
Such term does not include a wholesale distributor of the drug or a r
etail pharmacy licensed under State law.
`(6) MEDICALLY ACCEPTED INDICATION- The term `medically accepted in
dication' means any use for a covered outpatient drug which is approved under th
e Federal Food, Drug, and Cosmetic Act or which is accepted by one or more of th
e following compendia: the American Hospital Formulary Service-Drug Information,
the American Medical Association Drug Evaluations, and the United States Pharma
copeia-Drug Information.
`(7) MULTIPLE SOURCE DRUG; INNOVATOR MULTIPLE SOURCE DRUG; NONINNOV
ATOR MULTIPLE SOURCE DRUG; SINGLE SOURCE DRUG-
`(i) MULTIPLE SOURCE DRUG- The term `multiple source drug'
means, with respect to a calendar quarter, a covered outpatient drug (not includ
ing any drug described in paragraph (4)) for which there are 2 or more drug prod
ucts which--
`(I) are rated as therapeutically equivalent (under the
Food and Drug Administration's most recent publication of `Approved Drug Produc
ts with Therapeutic Equivalence Evaluations'),
`(II) except as provided in subparagraph (B), are pharm
aceutically equivalent and bioequivalent, as defined in subparagraph (C) and as
determined by the Food and Drug Administration, and
`(III) are sold or marketed in the State during the per
iod.
`(ii) INNOVATOR MULTIPLE SOURCE DRUG- The term `innovator m
ultiple source drug' means a multiple source drug that was originally marketed u
nder an original new drug application approved by the Food and Drug Administrati
on.
`(iii) NONINNOVATOR MULTIPLE SOURCE DRUG- The term `noninno
vator multiple source drug' means a multiple source drug that is not an innovato
r multiple source drug.
`(iv) SINGLE SOURCE DRUG- The term `single source drug' mea
ns a covered outpatient drug which is not a multiple source drug.
`(B) EXCEPTION- Subparagraph (A)(i)(II) shall not apply if the
Food and Drug Administration changes by regulation (after an opportunity for pub
lic comment of 90 days) the requirement that, for purposes of the publication de
scribed in subparagraph (A)(i)(I), in order for drug products to be rated as the
rapeutically equivalent, they must be pharmaceutically equivalent and bioequival
ent, as defined in subparagraph (C).
`(C) DEFINITIONS- For purposes of this paragraph--
`(i) drug products are pharmaceutically equivalent if the p
roducts contain identical amounts of the same active drug ingredient in the same
dosage form and meet compendial or other applicable standards of strength, qual
ity, purity, and identity;
`(ii) drugs are bioequivalent if they do not present a know
n or potential bioequivalence problem, or, if they do present such a problem, th
ey are shown to meet an appropriate standard of bioequivalence; and
`(iii) a drug product is considered to be sold or marketed
in a State if it appears in a published national listing of average wholesale pr
ices selected by the Secretary, provided that the listed product is generally av
ailable to the public through retail pharmacies in that State.
`(8) STATE AGENCY- The term `State agency' means the agency designa
ted under section 1902(a)(5) to administer or supervise the administration of th
e State plan for medical assistance.'.
(1) DRUG USE REVIEW PROGRAMS- Section 1903(a)(3) of such Act (42 U.
S.C. 1396b(a)(3)) is amended--
(A) by striking `plus' at the end of subparagraph (C) and inser
ting `and', and
(B) by adding at the end the following new subparagraph:
`(D) 75 percent of so much of the sums expended by the State pl
an during a quarter in 1991, 1992, or 1993, as the Secretary determines is attri
butable to the statewide adoption of a drug use review program which conforms to
the requirements of section 1927(e); plus'.
(2) TEMPORARY INCREASE IN FEDERAL MATCH FOR ADMINISTRATIVE COSTS- T
he per centum to be applied under section 1903(a)(7) of the Social Security Act
for amounts expended during calendar quarters in fiscal year 1991 which are attr
ibutable to administrative activities necessary to carry out section 1927 (other
than subsection (d)) of such Act shall be 75 percent, rather than 50 per centum
.
SEC. 4402. REQUIRING MEDICAID PAYMENT OF PREMIUMS AND COST-SHARING FOR EN
ROLLMENT UNDER GROUP HEALTH PLANS WHERE COST-EFFECTIVE.
(a) IN GENERAL- Title XIX of the Social Security Act is amended--
(1) in section 1902(a)(25) (42 U.S.C. 1396a(a)(25))--
(A) by striking `and' at the end of subparagraph (E),
(B) by adding `and' at the end of subparagraph (F), and
(C) by adding at the end the following new subparagraph:
`(G) that the State plan shall meet the requirements of section
1906 (relating to enrollment of individuals under group health plans in certain
cases);'; and
(2) by inserting after section 1905 the following new section:
`ENROLLMENT OF INDIVIDUALS UNDER GROUP HEALTH PLANS
`SEC. 1906. (a) For purposes of section 1902(a)(25)(G) and subject to s
ubsection (d), each State plan--
`(1) shall establish guidelines, consistent with subsection (b), to
identify those cases in which enrollment of an individual otherwise entitled to
medical assistance under this title in a group health plan (in which the indivi
dual is otherwise eligible to be enrolled) is cost-effective (as defined in subs
ection (e)(2));
`(2) shall require, in case of an individual so identified and as a
condition of the individual being or remaining eligible for medical assistance
under this title and subject to subsection (b)(2), notwithstanding any other pro
vision of this title, that the individual (or in the case of a child, the child'
s parent) apply for enrollment in the group health plan; and
`(3) in the case of such enrollment, shall provide for payment of a
ll enrollee premiums for such enrollment and all deductibles, coinsurance, and s
imilar costs for items and services otherwise covered under the State plan under
this title (exceeding the amount otherwise permitted under section 1916), and s
hall treat coverage under the group health plan as a third party liability (unde
r section 1902(a)(25)).
`(b)(1) In establishing guidelines under subsection (a)(1), each State
shall take into account that an individual may only be eligible to enroll in gro
up health plans at limited times and only if other individuals (not entitled to
medical assistance under the plan) are also enrolled in the plan simultaneously.
`(2) If a parent of a child fails to enroll the child in a group health
plan in accordance with subsection (a)(2), such failure shall not affect the ch
ild's eligibility for benefits under this title.
`(c)(1)(A) In the case of payments of premiums, deductibles, coinsuranc
e, and similar expenses under this section shall be considered, for purposes of
section 1903(a), to be payments for medical assistance.
`(B) If all members of a family are not eligible for medical assistance
under this title and enrollment of the members so eligible in a group health pl
an is not possible without also enrolling members not so eligible--
`(i) payment of premiums for enrollment of such other members shall
be treated as payments for medical assistance for eligible individuals, if it w
ould be cost-effective (taking into account payment of all such premiums), but
`(ii) payment of deductibles, coinsurance, and similar expenses for
such other members shall not be treated as payments for medical assistance for
eligible individuals.
`(2) In the case of a hospital, physician, or other provider that provi
des care covered under the State plan under a group health plan in which an indi
vidual entitled to medical assistance for such care is enrolled under this secti
on, the provider is deemed to have agreed--
`(A) to accept as payment in full the payment amount recognized und
er the State plan (or, if greater, the payment amount provided under the plan),
and
`(B) not to charge the individual or the State any amounts that wou
ld result in aggregate payment (including payments under the plan) exceeding the
payment amount so recognized under the State plan.
`(3) The fact that an individual is enrolled in a group health plan und
er this section shall not change the individual's eligibility for benefits under
the State plan, except insofar as section 1902(a)(25) provides that payment for
such benefits shall first be made by such plan.
`(d)(1) Any different benefits made available, through enrollment under
this section, to eligible individuals shall not, by reason of section 1902(a)(1
0), require such benefits be made available to other individuals.
`(2)(A) In the case of any State which is providing medical assistance
to its residents under a waiver granted under section 1115, the Secretary shall
require the State to meet the requirements of this section in the same manner as
the State would be required to meet such requirement if the State had in effect
a plan approved under this title.
`(B) This section, and section 1902(a)(25)(G), shall only apply to a St
ate that is one of the 50 States or the District of Columbia.
`(1) The term `group health plan' has the meaning given such term i
n section 5000(b)(1) of the Internal Revenue Code of 1986, and includes the prov
ision of continuation coverage by such a plan pursuant to title XXII of the Publ
ic Health Service Act, section 4980B of the Internal Revenue Code of 1986, or ti
tle VI of the Employee Retirement Income Security Act of 1974.
`(2) The term `cost-effective' means that the reduction in expendit
ures under this title with respect to an individual who is enrolled in a group h
ealth plan is likely to be greater than the additional expenditures for premiums
and cost-sharing required under this section with respect to such enrollment.'.
(b) TREATMENT OF ERRONEOUS EXCESS PAYMENTS FOR MEDICAL ASSISTANCE- Sect
ion 1903(u)(1)(C)(iv) of such Act (42 U.S.C. 1396b(u)(1)(C)) is amended by inser
ting before the period at the end the following: `or with respect to payments ma
de in violation of section 1906'.
(c) OPTIONAL MINIMUM 6-MONTH ELIGIBILITY- Section 1902(e) of such Act (
42 U.S.C. 1396a(e)) is amended by adding at the end the following new subsection
:
`(11)(A) In the case of an individual who is enrolled with a group heal
th plan under section 1906 and who would (but for this paragraph) lose eligibili
ty for benefits under this title before the end of the minimum enrollment period
(defined in subparagraph (B)), the State plan may provide, notwithstanding any
other provision of this title, that the individual shall be deemed to continue t
o be eligible for such benefits until the end of such minimum period, but only w
ith respect to such benefits provided to the individual as an enrollee of such p
lan.
`(B) For purposes of subparagraph (A), the term `minimum enrollment per
iod' means, with respect to an individual's enrollment with a group health plan,
a period established by the State, of not more than 6 months beginning on the d
ate the individual's enrollment under the plan becomes effective.'.
(d) CONFORMING AMENDMENTS-
(1) Section 1905(a) of the Social Security Act (42 U.S.C. 1396d(a))
is amended by adding at the end the following: `The payment described in the fi
rst sentence may include expenditures for medicare cost-sharing and for premiums
under part B of title XVIII for individuals who are eligible for medical assist
ance under the plan and (A) are receiving aid or assistance under any plan of th
e State approved under title I, X, XIV, or XVI, or part A of title IV, or with r
espect to whom supplemental security income benefits are being paid under title
XVI, or (B) with respect to whom there is being paid a State supplementary payme
nt and are eligible for medical assistance equal in amount, duration, and scope
to the medical assistance made available to individuals described in section 190
2(a)(10)(A), and, except in the case of individuals 65 years of age or older and
disabled individuals entitled to health insurance benefits under title XVIII wh
o are not enrolled under part B of title XVIII, other insurance premiums for med
ical or any other type of remedial care or the cost thereof.'.
(2) Section 1903(a)(1) of such Act (42 U.S.C. 1396b(a)(1)) is amend
ed by striking `(including expenditures for' and all that follows through `or th
e cost thereof)'.
(e) EFFECTIVE DATE- (1) The amendments made by this section apply (exce
pt as provided under paragraph (2)) to payments under title XIX of the Social Se
curity Act for calendar quarters beginning on or after January 1, 1991, without
regard to whether or not final regulations to carry out such amendments have bee
n promulgated by such date.
(2) In the case of a State plan for medical assistance under title XIX
of the Social Security Act which the Secretary of Health and Human Services dete
rmines requires State legislation (other than legislation authorizing or appropr
iating funds) in order for the plan to meet the additional requirements imposed
by the amendments made by subsection (a), the State plan shall not be regarded a
s failing to comply with the requirements of such title solely on the basis of i
ts failure to meet this additional requirement before the first day of the first
calendar quarter beginning after the close of the first regular session of the
State legislature that begins after the date of the enactment of this Act. For p
urposes of the previous sentence, in the case of a State that has a 2-year legis
lative session, each year of such session shall be deemed to be a separate regul
ar session of the State legislature.
SEC. 4403. COMPUTER MATCHING AND PRIVACY REVISIONS.
(a) VERIFICATION REQUIREMENTS- Subsection (p) of section 552a of title
5, United States Code, is amended to read as follows:
`(p) VERIFICATION AND OPPORTUNITY TO CONTEST FINDINGS- (1) In order to
protect any individual whose records are used in a matching program, no recipien
t agency, non-Federal agency, or source agency may suspend, terminate, reduce, o
r make a final denial of any financial assistance or payment under a Federal ben
efit program to such individual, or take other adverse action against such indiv
idual, as a result of information produced by such matching program, until--
`(A)(i) the agency has independently verified the information; or
`(ii) the Data Integrity Board of the agency, or in the case of a n
on-Federal agency the Data Integrity Board of the source agency, determines in a
ccordance with guidance issued by the Director of the Office of Management and B
udget that--
`(I) the information is limited to identification and amount of
benefits paid by the source agency under a Federal benefit program; and
`(II) there is a high degree of confidence that the information
provided to the recipient agency is accurate;
`(B) the individual receives a notice from the agency containing a
statement of its findings and informing the individual of the opportunity to con
test such findings; and
`(C)(i) the expiration of any time period established for the progr
am by statute or regulation for the individual to respond to that notice; or
`(ii) in the case of a program for which no such period is establis
hed, the end of the 30-day period beginning on the date on which notice under su
bparagraph (B) is mailed or otherwise provided to the individual.
`(2) Independent verification referred to in paragraph (1) requires inv
estigation and confirmation of specific information relating to an individual th
at is used as a basis for an adverse action against the individual, including wh
ere applicable investigation and confirmation of--
`(A) the amount of any asset or income involved;
`(B) whether such individual actually has or had access to such ass
et or income for such individual's own use; and
`(C) the period or periods when the individual actually had such as
set or income.
`(3) Notwithstanding paragraph (1), an agency may take any appropriate
action otherwise prohibited by such paragraph if the agency determines that the
public health or public safety may be adversely affected or significantly threat
ened during any notice period required by such paragraph.'.
(b) ISSUANCE OF GUIDANCE BY DIRECTOR OF OMB- Not later than 90 days aft
er the date of the enactment of this Act, the Director of the Office of Manageme
nt and Budget shall publish guidance under subsection (p)(1)(A)(ii) of section 5
52a of title 5, United States Code, as amended by this section.
(c) LIMITATION ON APPLICATION OF VERIFICATION REQUIREMENT- Section 552a
(p)(1)(A)(ii)(II) of title 5, United States Code, as amended by subsection (a),
shall not apply to a program referred to in paragraph (1), (2), or (4) of sectio
n 1137(b) of the Social Security Act (42 U.S.C. 1320b-7), until the earlier of--
(1) the date on which the Data Integrity Board of the Federal agenc
y which administers that program determines that there is not a high degree of c
onfidence that information provided by that agency under Federal matching progra
ms is accurate; or
(2) 30 days after the date of publication of guidance under subsect
ion (b).
PART 2--PROTECTION OF LOW-INCOME MEDICARE BENEFICIARIES
SEC. 4411. EXTENDING MEDICAID PAYMENT FOR MEDICARE PREMIUMS FOR CERTAIN I
NDIVIDUALS WITH INCOME BELOW 125 PERCENT OF THE OFFICIAL POVERTY LINE.
(a) ENTITLEMENT- Section 1902(a)(10)(E)(ii) of the Social Security Act
(42 U.S.C. 1395b(a)(10)(E)(ii)) is amended by inserting `(I)' before `for qualif
ied' and by inserting before the comma the following: `and (II) subject to secti
on 1905(p)(4), for individuals who would be qualified medicare beneficiaries des
cribed in section 1905(p)(1) but for the fact that their income exceeds the inco
me level established by the State under section 1905(p)(2) but is less than 125
percent of the official poverty line (referred to in such section) for a family
of the size involved'.
(b) FEDERAL PAYMENT OF FULL COSTS OF ADDITIONAL MEDICAL ASSISTANCE- The
last sentence of section 1905(b) of such Act (42 U.S.C. 1396d(b)) is amended by
inserting before the period at the end the following: `and with respect to amou
nts expended for medicare cost-sharing described in subsection (p)(3)(A)(i) for
individuals described in section 1902(a)(10)(E)(ii)(II)'.
(c) APPLICATION IN CERTAIN STATES AND TERRITORIES- Section 1905(p)(4) o
f such Act (42 U.S.C. 1396d(p)(4)) is amended--
(1) in subparagraph (B), by inserting `or 1902(a)(10)(E)(ii)(II)' a
fter `subparagraph (B)', and
(2) by adding at the end the following:
`In the case of any State which is providing medical assistance to its re
sidents under a waiver granted under section 1115, the Secretary shall require t
he State to meet the requirement of section 1902(a)(10)(E) in the same manner as
the State would be required to meet such requirement if the State had in effect
a plan approved under this title.'
(d) CONFORMING AMENDMENT- Section 1843(h) of such Act (42 U.S.C. 1395v(
h)) is amended by adding at the end the following new paragraph:
`(3) In this subsection, the term `qualified medicare beneficiary' also
includes an individual described in section 1902(a)(10)(E)(ii)(II).'.
(e) DELAY IN COUNTING SOCIAL SECURITY COLA INCREASES UNTIL NEW POVERTY
GUIDELINES PUBLISHED-
(1) IN GENERAL- Section 1905(p) of such Act is amended--
(A) in paragraph (1)(B), by inserting `, except as provided in
paragraph (2)(D)' after `supplementary social security income program', and
(B) by adding at the end of paragraph (2) the following new sub
paragraph:
`(D)(i) In determining under this subsection the income of an individua
l who is entitled to monthly insurance benefits under title II for a transition
month (as defined in clause (ii)) in a year, such income shall not include any a
mounts attributable to an increase in the level of monthly insurance benefits pa
yable under such title which have occurred pursuant to section 215(i) for benefi
ts payable for months beginning with December of the previous year.
`(ii) For purposes of clause (i), the term `transition month' means eac
h month in a year through the month following the month in which the annual revi
sion of the official poverty line, referred to in subparagraph (A), is published
.'.
(2) CONFORMING AMENDMENTS- Section 1902(m) of such Act (42 U.S.C. 1
396a(m)) is amended--
(A) in paragraph (1)(B), by inserting `, except as provided in
paragraph (2)(C)' after `supplemental security income program', and
(B) by adding at the end of paragraph (2) the following new sub
paragraph:
`(C) The provisions of section 1905(p)(2)(D) shall apply to determinati
ons of income under this subsection in the same manner as they apply to determin
ations of income under section 1905(p).'.
(f) EFFECTIVE DATE- The amendments made by this section shall apply to
calendar quarters beginning on or after January 1, 1991, without regard to wheth
er or not regulations to implement such amendments are promulgated by such date;
except that the amendments made by subsection (d) shall apply to determinations
of income for months beginning with January 1991.
PART 3--IMPROVEMENTS IN CHILD HEALTH
SEC. 4421. PHASED-IN MANDATORY COVERAGE OF CHILDREN UP TO 100 PERCENT OF
POVERTY LEVEL.
(a) IN GENERAL- Section 1902 of the Social Security Act (42 U.S.C. 1396
a), as amended by section 6401(a) of the Omnibus Budget Reconciliation Act of 19
89, is amended--
(1) in subsection (a)(10)(A)(i)--
(A) by striking `or' at the end of subclause (V),
(B) by striking the semicolon at the end of subclause (VI) and
inserting `, or', and
(C) by adding at the end the following new subclause:
`(VII) who are described in subparagraph (D) of subsect
ion (l)(1) and whose family income does not exceed the income level the State is
required to establish under subsection (l)(2)(C) for such a family;';
(2) in subsection (a)(10)(A)(ii)(IX), by striking `or clause (i)(VI
)' and inserting `, clause (i)(VI), or clause (i)(VII)';
(A) by amending subparagraph (D) of paragraph (1) to read as fo
llows:
`(D) children born after September 30, 1983, who have attained one
year of age but have not attained 13 years of age,';
(B) by striking subparagraph (C) of paragraph (2) and inserting
the following:
`(C) For purposes of paragraph (1) with respect to individuals desc
ribed in subparagraph (D) of that paragraph, the State shall establish an income
level which is equal to the 100 percent of the income official poverty line des
cribed in subparagraph (A) applicable to a family of the size involved.';
(i) by inserting `, (a)(10)(A)(i)(VII),' after `(a)(10)(A)(
i)(VI)', and
(ii) in subparagraph (E), by striking `the methodology empl
oyed' and inserting `a methodology which is no more restrictive than the methodo
logy employed';
(D) in paragraph (4)(A), by inserting `or subsection (a)(10)(A)
(i)(VII)' after `(a)(10)(A)(i)(VI)'; and
(E) in paragraph (4)(B), by striking `or (a)(10)(A)(i)(VI)' aft
er `, (a)(10)(A)(i)(VI), or (a)(10)(A)(i)(VII)'; and
(4) in subsection (r)(2)(A), by inserting `(a)(10)(A)(i)(VII),' aft
er `(a)(10)(A)(i)(VI),'.
(b) ADDITIONAL CONFORMING AMENDMENTS-
(1) Section 1903(f)(4) of such Act (42 U.S.C. 1396b(f)(4)) is amend
ed--
(A) by striking `1902(a)(10)(A)(i)(IV),' and inserting `1902(a)
(10)(A)(i)(III), 1902(a)(10)(A)(i)(IV), 1902(a)(10)(A)(i)(V),', and
(B) by inserting after `1902(a)(10)(A)(i)(VI),' the following:
`1902(a)(10)(A)(i)(VII), 1902(a)(1)(A)(ii)(I),'.
(2) Subsections (a)(3)(C) and (b)(3)(C)(i) of section 1925 of such
Act (42 U.S.C. 1396r-6), as amended by section 6411(i)(3) of the Omnibus Budget
Reconciliation Act of 1989, are each amended by inserting `(i)(VII),' after `(i)
(VI)'.
(c) EFFECTIVE DATE- (1) The amendments made by this section apply (exce
pt as otherwise provided in this subsection) to payments under title XIX of the
Social Security Act for calendar quarters beginning on or after July 1, 1991, wi
thout regard to whether or not final regulations to carry out such amendments ha
ve been promulgated by such date.
(2)(A) In the case of a State plan for medical assistance under title X
IX of the Social Security Act which the Secretary of Health and Human Services d
etermines requires State legislation (other than legislation authorizing or appr
opriating funds) in order for the plan to meet the additional requirements impos
ed by the amendments made by this section, the State plan shall not be regarded
as failing to comply with the requirements of such title solely on the basis of
its failure to meet these additional requirements before the first day of the fi
rst calendar quarter beginning after the close of the first regular session of t
he State legislature that begins after the date of the enactment of this Act. Fo
r purposes of the previous sentence, in the case of a State that has a 2-year le
gislative session, each year of such session shall be deemed to be a separate re
gular session of the State legislature.
(B) In the case of the State of Texas, the State plan shall not be rega
rded as failing to comply with the requirements of title XIX of the Social Secur
ity Act solely on the basis of its failure to meet the additional requirements i
mposed by the amendments made by this section before September 1, 1991.
SEC. 4422. MANDATORY CONTINUATION OF BENEFITS THROUGHOUT PREGNANCY OR FIR
ST YEAR OF LIFE.
(a) IN GENERAL- Section 1902(e) of the Social Security Act (42 U.S.C. 1
396a(e)) is amended--
(1) in the first sentence of paragraph (4), by inserting `(or would
remain if pregnant)' after `remains'; and
(A) by striking `At the option of a State, in' and inserting `I
n';
(B) by striking `the State plan may nonetheless treat the woman
as being' and inserting `the woman shall be deemed to continue to be'; and
(C) by adding at the end the following new sentence: `The prece
ding sentence shall not apply in the case of a woman who has been provided ambul
atory prenatal care pursuant to section 1920 during a presumptive eligibility pe
riod and is then, in accordance with such section, determined to be ineligible f
or medical assistance under the State plan.'.
(1) INFANTS- The amendment made by subsection (a)(1) shall apply to
individuals born on or after January 1, 1991, without regard to whether final r
egulations to carry out such amendment have been promulgated by such date.
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(2) PREGNANT WOMEN- The amendments made by subsection (a)(2) shall
apply with respect to determinations to terminate the eligibility of women, base
d on change of income, made on or after January 1, 1991, without regard to wheth
er final regulations to carry out such amendments have been promulgated by such
date.
SEC. 4423. MANDATORY USE OF OUTREACH LOCATIONS OTHER THAN WELFARE OFFICES
.
(a) IN GENERAL- Section 1902(a) of the Social Security Act (42 U.S.C. 1
396a(a)), as amended by section 4401(a)(2) of this title, is amended--
(1) by striking `and' at the end of paragraph (53),
(2) by striking the period at the end of paragraph (54) and inserti
ng `; and', and
(3) by inserting after paragraph (54) the following new paragraph:<
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`(55) provide for receipt and initial processing of applications of
individuals for medical assistance under subsections (a)(10)(A)(i)(IV), (a)(10)
(A)(i)(VI), (a)(10)(A)(i)(VII), or (a)(10)(A)(ii)(IX)--
`(A) at locations which are other than those used for the recei
pt and processing of applications for aid under part A of title IV and which inc
lude facilities defined as disproportionate share hospitals under section 1923(a
)(1)(A) and Federally-qualified health centers described in section 1905(l)(2)(B
), and
`(B) using applications which are other than those used for app
lications for aid under such part.'.
(b) EFFECTIVE DATE- The amendments made by subsection (a) apply to paym
ents under title XIX of the Social Security Act for calendar quarters beginning
on or after July 1, 1991, without regard to whether or not final regulations to
carry out such amendments have been promulgated by such date.
SEC. 4424. PRESUMPTIVE ELIGIBILITY.
(a) EXTENSION OF PRESUMPTIVE ELIGIBILITY PERIOD- Section 1920 of the So
cial Security Act (42 U.S.C. 1396r-1) is amended--
(1) in subsection (b)(1)(B)--
(A) by adding `or' at the end of clause (i),
(B) by striking clause (ii), and
(C) by amending clause (iii) to read as follows:
`(ii) in the case of a woman who does not file an applicati
on by the last day of the month following the month during which the provider ma
kes the determination referred to in subparagraph (A), such last day; and'; and<
/ul>
(2) in subsections (c)(2)(B) and (c)(3), by striking `within 14 cal
endar days after the date on which' and inserting `by not later than the last da
y of the month following the month during which'.
(b) FLEXIBILITY IN APPLICATION- Section 1920(c)(3) of such Act (42 U.S.
C. 1396r-1(c)(3)) is amended by inserting before the period at the end the follo
wing: `, which application may be the application used for the receipt of medica
l assistance by individuals described in section 1902(l)(1)(A)'.
(1) The amendments made by subsection (a) apply to payments under t
itle XIX of the Social Security Act for calendar quarters beginning on or after
July 1, 1991, without regard to whether or not final regulations to carry out su
ch amendments have been promulgated by such date.
(2) The amendment made by subsection (b) shall be effective as if i
ncluded in the enactment of section 9407(b) of the Omnibus Budget Reconciliation
Act of 1986.
SEC. 4425. ROLE IN PATERNITY DETERMINATIONS.
(a) IN GENERAL- Section 1912(a)(1)(B) of the Social Security Act (42 U.
S.C. 1396k(a)(1)(B)) is amended by inserting `the individual is described in sec
tion 1902(l)(1)(A) or' after `unless (in either case)'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall take eff
ect on the date of the enactment of this Act.
SEC. 4426. REPORT AND TRANSITION ON ERRORS IN ELIGIBILITY DETERMINATIONS.
(a) REPORT- The Secretary of Health and Human Services shall report to
Congress, by not later than July 1, 1991, on error rates by States in determinin
g eligibility of individuals described in subparagraph (A) or (B) of section 190
2(l)(1) of the Social Security Act for medical assistance under plans approved u
nder title XIX of such Act. Such report may include data for medical assistance
provided before July 1, 1989.
(b) ERROR RATE TRANSITION- There shall not be taken into account, for p
urposes of section 1903(u) of the Social Security Act, payments and expenditures
for medical assistance which--
(1) are attributable to medical assistance for individuals describe
d in subparagraph (A) or (B) of section 1902(l)(1) of such Act, and
(2) are made on or after July 1, 1989, and before the first calenda
r quarter that begins more than 12 months after the date of submission of the re
port under subsection (a).
PART 4--NURSING HOME REFORM PROVISIONS
SEC. 4431. MEDICAID NURSING HOME REFORM.
(1) NO COMPLIANCE ACTIONS BEFORE EFFECTIVE DATE OF GUIDELINES- The
Secretary of Health and Human Services shall not take (and shall not continue) a
ny action against a State under section 1904 of the Social Security Act on the b
asis of the State's failure to meet the requirement of section 1919(e)(1)(A) of
such Act before the effective date of guidelines, issued by the Secretary, estab
lishing requirements under section 1919(f)(2)(A)(ii)(I) of such Act, if the Stat
e demonstrates to the satisfaction of the Secretary that it has made a good fait
h effort to meet such requirement before such effective date.
(2) CLARIFICATION OF GRACE PERIOD FOR NURSE TRAINING OF INDIVIDUALS
- Section 1919(b)(5)(A) of the Social Security Act (42 U.S.C. 1396r(b)(5)(A)) is
amended--
(A) by striking `for more than 4 months', and
(B) by striking the period at the end and inserting a semicolon
and the following:
`except that such requirement shall not apply to an individual wh
o has been used (on a full-time, temporary, per diem, or other basis) as a nurse
aide for less than 90 days in any nursing facility.'.
(3) CLARIFICATION OF NURSE AIDES NOT SUBJECT TO CHARGES- Section 19
19(f)(2)(A)(iv)(II) of such Act (42 U.S.C. 1396r(f)(2)(A)(iv)(II)) is amended by
inserting after `nurse aide' the following: `who is employed by (or who has ent
ered into an employment agreement with) a facility'.
(4) MODIFICATION OF NURSING FACILITY DEFICIENCY STANDARDS- Section
1919(f)(2)(B)(iii)(I) of such Act (42 U.S.C. 1396r(f)(2)(B)(iii)(I)) is amended
to read as follows:
`(I) offered by or in a nursing facility which, within
the previous 2 years, has operated under a waiver under subsection (b)(4)(C)(ii)
or has been subject to an extended (or partial extended) survey under subsectio
n (g)(2)(B)(i), or'.
(5) CLARIFICATION OF STATE RESPONSIBILITY TO DETERMINE COMPETENCY-
Section 1919(f)(2)(B) of such Act (42 U.S.C. 1396r(f)(2)(B)) is amended, in the
second sentence, by inserting `(through subcontract or otherwise)' after `may no
t delegate'.
(6) EFFECTIVE DATE- The amendments made by this subsection shall ta
ke effect as if they were included in the enactment of the Omnibus Budget Reconc
iliation Act of 1987.
(b) PREADMISSION SCREENING AND ANNUAL RESIDENT REVIEW-
(1) NO COMPLIANCE ACTIONS BEFORE EFFECTIVE DATE OF GUIDELINES- The
Secretary of Health and Human Services shall not take (and shall not continue) a
ny action against a State under section 1904 or section 1919(e)(7)(D) of the Soc
ial Security Act on the basis of the State's failure to meet the requirement of
section 1919(e)(7)(A) of such Act before the effective date of guidelines, issue
d by the Secretary, establishing minimum criteria under section 1919(f)(8)(A) of
such Act, if the State demonstrates to the satisfaction of the Secretary that i
t has made a good faith effort to meet such requirement before such effective da
te.
(2) CLARIFICATION WITH RESPECT TO ADMISSIONS AND READMISSION FROM A
HOSPITAL- Section 1919 of the Social Security Act (42 U.S.C. 1396r) is amended-
-
(A) in subsection (b)(3)(F), by striking `A nursing facility' a
nd by inserting `Except as provided in clauses (ii) and (iii) of subsection (e)(
7)(A), a nursing facility'; and
(B) in subsection (e)(7)(A)--
(i) by redesignating the first 2 sentences as clause (i) wi
th the following heading (and appropriate indentation):
(ii) by adding at the end the following:
`(ii) CLARIFICATION WITH RESPECT TO CERTAIN READMISSIONS- T
he preadmission screening program under clause (i) need not provide for determin
ations in the case of the readmission to a nursing facility of an individual who
, after being admitted to the nursing facility, was transferred for care in a ho
spital.
`(iii) EXCEPTION FOR CERTAIN HOSPITAL DISCHARGES- The pread
mission screening program under clause (i) shall not apply to the admission to a
nursing facility of an individual--
`(I) who is admitted to the facility directly from a ho
spital after receiving acute inpatient care at the hospital,
`(II) who requires nursing facility services for the co
ndition for which the individual received care in the hospital, and
`(III) whose attending physician has certified, before
admission to the facility, that the individual is likely to require less than 30
days of nursing facility services.'.
(3) DELAY IN APPLICATION TO PRIVATE PAY RESIDENTS-
(A) IN GENERAL- Section 1919(e)(7) of such Act (42 U.S.C. 1396r
(e)(7)) is amended--
(i) in subparagraph (A), as amended by paragraph (2)(B) of
this subsection--
(I) in clause (i), by inserting `except as provided in
clause (iv),' after `January 1, 1989,', and
(II) by adding at the end the following new clause:
`(iv) DELAY IN APPLICATION OF PREADMISSION SCREENING FOR PR
IVATE PAY RESIDENTS- In the case of an individual who, at the time of admission
to a nursing facility, is not entitled to benefits under this title, the preadmi
ssion screening requirements of this subparagraph shall not apply until such tim
e as the resident is so entitled and, in such case, the preadmission screening r
equirements shall apply as of the end of the day following the date on which the
individual is determined to be so entitled. The previous sentence shall not be
construed as prohibiting a State from imposing such a preadmission screening req
uirement with respect to individuals not so entitled at the time of admission.';
and
(ii) in subparagraph (B)--
(I) in clauses (i) and (ii), by inserting `except as pr
ovided in clause (iv),' after `April 1, 1990,' each place it appears,
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(II) in clause (iii)(III), by inserting `, except as pr
ovided in clause (iv)' after `April 1, 1990', and
(III) by adding at the end the following new clause:
`(iv) DELAY IN APPLICATION OF ANNUAL RESIDENT REVIEW FOR PR
IVATE PAY RESIDENTS- In the case of an individual who, at the time of admission
to a nursing facility, is not entitled to benefits under this title, the annual
resident review requirements of this subparagraph shall not apply until such tim
e as the resident is so entitled. The previous sentence shall not be construed a
s prohibiting a State from imposing such an annual resident review requirement w
ith respect to individuals not so entitled at the time of admission.'.
(B) NO COMPLIANCE ACTION FOR PREVIOUS NONCOMPLIANCE- The Secret
ary of Health and Human Services may not impose any sanction against a State und
er section 1904 or section 1919(e)(7)(D) of the Social Security Act due to the S
tate's failure to comply with the preadmission screening requirements of section
1919(e)(7)(A) of such Act insofar as such requirements applied with respect to
individuals not entitled to benefits under title XIX of such Act at the time of
their admission.
(4) DENIAL OF PAYMENTS FOR CERTAIN RESIDENTS NOT REQUIRING NURSING
FACILITY SERVICES- Section 1919(e)(7) of such Act (42 U.S.C. 1395r(e)(7)) is ame
nded--
(A) in subparagraph (D)--
(i) in the heading, by striking `WHERE FAILURE TO CONDUCT P
READMISSION SCREENING',
(ii) by designating the first sentence as clause (i) with t
he following heading (and appropriate indentation):
`(i) FOR FAILURE TO CONDUCT PREADMISSION SCREENING OR ANNUA
L REVIEW- ', and
(iii) by adding at the end the following new clause:
`(ii) FOR CERTAIN RESIDENTS NOT REQUIRING NURSING FACILITY
LEVEL OF SERVICES- No payment may be made under section 1903(a) with respect to
nursing facility services furnished to an individual (other than an individual d
escribed in subparagraph (C)(i)) who does not require the level of services prov
ided by a nursing facility.'; and
(B) in subparagraph (E), by striking `the requirement of this p
aragraph' and inserting `the requirements of subparagraphs (A) through (C) of th
is paragraph'.
(5) NO DELEGATION OF AUTHORITY TO CONDUCT SCREENING AND REVIEWS- Se
ction 1919 of such Act is further amended--
(A) in subsection (b)(3)(F), by adding at the end the following
:
`A State mental health authority and a State mental retardation o
r developmental disability authority may not delegate (by subcontract or otherwi
se) their responsibilities under this subparagraph to a nursing facility (or to
an entity that has a direct or indirect affiliation or relationship with such a
facility).'; and
(B) in subsection (e)(7)(B), as amended by paragraph (3)(A)(ii)
of this subsection, by adding at the end the following new clause:
`(v) PROHIBITION OF DELEGATION- A State mental health autho
rity, a State mental retardation or developmental disability authority, and a St
ate may not delegate (by subcontract or otherwise) their responsibilities under
this subparagraph to a nursing facility (or to an entity that has a direct or in
direct affiliation or relationship with such a facility).'.
(A) STATE REPORTS- Section 1919(e)(7)(C) of such Act (42 U.S.C.
1396r(e)(7)(C)) is amended by adding at the end the following new clause:
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`(iv) ANNUAL REPORT- Each State shall report to the Secreta
ry annually concerning the number and disposition of residents described in each
of clauses (ii) and (iii).'.
(B) SECRETARIAL REPORT- Section 4215 of the Omnibus Budget Reco
nciliation Act of 1987 is amended by adding at the end the following new sentenc
e: `Each such report shall also include a summary of the information reported by
States under section 1919(e)(7)(C)(iv) of such Act.'.
(7) REVISION OF ALTERNATIVE DISPOSITION PLANS- Section 1919(e)(7)(E
) of the Social Security Act (42 U.S.C. 1396r(e)(7)(E)) is amended by adding at
the end the following: `The State may revise such an agreement, subject to the a
pproval of the Secretary, before October 1, 1991, but only if, under the revised
agreement, all residents subject to the agreement who do not require the level
of services of such a facility are discharged from the facility by not later tha
n April 1, 1994.'.
(8) DEFINITION OF MENTALLY ILL- Section 1919(e)(7)(G)(i) of such Ac
t (42 U.S.C. 1396r(e)(7)(G)(i)) is amended by striking `primary or secondary' an
d all that follows through `3rd edition)' and inserting `serious mental illness
(as defined by the Secretary)'.
(9) SUBSTITUTION OF `SPECIALIZED SERVICES' FOR `ACTIVE TREATMENT'-
Sections 1919(b)(3)(F) and 1919(e)(7) of such Act (42 U.S.C. 1396r(b)(3)(F), 139
6r(e)(7)) are each amended by striking `active treatment' and `ACTIVE TREATMENT'
each place either appears and inserting `specialized services' and `SPECIALIZED
SERVICES', respectively.
(A) IN GENERAL- Except as provided in subparagraph (B), the ame
ndments made by this subsection shall take effect as if they were included in th
e enactment of the Omnibus Budget Reconciliation Act of 1987.
(B) EXCEPTION- The amendments made by paragraphs (3), (5), (7),
and (9) shall take effect on the date of the enactment of this Act, without reg
ard to whether or not regulations to implement such amendments have been promulg
ated.
(c) ENFORCEMENT PROCESS- The Secretary of Health and Human Services sha
ll not take (and shall not continue) any action against a State under section 19
04 of the Social Security Act on the basis of the State's failure to meet the re
quirements of section 1919(h)(2) of such Act before the effective date of guidel
ines, issued by the Secretary, regarding the establishment of remedies by the St
ate under such section, if the State demonstrates to the satisfaction of the Sec
retary that it has made a good faith effort to meet such requirements before suc
h effective date.
(d) SUPERVISION OF HEALTH CARE OF RESIDENTS OF NURSING FACILITIES BY NU
RSE PRACTITIONERS AND CLINICAL NURSE SPECIALISTS ACTING IN COLLABORATION WITH PH
YSICIANS-
(1) IN GENERAL- Section 1919(b)(6)(A) of such Act (42 U.S.C. 1396r(
b)(6)(A)) is amended by inserting `(or, at the option of a State, under the supe
rvision of a nurse practitioner or clinical nurse specialist who is not an emplo
yee of the facility but who is working in collaboration with a physician)' after
`physician'.
(2) EFFECTIVE DATE- The amendment made by paragraph (1) applies wit
h respect to nursing facility services furnished on or after October 1, 1990, wi
thout regard to whether or not final regulations to carry out such amendment hav
e been promulgated by such date.
(1) ASSURANCE OF APPROPRIATE PAYMENT AMOUNTS-
(A) IN GENERAL- Section 1902(a)(13)(A) of the Social Security A
ct (42 U.S.C. 1396a(a)(13)(A)) is amended by inserting `(including the costs of
services required to attain or maintain the highest practicable physical, mental
, and psychosocial well-being of each resident eligible for benefits under this
title)' after `take into account the costs'.
(B) DETAILS IN PLAN AMENDMENT- Section 4211(b)(2) of the Omnibu
s Budget Reconciliation Act of 1987 is amended by inserting after the first sent
ence the following: `Each such amendment shall include a detailed description of
the specific methodology to be used in determining the appropriate adjustment i
n payment amounts for nursing facility services.'.
(2) DISCLOSURE OF INFORMATION OF QUALITY ASSESSMENT AND ASSURANCE C
OMMITTEES- Section 1919(b)(1)(B) of the Social Security Act (42 U.S.C. 1396r(b)(
1)(B)) is amended by adding at the end the following new sentence: `A State or t
he Secretary may not require disclosure of the records of such committee except
insofar as such disclosure is related to the compliance of such committee with t
he requirements of this subparagraph.'.
(3) PERIOD FOR RESIDENT ASSESSMENT- Section 1919(b)(3)(C)(i)(I) of
such Act (42 U.S.C. 1396r(b)(3)(C)(i)(I)) is amended by striking `4 days' and in
serting `14 days'.
(4) CLARIFICATION OF RESPONSIBILITY FOR SERVICES FOR MENTALLY ILL A
ND MENTALLY RETARDED RESIDENTS- Section 1919(b)(4)(A) of such Act (42 U.S.C. 139
6r(b)(4)(A)) is amended--
(A) by striking `and' at the end of clause (v),
(B) by striking the period at the end of clause (vi) and insert
ing `; and', and
(C) by inserting after clause (vi) the following new clause:
`(vii) treatment and services required by mentally ill and
mentally retarded residents not otherwise provided or arranged for (or required
to be provided or arranged for) by the State.'.
(5) CLARIFICATION OF EXTENT OF STATE WAIVER AUTHORITY- Section 1919
(b)(4)(C)(ii) of such Act (42 U.S.C. 1396r(b)(4)(C)(ii)) is amended by striking
`A State' and all that follows through `a facility if' and inserting `To the ext
ent that a facility is unable to meet the requirements of clause (i), a State ma
y waive such requirements with respect to the facility if'.
(6) CLARIFICATION OF DEFINITION OF NURSE AIDE- Section 1919(b)(5)(F
)(i) of such Act (42 U.S.C. 1396r(b)(5)(F)(i)) is amended by striking `(G)),' an
d inserting `(G)) or a registered dietician,'.
(7) CLARIFICATION OF REQUIREMENTS FOR SOCIAL SERVICES STAFF- Sectio
n 1919(b)(7) of such Act (42 U.S.C. 1396r(b)(7)) is amended by striking `one soc
ial worker' and all that follows and inserting the following: `one individual em
ployed full-time to provide or assure the provision of social services who--
`(A) is a social worker with at least a bachelor's degree in so
cial work or similar professional qualifications; or
`(B) is provided with on-going consultation and assistance in p
roviding such services by a social worker (with the qualifications described in
subparagraph (A)) employed by the facility.'.
(8) CHARGES APPLICABLE IN CASES OF CERTAIN MEDICAID-ELIGIBLE INDIVI
DUALS-
(A) IN GENERAL- Section 1919(c) of such Act (42 U.S.C. 1396r(c)
) is amended--
(i) by redesignating paragraph (7) as paragraph (8), and
(ii) by inserting after paragraph (6) the following new par
agraph:
`(7) LIMITATION ON CHARGES IN CASE OF MEDICAID-ELIGIBLE INDIVIDUALS
-
`(A) IN GENERAL- A nursing facility may not impose charges, for
certain medicaid-eligible individuals for nursing facility services covered by
the State under its plan under this title, that exceed the payment amounts estab
lished by the State for such services under this title.
`(B) CERTAIN MEDICAID INDIVIDUALS DEFINED- In subparagraph (A),
the term `certain medicaid-eligible individual' means an individual who is enti
tled to medical assistance for nursing facility services in the facility under t
his title but with respect to whom such benefits are not being paid because, in
determining the amount of the individual's income to be applied monthly to payme
nt for the costs of such services, the amount of such income exceeds the payment
amounts established by the State for such services under this title.'.
(B) EFFECTIVE DATE- The amendments made by subparagraph (A) sha
ll take effect on the date of the enactment of this Act, without regard to wheth
er or not regulations to implement such amendments have been promulgated.
(9) RESIDENTS' RIGHTS TO REFUSE INTRA-FACILITY TRANSFERS TO MOVE TH
E RESIDENT TO A MEDICARE-QUALIFIED PORTION- Section 1919(c)(1)(A) of such Act (4
2 U.S.C. 1396r(c)(1)(A)) is amended--
(A) by redesignating clause (x) as clause (xi) and by inserting
after clause (ix) the following new clause:
`(x) REFUSAL OF CERTAIN TRANSFERS- The right to refuse a tr
ansfer to another room within the facility, if a purpose of the transfer is to r
elocate the resident from a portion of the facility that is not a skilled nursin
g facility (for purposes of title XVIII) to a portion of the facility that is su
ch a skilled nursing facility.'; and
(B) by adding at the end the following: `A resident's exercise
of a right to refuse transfer under clause (x) shall not affect the resident's e
ligibility or entitlement to medical assistance under this title or a State's en
titlement to Federal medical assistance under this title with respect to service
s furnished to such a resident.'.
(10) RESIDENTS' RIGHTS REGARDING ADVANCE DIRECTIVES- Section 1919(c
)(1) of such Act (42 U.S.C. 1396r(c)(1)), as amended by paragraph (9), is amende
d--
(A) in subparagraph (A)--
(i) by redesignating clause (xi) as clause (xii), and
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(ii) by inserting after clause (x) the following new clause
:
`(xi) ADVANCE DIRECTIVES- The right to compliance by the fa
cility with the provisions of an advance directive.'; and
(B) by adding at the end the following new subparagraph:
`(E) DEFINITION- In this paragraph, the term `advance directive
' means a written instruction, such as a living will or durable power of attorne
y for health care, recognized under State law and relating to the provision of s
uch care when the individual is incapacitated.'.
(11) RESIDENT ACCESS TO CLINICAL RECORDS- Section 1919(c)(1)(A)(iv)
of such Act (42 U.S.C. 1396r(c)(1)(A)(iv)) is amended by inserting before the p
eriod at the end the following: `and to access to current clinical records of th
e resident promptly upon request by the resident'.
(12) INCLUSION OF STATE NOTICE OF RIGHTS IN FACILITY NOTICE OF RIGH
TS- Section 1919(c)(1)(B)(ii) of such Act (42 U.S.C. 1396r(c)(1)(B)(ii)) is amen
ded by inserting `including the notice (if any) of the State developed under sub
section (e)(6)' after `in such rights)'.
(13) REMOVAL OF DUPLICATIVE REQUIREMENT FOR QUALIFICATIONS OF NURSI
NG HOME ADMINISTRATORS- Effective October 1, 1990--
(A) paragraph (29) of section 1902(a) of the Social Security Ac
t (42 U.S.C. 1396a(a)) is repealed, and
(B) section 1908 of such Act (42 U.S.C. 1396g) is repealed.
(14) CLARIFICATION OF NURSE AIDE REGISTRY REQUIREMENTS- Section 191
9(e)(2) of such Act (42 U.S.C. 1396r(e)(2)) is amended--
(A) in subparagraph (A), by striking the period and inserting t
he following: `, or any individual described in subsection (f)(2)(B)(ii) or in s
ubparagraph (B) or (C) of section 6901(b)(4) of the Omnibus Budget Reconciliatio
n Act of 1989.' and
(B) by adding at the end the following new subparagraph:
`(C) PROHIBITION AGAINST CHARGES- A State may not impose any ch
arges on a nurse aide relating to the registry established and maintained under
subparagraph (A).'.
(15) CLARIFICATION ON FINDINGS OF NEGLECT- Section 1919(g)(1)(C) of
such Act (42 U.S.C. 1396r(g)(1)(C)) is amended by adding at the end the followi
ng: `A State shall not make a finding that an individual has neglected a residen
t if the individual demonstrates that such neglect was caused by factors beyond
the control of the individual.'.
(16) TIMING OF PUBLIC DISCLOSURE OF SURVEY RESULTS- Section 1919(g)
(5)(A)(i) of such Act (42 U.S.C. 1396r(g)(5)(A)(i)) is amended by striking `defi
ciencies and plans' and inserting `deficiencies, within 14 calendar days after s
uch information is made available to those facilities, and approved plans'.
(17) DENIAL OF PAYMENT OF LEGAL FEES FOR FRIVOLOUS LITIGATION- Sect
ion 1903(i) of such Act (42 U.S.C. 1396b(i)), as amended by section 4401(a)(1)(B
) of this title, is amended--
(A) by striking `or' at the end of paragraph (9);
(B) by striking the period at the end of paragraph (10) and ins
erting `; or'; and
(C) by inserting after paragraph (10) the following new paragra
ph:
`(11) with respect to any amount expended to reimburse (or otherwis
e compensate) a nursing facility for payment of legal expenses associated with a
ny action initiated by the facility that is dismissed on the basis that no reaso
nable legal ground existed for the institution of such action.'
(18) EFFECTIVE DATES- The amendments made by this subsection (other
than by paragraphs (8) and (13)) shall take effect as if they were included in
the enactment of the Omnibus Budget Reconciliation Act of 1987.
PART 5--MISCELLANEOUS
Subpart A--Payments
SEC. 4441. STATE MEDICAID MATCHING PAYMENTS THROUGH VOLUNTARY CONTRIBUTIO
NS AND STATE TAXES.
(a) VOLUNTARY CONTRIBUTIONS- Section 1902 of the Social Security Act (4
2 U.S.C. 1396a) is amended by adding at the end the following new subsection:
`(s)(1)(A) Subject to subparagraphs (B) and (C), financial participatio
n described in subsection (a)(2) may include the application of private funds do
nated by hospitals to, and subject to the unrestricted control of, the State.
`(B) Financial participation--
`(i) may not include donations to the extent their aggregate amount
exceeds in any Federal fiscal year 10 percent of the non-Federal portion of exp
enditures under the plan in the year, and
`(ii) may not include donations made by, or on behalf of, or with r
espect to, any particular hospital, to the extent that their aggregate amount in
an annual cost reporting period exceeds 10 percent of the gross revenues of the
hospital (not taking into account any Federal revenues under this title or unde
r title V or title XVIII).
`(C) For purposes of this paragraph, the fact that a hospital may recei
ve some benefit from a transfer of funds to a State shall not prevent the transf
er from being treated as the donation of funds, unless the amount of benefit to
the hospital is directly related, in timing and amount, to the timing and amount
of the transfer.'.
(b) STATE TAX CONTRIBUTIONS- Section 1902(s) of such Act, added by the
amendment made by subsection (a), is amended by adding at the end the following
new paragraph:
`(2) Nothing in this title (including sections 1903(a) and 1905(a)) sha
ll be construed as authorizing the Secretary to deny or limit payments to a Stat
e for expenditures, for medical assistance for items or services, attributable t
o taxes (whether or not of general applicability) imposed with respect to the pr
ovision of such items or services.'.
(1) VOLUNTARY CONTRIBUTION- The amendment made by subsection (a) sh
all apply to funds donated on or after January 1, 1991.
(2) STATE TAX CONTRIBUTION- The amendment made by subsection (b) sh
all take effect on January 1, 1991.
SEC. 4442. DISPROPORTIONATE SHARE HOSPITALS: COUNTING OF INPATIENT DAYS A
ND TREATMENT OF CAPITAL PASS-THROUGHS.
(a) CLARIFICATION OF MEDICAID DISPROPORTIONATE SHARE ADJUSTMENT CALCULA
TION- Section 1923(b)(2) of the Social Security Act (42 U.S.C. 1396r-4(b)(2)) is
amended by adding at the end the following new sentence: `In this paragraph, th
e term `inpatient day' includes each day in which an individual (including a new
born) is an inpatient in the hospital, whether or not the individual is in a spe
cialized ward and whether or not the individual remains in the hospital for lack
of suitable placement elsewhere.'.
(b) FEDERAL FINANCIAL PARTICIPATION FOR MEDICAID CAPITAL PAYMENTS- Sect
ion 1902(h) of such Act (42 U.S.C. 1396a(h)) is amended by inserting `(including
pass-through payments for capital costs)' after `payment adjustments'.
(1) CLARIFICATION OF INPATIENT DAYS- The amendment made by subsecti
on (a) shall take effect on July 1, 1990.
(2) FEDERAL FINANCIAL PARTICIPATION- The amendment made by subsecti
on (b) shall be effective as if included in the enactment of the Omnibus Budget
Reconciliation Act of 1981.
SEC. 4443. DISPROPORTIONATE SHARE HOSPITALS: ALTERNATIVE STATE PAYMENT AD
JUSTMENTS AND SYSTEMS.
(a) ALTERNATIVE STATE PAYMENT ADJUSTMENTS- Section 1923(c) of the Socia
l Security Act (42 U.S.C. 1396r-4(c)) is amended--
(1) by striking `or' at the end of paragraph (1);
(2) by adding `or' at the end of paragraph (2); and
(3) by inserting after paragraph (2) the following new paragraph:
`(3) provide for a minimum specified additional payment amount (or
increased percentage payment) based on a formula that takes into account the cha
racteristics of patients of categories of disproportionate share hospitals in th
e State and that does not take into account (and is not related in timing or amo
unt to) the amount or timing of any voluntary contribution directly or indirectl
y by such a hospital;'.
(b) CLARIFICATION OF SPECIAL RULE FOR STATE USING HEALTH INSURING ORGAN
IZATION- Section 1923(e)(2) of such Act (42 U.S.C. 1396r-4(e)(2)) is amended by
striking `during the 3-year period'.
(c) EFFECTIVE DATE- The amendments made by this section shall take effe
ct as if included in the enactment of section 412(a)(2) of the Omnibus Budget Re
conciliation Act of 1987.
SEC. 4444. DISPROPORTIONATE SHARE HOSPITALS: MINIMUM PAYMENT ADJUSTMENT F
OR CERTAIN HOSPITALS.
Section 1923 of the Social Security Act (42 U.S.C. 1396r-4) is amended-
-
(1) in subsection (c), by striking `In order' and inserting `Except
as provided in subsection (f), in order'; and
(2) by adding at the end the following new subsection:
`(f) MINIMUM PAYMENT ADJUSTMENT FOR CERTAIN HOSPITALS-
`(1) AMOUNT OF PAYMENT- In the case of a hospital described in para
graph (2), the appropriate increase in the rate or amount of payments required u
nder subsection (a)(1)(B) shall be equal to at least one-half of the amount paid
under the State plan to the hospital for operating costs for inpatient hospital
services (of the kind described in section 1886(a)(4)), except that the aggrega
te payments made to such a hospital by a State during a fiscal year under the pl
an may not exceed the reasonable costs to such hospital of providing inpatient a
nd outpatient hospital services to individuals eligible for benefits under this
title during the year.
`(2) DESCRIPTION OF HOSPITAL- A hospital described in this paragrap
h is a hospital that--
`(A) is a nonprofit, private entity which is not a teaching hos
pital;
`(B) has a medicaid inpatient utilization rate (as defined in s
ubsection (b)(2)) of at least 45 percent;
`(C) has a private pay utilization rate (as defined in paragrap
h (3)) of not more than 8 percent; and
`(D) is located in a health manpower shortage area (as defined
in section 332 of the Public Health Service Act) in a State which had a waiver a
pproved and in effect under section 1915(b)(4) as of the date of the enactment o
f this subsection.
`(3) DEFINITION- In paragraph (2)(C), the term `private pay utiliza
tion rate' means, for a hospital, a fraction (expressed as a percentage), the nu
merator of which is the hospital's number of inpatient days attributable to pati
ents who (for such days) have private third party coverage of health benefits in
a period, and the denominator of which is the total number of the hospital's in
patient days in that period.'.
(b) CONFORMING AMENDMENT- Section 1923(b)(2) of such Act (42 U.S.C. 139
6r-4(b)(2)) is amended by striking `(1)(A)' and inserting `(1)(A) and subsection
(f)'.
(c) EFFECTIVE DATE- The amendments made by this section shall apply to
calendar quarters beginning on or after January 1, 1991, and before October 1, 1
993, without regard to whether or not regulations to implement such amendments h
ave been promulgated by such date.
SEC. 4445. FEDERALLY-QUALIFIED HEALTH CENTERS.
(a) CLARIFICATION OF USE OF MEDICARE PAYMENT METHODOLOGY- Section 1902(
a)(13)(E) of the Social Security Act (42 U.S.C. 1396a(a)(13)(E)) is amended--
(1) by striking `may prescribe' the first place it appears and inse
rting `prescribes', and
(2) by striking `on such tests of reasonableness as the Secretary m
ay prescribe in regulations under this subparagraph' and inserting `on the same
methodology used under section 1833(a)(3)'.
(b) MINIMUM PAYMENT RATES BY HEALTH MAINTENANCE ORGANIZATIONS- Section
1903(m)(2)(A) of such Act (42 U.S.C. 1396b(m)(2)(A)) is amended--
(1) by striking `and' at the end of clause (vii),
(2) by striking the period at the end of clause (viii) and insertin
g `, and', and
(3) by adding at the end the following new clause:
`(ix) such contract provides, in the case of an entity that is a Fe
derally-qualified health center or that provides for services through arrangemen
ts with such a center, that (I) rates of prepayment from the State are adjusted
to reflect fully the rates of payment specified in section 1902(a)(13)(E), and (
II) payments made by the entity to such a center for services described in 1905(
a)(2)(C) are made at the rates of payment specified in section 1902(a)(13)(E).'.
(c) CLARIFICATION IN TREATMENT OF OUTPATIENTS- Section 1905(l)(2) of su
ch Act (42 U.S.C. 1396d(l)(2)) is amended--
(1) in subparagraph (A), by striking `outpatient' and inserting `pa
tient (other than an inpatient)', and
(2) in subparagraph (B), by striking `facility' and inserting `enti
ty'.
(d) TREATMENT OF INDIAN TRIBES- The first sentence of section 1905(l)(2
)(B) of such Act (42 U.S.C. 1396d(l)(2)(B)) is amended--
(1) by striking the period at the end and inserting a comma, and
(2) by adding, after and below clause (ii), the following:
`and includes an outpatient health program or facility operated by a trib
e or tribal organization under the Indian Self-Determination Act (Public Law 93-
638).'.
(e) TECHNICAL CORRECTION- Section 6402 of the Omnibus Budget Reconcilia
tion Act of 1989 is amended--
(1) by striking subsection (c), and
(2) by amending subsection (d) to read as follows:
`(c) EFFECTIVE DATE- The amendments made by this section (except as oth
erwise provided in such amendments) shall take effect on the date of the enactme
nt of this Act.'.
(f) EFFECTIVE DATE- The amendments made by this section shall be effect
ive as if included in the enactment of the Omnibus Budget Reconciliation Act of
1989.
SEC. 4446. HOSPICE PAYMENTS.
(a) IN GENERAL- Section 1905(o)(3) of the Social Security Act (42 U.S.C
. 1396d(o)(3)) is amended--
(1) by striking `a State which elects' and all that follows through
`with respect to' the first place it appears,
(2) by striking `skilled nursing or intermediate care facility' in
subparagraphs (A) and (C) and inserting `nursing facility or intermediate care f
acility for the mentally retarded';
(3) by striking `the amounts allocated under the plan for room and
board in the facility, in accordance with the rates established under section 19
02(a)(13),' and inserting `the additional amount described in section 1902(a)(13
)(D)', and
(4) by striking the last sentence.
(b) EFFECTIVE DATE- The amendments made by subsection (a) shall be effe
ctive as if included in the amendments made by section 6408(c)(1) of the Omnibus
Budget Reconciliation Act of 1989.
SEC. 4447. LIMITATIONS ON DISALLOWANCE OF CERTAIN INPATIENT PSYCHIATRIC H
OSPITAL SERVICES.
(a) IN GENERAL- The Secretary of Health and Human Services may not disa
llow or defer Federal financial participation under section 1903(a) of the Socia
l Security Act for inpatient psychiatric hospital services for individuals under
age 21 under paragraph (16) of section 1905(a) of such Act in a State in which
the Inspector General of the Department of Health and Human Services has initiat
ed or completed reviews or audits of such services (but for which services the S
ecretary has not issued a disallowance notice) as of October 11, 1990, on the gr
ound that the facilities in the State did not meet the requirement of section 19
05(h)(1)(B)(ii) of such Act, except as provided in subsection (b).
(b) LIMITATIONS ON DISALLOWANCE- With respect to services described in
subsection (a)--
(1) the Secretary may disallow or defer Federal financial participa
tion only for services provided to an individual eligible under title XIX of the
Social Security Act before the date the facility is able to document (through p
lan of care or utilization review procedures) that the services in the facility
on an inpatient basis are necessary (as described in section 1905(h)(1)(B)(ii) o
f the Social Security Act);
(2) the Secretary may disallow or defer Federal financial participa
tion only for services for which facilities in the State did not meet the requir
ement of section 1905(h)(1)(B)(ii) of such Act during the 3-year period ending o
n the date an audit is initiated with respect to such services; and
(3) the disallowance of Federal financial participation during the
period in which the requirement of section 1905(h)(1)(B)(ii) of such Act was not
met by facilities in the State with respect to such services may not exceed 25
percent of the amount of the disallowance that would otherwise be made in accord
ance with this section.
(c) EFFECTIVENESS- This section shall apply to disallowance actions tha
t are pending or for which there has not been a final judicial decision as of th
e date of the enactment of this Act.
SEC. 4448. TREATMENT OF INTEREST ON INDIANA DISALLOWANCE.
With respect to any disallowance of Federal financial participation und
er section 1903(a) of the Social Security Act for intermediate care facility ser
vices, intermediate care facility services for the mentally retarded, or skilled
nursing facility services on the ground that the facilities in the State of Ind
iana were not certified in accordance with law during the period beginning June
1, 1982, and ending September 30, 1984, payment of such disallowance may be defe
rred without interest that would otherwise accrue without regard to this subsect
ion, until every opportunity to appeal has been exhausted.
Subpart B--Eligibility and Coverage
SEC. 4451. PROVIDING FEDERAL MEDICAL ASSISTANCE FOR PAYMENTS FOR PREMIUMS
FOR `COBRA' CONTINUATION COVERAGE WHERE COST EFFECTIVE.
(a) OPTIONAL PAYMENT OF COBRA PREMIUMS FOR QUALIFIED COBRA CONTINUATION
BENEFICIARIES- Section 1902 of the Social Security Act (42 U.S.C. 1396a) is ame
nded--
(1) in subsection (a)(10)--
(A) by striking `and' at the end of subparagraph (D),
(B) by adding `and' at the end of subparagraph (E),
(C) by inserting after subparagraph (E) the following new subpa
ragraph:
`(F) at the option of a State, for making medical assistance av
ailable for COBRA premiums (as defined in subsection (t)(2)) for qualified COBRA
continuation beneficiaries described in section 1902(t)(1);', and
(D) in the matter following subparagraph (E), by striking `and'
before `(X)' and by inserting before the semicolon at the end the following: `,
and (XI) the medical assistance made available to an individual described in su
bsection (t)(1) who is eligible for medical assistance only because of subparagr
aph (F) shall be limited to medical assistance for COBRA continuation premiums (
as defined in subsection (t)(2))'; and
(2) by adding after the subsection added by section 4441(a) the fol
lowing new subsection:
`(t)(1) Individuals described in this paragraph are individuals--
`(A) who are entitled to elect COBRA continuation coverage (as defi
ned in paragraph (3)),
`(B) whose income (as determined under section 1612 for purposes of
the supplemental security income program) does not exceed 100 percent of the of
ficial poverty line (as defined by the Office of Management and Budget, and revi
sed annually in accordance with section 673(2) of the Omnibus Budget Reconciliat
ion Act of 1981) applicable to a family of the size involved,
`(C) whose resources (as determined under section 1613 for purposes
of the supplemental security income program) do not exceed twice the maximum am
ount of resources that an individual may have and obtain benefits under that pro
gram, and
`(D) with respect to whose enrollment for COBRA continuation covera
ge the State has determined that the savings in expenditures under this title re
sulting from such enrollment is likely to exceed the amount of payments for COBR
A premiums made.
`(2) For purposes of subsection (a)(10)(F) and this subsection, the ter
m `COBRA premiums' means the applicable premium imposed with respect to COBRA co
ntinuation coverage.
`(3) In this subsection, the term `COBRA continuation coverage' means c
overage under a group health plan provided pursuant to title XXII of the Public
Health Service Act, section 4980B of the Internal Revenue Code of 1986, or title
VI of the Employee Retirement Income Security Act of 1974.
`(4) Notwithstanding subsection (a)(17), for individuals described in p
aragraph (1) who are covered under the State plan by virtue of subsection (a)(10
)(A)(ii)(XI)--
`(A) the income standard to be applied is the income standard descr
ibed in paragraph (1)(B), and
`(B) except as provided in section 1612(b)(4)(B)(ii), costs incurre
d for medical care or for any other type of remedial care shall not be taken int
o account in determining income.
Any different treatment provided under this paragraph for such individual
s shall not, because of subsection (a)(10)(B) or (a)(17), require or permit such
treatment for other individuals.'.
(b) CONFORMING AMENDMENT- Section 1905(a) of such Act (42 U.S.C. 1396d(
a)) is amended--
(1) by striking `or' at the end of clause (viii),
(2) by adding `or' at the end of clause (ix), and
(3) by inserting after clause (ix) the following new clause:
`(x) individuals described in section 1902(t)(1),'.
(c) EFFECTIVE DATE- The amendments made by this section shall apply to
medical assistance furnished on or after January 1, 1991.
SEC. 4452. PROVISIONS RELATING TO SPOUSAL IMPOVERISHMENT.
(a) CLARIFICATION OF NON-APPLICATION OF STATE COMMUNITY PROPERTY LAWS-
Section 1924(b)(2) of the Social Security Act (42 U.S.C. 1396r-5(b)(2)) is amend
ed in the matter preceding subparagraph (A) by striking `spouse,' and inserting
`spouse for purposes of this section,'.
(b) CLARIFICATION OF TRANSFER OF RESOURCES TO COMMUNITY SPOUSE- Section
1924(f)(1) of such Act (42 U.S.C. 1396r-5(f)(1)) is amended by striking `sectio
n 1917' and inserting `section 1917(c)(1)'.
(c) CLARIFICATION OF PERIOD OF CONTINUOUS ELIGIBILITY- Section 1924(c)(
1) of such Act (42 U.S.C. 1396r-1(c)(1)) is amended by striking `the beginning o
f a continuous period of institutionalization of the institutionalized spouse' e
ach place it appears and inserting `the beginning of the first continuous period
of institutionalization (beginning on or after September 30, 1989) of the insti
tutionalized spouse'.
(d) EFFECTIVE DATE- The amendments made this section shall take effect
as if included in the enactment of section 303 of the Medicare Catastrophic Cove
rage Act of 1988.
SEC. 4453. DISREGARDING GERMAN REPARATION PAYMENTS FROM POST-ELIGIBILITY
TREATMENT OF INCOME UNDER THE MEDICAID PROGRAM.
(a) IN GENERAL- Section 1902(r)(1) of the Social Security Act (42 U.S.C
. 1396a) is amended by inserting `there shall be disregarded reparation payments
made by the Federal Republic of Germany and' after `under such a waiver'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply to
treatment of income for months beginning more than 30 days after the date of th
e enactment of this Act.
SEC. 4454. AMENDMENTS RELATING TO MEDICAID TRANSITION PROVISION.
(a) REPEAL OF SUNSET- Subsection (f) of section 1925 of the Social Secu
rity Act (42 U.S.C. 1396s) is repealed.
(b) ADDITIONAL AMENDMENTS- Such section is further amended--
(1) in subsection (b)(2)(B)(i), by inserting at the end the followi
ng: `A State may permit such additional extended assistance under this subsectio
n notwithstanding a failure to report under this clause if the family has establ
ished, to the satisfaction of the State, good cause for the failure to report on
a timely basis.';
(2) in subsection (b)(2)(B), by adding at the end the following new
clause:
`(iii) CLARIFICATION ON FREQUENCY OF REPORTING- A State may
not require that a family receiving extended assistance under this subsection o
r subsection (a) report more frequently than as required under clause (i) or (ii
).'; and
(3) in subsection (b)(3)(B), by adding at the end the following: `N
o such termination shall be effective earlier than 10 days after the date of mai
ling of such notice.'.
(c) EFFECTIVE DATE- The amendments made by subsection (b) shall be effe
ctive as if included in the enactment of the Family Support Act of 1988.
SEC. 4455. CLARIFYING EFFECT OF HOSPICE ELECTION.
Section 1905(o)(1)(A) of the Social Security Act (42 U.S.C. 1396d(o)(1)
(A)) is amended by inserting `and for which payment may otherwise be made under
title XVIII' after `described in section 1812(d)(2)(A)'.
SEC. 4456. CLARIFICATION OF APPLICATION OF 133 PERCENT INCOME LIMIT TO ME
DICALLY NEEDY.
(a) IN GENERAL- Section 1903(f) of the Social Security Act (42 U.S.C. 1
396b(f)(4)) is amended--
(1) in paragraph (1), by striking `Except as provided in paragraph
(4)' and inserting `Subject to paragraph (4)', and
(2) in paragraph (4), by striking `shall not apply' and all that fo
llows through the end and inserting `shall only apply with respect to any amount
expended by a State as medical assistance for an individual who is only eligibl
e for such assistance as an individual described in section 1902(a)(10)(C) at th
e time of the provision of the medical assistance giving rise to such expenditur
e.'.
(b) CONFORMING AMENDMENTS- Section 1902(a)(10)(A)(ii) of such Act (42 U
.S.C. 1396a(a)(10)(A)(ii)) is amended--
(1) in subclause (V), by striking `whose income does not exceed a s
eparate income standard established by the State which is consistent with the li
mit established under section 1903(f)(4)(C)' and inserting `whose income does no
t exceed a separate income standard established by the State, which income (as d
etermined under section 1612, but without regard to subsection (b) thereof) does
not exceed 300 percent of the supplemental security income benefit rate establi
shed by section 1611(b)(1)', and
(2) in subclauses (VI) and (VII), by inserting `(applying the resou
rce and income standards applicable under subclause (V))' after `in a medical in
stitution'.
(c) ADDITIONAL CONFORMING AMENDMENT- Effective as if included in the en
actment of section 303(e) of the Medicare Catastrophic Coverage Act of 1988, sec
tion 1902(f) of the Social Security Act (42 U.S.C. 1396a(f)) is amended by strik
ing `subsection (e)' and inserting `subsections (e) and (r)(2)'.
(d) MEDICALLY NEEDY INCOME LEVELS FOR CERTAIN 1-MEMBER FAMILIES-
(1) IN GENERAL- For purposes of section 1903(f)(1)(B) of the Social
Security Act, for payments made before, on, or after the date of the enactment
of this Act, a State described in subparagraph (B) may use, in determining the `
highest amount which would ordinarily be paid to a family of the same size' (und
er the State's plan approved under part A of title IV of such Act) in the case o
f a family consisting only of one individual and without regard to whether or no
t such plan provides for aid to families consisting only of one individual, an a
mount reasonably related to the highest money payment which would ordinarily be
made under such a plan to a family of two without income or resources.
(2) STATES COVERED- Paragraph (1) shall only apply to a State the S
tate plan of which (under title XIX of the Social Security Act) as of June 1, 19
89, provided for the policy described in such paragraph. For purposes of the pre
vious sentence, a State plan includes all the matter included in a State plan un
der section 2373(c)(5) of the Deficit Reduction Act of 1984 (as amended by secti
on 9 of the Medicare and Medicaid Patient and Program Protection Act of 1987).
(e) EFFECTIVE DATE- The amendments made by subsections (a) and (b) shal
l take effect as if included in the enactment of the Omnibus Budget Reconciliati
on Act of 1986.
SEC. 4457. CODIFICATION OF COVERAGE OF REHABILITATION SERVICES.
(a) IN GENERAL- Section 1905(a)(13) of the Social Security Act (42 U.S.
C. 1396d(a)(13)) is amended by inserting before the semicolon at the end the fol
lowing: `, including any medical or remedial services (provided in a facility, a
home, or other setting) recommended by a physician or other licensed practition
er of the healing arts within the scope of their practice under State law, for t
he maximum reduction of physical or mental disability and restoration of an indi
vidual to the best possible functional level'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall take eff
ect on the date of the enactment of this Act.
SEC. 4458. PERSONAL CARE SERVICES FOR MINNESOTA.
(a) CLARIFICATION OF COVERAGE- In applying section 1905 of the Social S
ecurity Act with respect to Minnesota, medical assistance shall include payment
for personal care services described in subsection (b).
(b) PERSONAL CARE SERVICES DEFINED- For purposes of this section, the t
erm `personal care services' means services--
(1) prescribed by a physician for an individual in accordance with
a plan of treatment,
(2) provided by a person who is qualified to provide such services
who is not a member of the individual's family,
(3) supervised by a registered nurse, and
(4) furnished in a home or other location;
but does not include such services furnished to an inpatient or resident
of a hospital or nursing facility.
(c) EFFECTIVE DATE- This section shall take effect on the date of the e
nactment of this Act and shall also apply to personal care services furnished be
fore such date pursuant to regulations in effect as of July 1, 1989.
Subpart C--Health Maintenance Organizations
SEC. 4461. REQUIREMENTS FOR RISK-SHARING HEALTH MAINTENANCE ORGANIZATIONS
UNDER MEDICAID.
(a) HMO MINIMUM MEMBERSHIP REQUIREMENTS- Section 1903(m)(2)(A) of the S
ocial Security Act (42 U.S.C. 1396b(m)(2)(A)) is amended--
(1) by striking `, and' at the end of clause (vii) and inserting a
semicolon;
(2) by striking the period at the end of clause (viii) and insertin
g `; and'; and
(3) by adding at the end the following new clause:
`(ix) such entity has at least 5,000 members, except that the Secre
tary may make payment under this title for services provided by an entity that h
as fewer members if the entity primarily serves members residing in a rural area
.'.
(b) APPLICATION OF MINIMUM ENROLLMENT, PATIENT MIX, AND FINANCIAL SOLVE
NCY REQUIREMENTS TO RISK-SHARING SUBCONTRACTORS- Section 1903(m)(2)(A) of such A
ct (42 U.S.C. 1396b(m)(2)(A)), as amended by subsection (a), is further amended-
-
(1) by striking `and' at the end of clause (viii);
(2) by striking the period at the end of clause (ix) and inserting
`; and'; and
(3) by adding at the end the following new clause:
`(x) in the case of services provided by an entity that has entered
into an agreement for the provision of such services with another entity (other
than an entity described in subparagraph (B)) under which payment to the other
entity for such services is determined under a prepaid capitation basis or under
any other risk basis--
`(I) the other entity meets the requirements of clauses (ii) an
d (ix), and
`(II) if the other entity is not a qualified health maintenance
organization (as defined in section 1310(d) of the Public Health Service Act),
such other entity meets the requirements of paragraph (1)(A)(ii) and paragraph (
4).'.
(c) DELAY IN IMPLEMENTATION OF PROHIBITION AGAINST PHYSICIAN INCENTIVE
PAYMENTS- Section 1128A(b) of such Act (42 U.S.C. 1320a-7a(b)) is amended by add
ing at the end the following new paragraph:
`(3) With respect to an entity with a contract under section 1903(m), p
aragraph (1) shall apply to payments made by such an entity on or after April 1,
1992.'.
(d) EFFECTIVE DATE- The amendments made by subsections (a) and (b) shal
l apply to contract years beginning on or after January 1, 1991.
SEC. 4462. SPECIAL RULES.
(a) WAIVER OF 75 PERCENT RULE FOR PUBLIC ENTITIES- Section 1903(m)(2)(D
) of the Social Security Act (42 U.S.C. 1396b(m)(2)(D)) is amended by striking `
(i) special circumstances warrant such modification or waiver, and (ii)'.
(b) EXTENDING SPECIAL TREATMENT TO MEDICARE COMPETITIVE MEDICAL PLANS-<
/ul>
(1) 6-MONTH MINIMUM ENROLLMENT PERIOD OPTION- Section 1902(e)(2)(A)
of such Act (42 U.S.C. 1396a(e)(2)(A)) is amended by inserting `or with an elig
ible organization with a contract under section 1876' after `1903(m)(2)(A)'.
(2) ENROLLMENT LOCK-IN- Section 1903(m)(2)(F)(i) of such Act (42 U.
S.C. 1396b(m)(2)(F)(i)) is amended--
(A) by striking `(G) or' and inserting `(G),', and
(B) adding at the end the following: `or with an eligible organ
ization with a contract under section 1876 which meets the requirement of subpar
agraph (A)(ii), or'.
(c) AUTOMATIC 1-MONTH REENROLLMENT FOR SHORT PERIODS OF INELIGIBILITY-
Section 1903(m)(2) of such Act is amended by adding at the end the following new
subparagraph:
`(H) In the case of an individual who--
`(i) in a month is eligible for benefits under this title and enrol
led with a health maintenance organization with a contract under this paragraph,
`(ii) in the next month (or in the next 2 months) is not eligible f
or such benefits, but
`(iii) in the succeeding month is again eligible for such benefits,
the State plan, subject to subparagraph (A)(vi), may enroll the individua
l for that succeeding month with the health maintenance organization described i
n clause (i) if the organization continues to have a contract under this paragra
ph with the State.'.
(d) ELIMINATION OF PROVISIONAL QUALIFICATION FOR HMOS- Section 1903(m)
of such Act is amended--
(1) in paragraph (2)(A)(i), by striking `(or the State as authorize
d by paragraph (3))', and
(2) by striking paragraph (3).
(e) EFFECTIVE DATE- The amendments made by this section shall take effe
ct on the date of the enactment of this Act.
SEC. 4463. EXTENSION AND EXPANSION OF MINNESOTA PREPAID MEDICAID DEMONSTR
ATION PROJECT.
Section 507 of the Family Support Act of 1988 is amended--
(1) by striking `1991' and inserting `1996'; and
(2) by striking the period at the end and inserting the following:
`, and shall amend such waiver to permit the State to expand such demonstration
project to other counties if the amount of medical assistance provided under tit
le XIX of such Act after such expansion will not exceed the amount of medical as
sistance provided under such title had the project not been expanded to other co
unties.'.
SEC. 4464. TREATMENT OF DAYTON AREA HEALTH PLAN.
Section 9517(c)(2)(C) of the Consolidated Omnibus Budget Reconciliation
Act of 1985 is amended by adding at the end the following: `In the case of the
Dayton Area Health Plan, clause (ii) of section 1903(m)(2)(A) of the Social Secu
rity Act shall not apply during the 5-year period beginning on the date the Secr
etary of Health and Human Services has granted the plan a waiver under section 1
915(b) of such Act of certain requirements of section 1902 of such Act.'.
SEC. 4465. TREATMENT OF CERTAIN COUNTY-OPERATED HEALTH INSURING ORGANIZAT
IONS.
Section 9517(c) of the Consolidated Omnibus Budget Reconciliation Act o
f 1985 is amended--
(A) in paragraph (2)(A), by inserting `and in paragraph (3)' af
ter `subparagraph (B)', and
(B) by adding at the end the following new paragraph:
`(3)(A) Subject to subparagraph (C), in the case of up to 3 health insu
ring organizations which are described in subparagraph (B), which first become o
perational on or after January 1, 1986, and which are designated by the Governor
, and approved by the Legislature, of California, the amendments made by paragra
ph (1) shall not apply.
`(B) A health insuring organization described in this subparagraph is o
ne that--
`(i) is operated directly by a public entity established by a count
y government in the State of California under a State enabling statute;
`(ii) enrolls all medicaid beneficiaries residing in the county in
which it operates;
`(iii) meets the requirements for health maintenance organizations
under the Knox-Keene Act (Cal. Health and Safety Code, section 1340 et seq.) and
the Waxman-Duffy Act (Cal. Welfare and Institutions Code, section 14450 et seq.
);
`(iv) assures a reasonable choice of providers, which includes prov
iders that have historically served medicaid beneficiaries and which does not im
pose any restriction which substantially impairs access to covered services of a
dequate quality where medically necessary;
`(v) provides for a payment adjustment for a disproportionate share
hospital (as defined under State law consistent with section 1923 of the Social
Security Act) in a manner consistent with the requirements of such section; and
`(vi) provides for payment, in the case of childrens' hospital serv
ices provided to medicaid beneficiaries who are under 21 years of age, who are c
hildren with special health care needs under title V of the Social Security Act,
and who are receiving care coordination services under such title, at rates det
ermined by the California Medical Assistance Commission.
`(C) Subparagraph (A) shall not apply with respect to any period for wh
ich the Secretary of Health and Human Services determines that the number of med
icaid beneficiaries enrolled with health insuring organizations described in sub
paragraph (B) exceeds 10 percent of the number of such beneficiaries in the Stat
e of California.
`(D) In this paragraph, the term `medicaid beneficiary' means an indivi
dual who is entitled to medical assistance under the State plan under title XIX
of the Social Security Act, other than a qualified medicare beneficiary who is o
nly entitled to such assistance because of section 1902(a)(10)(E) of such title.
'.
Subpart D--Demonstration Projects and Home and Community-Based Waiver
s
SEC. 4471. MEDICAID LONG-TERM CARE INSURANCE DEMONSTRATION PROJECT.
(a) AUTHORIZATION OF PROJECTS-
(1) IN GENERAL- The Secretary of Health and Human Services (in this
section referred to as the `Secretary'), upon application by any State may appr
ove demonstration projects (each in this section referred to as a `project') und
er which covered long-term care beneficiaries (as defined in paragraph (3)(A)) w
ho are 65 years of age or older and who have exhausted benefits under the qualif
ied long-term care insurance policy are made eligible under the special rules sp
ecified in paragraph (2) to receive benefits with respect to long-term care serv
ices (as defined in paragraph (3)(B)) under the State medicaid plan. Expenditure
s with respect to such benefits shall be considered to be medical assistance for
purposes of section 1903(a) of the Social Security Act.
(2) SPECIAL ELIGIBILITY PROVISIONS-
(A) INITIAL ELIGIBILITY- In determining the initial eligibility
for medical assistance with respect to long-term care services under the State
medicaid plan--
(i) the income of each covered long-term care beneficiary w
ho is 65 years of age or older and who has exhausted benefits under the qualifie
d long-term care insurance policy shall be disregarded, and
(ii) subject to subparagraph (D), the valuation of the asse
ts of such beneficiary shall be reduced by the amount of protection provided und
er the long-term care insurance policy recognized under the project.
(B) POST-ELIGIBILITY- The amount such a beneficiary is required
to contribute toward the cost of long-term care services shall be the same as o
ther individuals entitled to such services under the State plan, except that, su
bject to subparagraph (D), the valuation of the assets of the beneficiary shall
be reduced by the amount of protection provided under the long-term care insuran
ce policy recognized under the project.
(C) NONDISCRIMINATION- Except as specified in this paragraph, a
State medicaid plan may not discriminate, in the services covered or otherwise,
against any individual based on whether or not the individual participates in a
project under this section.
(D) MAXIMUM LEVEL OF ASSET PROTECTION-
(i) IN GENERAL- In no case shall the valuation of assets of
a beneficiary be reduced by more than the maximum benefit level of the qualifie
d long-term care insurance policy or the amount specified in clause (ii), whiche
ver is less.
(ii) INDEXED LIMIT- The amount specified in this clause is
$75,000 increased by the same percentage as the percentage increase in the Consu
mer Price Index for All Urban Consumers (all items; U.S. city average) from Dece
mber 1991 to December of the year preceding the year involved.
(3) DEFINITIONS- In this section:
(A) The term `covered long-term care beneficiary' means an indi
vidual who at any time purchases benefits under a qualified long-term care insur
ance policy, and who voluntarily elects, at the time of purchase of such policy,
to participate in the project.
(B) The term `long-term care services' means medical assistance
for the following items and services, to the extent the State medicaid plan oth
erwise makes medical assistance available to individuals entitled to benefits un
der the plan:
(i) Nursing facility services.
(ii) Home health care services (described in section 1905(a
)(7) of the Social Security Act).
(iii) Private duty nursing services.
(iv) Case management services.
(v) Homemaker/home health aide services.
(vi) Personal care services.
(vii) Adult day health services.
(C) The term `State medicaid plan' means the plan of medical as
sistance of a State approved under title XIX of the Social Security Act.
(D) The term `qualified long-term care insurance policy' means
a long-term care insurance policy that meets the requirements of subsection (e).
(1) IN GENERAL- The Secretary may not approve a project of a State
under this section unless the Secretary finds that the project meets the followi
ng requirements:
(A) The terms of the project are disclosed to each individual b
efore the individual is enrolled under the project.
(B) Subject to subsection (e)(8)(C), any qualified long-term ca
re insurance policy made available in conjunction with the project cannot condit
ion, or otherwise limit, payment under the policy in any manner because the insu
red is eligible for, or payment may be made, for services under any public progr
am (including the medicare or medicaid programs).
(2) LIMIT ON NUMBER OF LIVES INSURED UNDER ALL PROJECTS- The Secret
ary shall approve projects under this section in a manner that assures that ther
e are never more than 25,000 covered long-term care beneficiaries under all the
projects. The Secretary, consistent with the previous sentence, may require that
a project of a State must permit enrollment of a minimum number of covered long
-term care beneficiaries.
(3) WAIVER OF CERTAIN REQUIREMENTS- The Secretary may waive the fol
lowing requirements in title XIX of the Social Security Act with respect to cove
red long-term care beneficiaries who are 65 years of age or older and who have e
xhausted benefits under a qualified long-term care insurance policy to the exten
t required to carry out a project:
(A) Sections 1901, 1902(a)(1), 1902(a)(10) (other than subparag
raph (B)), 1902(a)(17), and 1903(f), relating to required eligibility and benefi
ts.
(B) Sections 1902(a)(14) and 1916(b), relating to premiums and
cost-sharing.
(c) LIMITATION ON PAYMENTS- Notwithstanding section 1903 of the Social
Security Act, payment may not be made under such section for Federal financial p
articipation for medical assistance with respect to long-term care services unde
r a State medicaid plan for individuals 65 years of age or older during a year i
n which the project is in effect under this section in a State to the extent tha
t such expenditures exceed the projected amount (determined by the Secretary at
the time of approval of the project) that the State would have spent for such se
rvices for such individuals during such year if this section had not been in eff
ect.
(d) STATE ASSURANCES- The Secretary shall not approve an application of
a State under this section unless the State provides assurance satisfactory to
the Secretary that--
(1) aggregate expenditures under the plan for long-term care servic
es for individuals 65 years of age or older in any fiscal year under the project
will not exceed the aggregate expenditures under the plan for such services for
such individuals in the fiscal year in the absence of such project;
(2) there will be no reduction or limitation of benefits to any ind
ividual eligible for medical assistance under the State medicaid plan as a resul
t of operation of the project;
(3) the State will continue to make long-term care services availab
le under the plan, at least to the extent such services are made available under
the plan as in effect before the date of such approval and could continue to be
provided consistent with law;
(4) the State will not permit the sale of any qualified long-term c
are insurance policy under the project unless the State has determined that the
policy meets requirements specified in subsection (e) and meets standards at lea
st as stringent as those set forth in the NAIC Long-Term Care Insurance Model Ac
t (as of June 1989) and the NAIC regulations implementing the Act (to the extent
not inconsistent with the requirements of subsection (e));
(5) in the sale of long-term care insurance policies not covered un
der the project, the State will require, at or before the time of sale of such a
policy, that there be a disclosure of the fact that purchase of such a policy w
ill not provide potential benefits under title XIX of the Social Security Act, u
nlike such policies covered under the project;
(6) the State will guarantee the payment of benefits under qualifie
d long-term care insurance policies sold under the project;
(7) the percentage, of the income official poverty line, establishe
d by the State under section 1902(l)(2)(A)(i) of the Social Security Act is 185
percent;
(8) the State is in compliance with the requirements of section 190
2(a)(28);
(9) nursing facilities under the medicaid plan establish and mainta
in identical policies and practices regarding admission for all individuals rega
rdless of whether or not the individuals are participating in the project;
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(10) the State has actuarial guidelines regarding, and actuaries ca
pable of evaluating, actuarial submissions of companies seeking to offer qualifi
ed long-term care insurance policies under the project; and
(11) the State has provided for a program of counseling residents o
f the State with respect to the purchase of long-term care insurance policies an
d alternative financial options for protection of assets.
No payments shall be made under section 1903(a) of the Social Security Ac
t with respect to a State's performance of the guarantee required under paragrap
h (6).
(e) REQUIREMENTS FOR QUALIFIED LONG-TERM CARE INSURANCE POLICIES- The r
equirements specified in this subsection (respecting qualified long-term care in
surance policies offered under the project in the State) are as follows:
(1) STANDARD FORMAT AND DISCLOSURE-
(A) POLICY AND APPLICATION- Each such long-term care insurance
policy, and application for such a policy, shall be written in simple, easily un
derstood English in a standard format (established by the State) providing stand
ardized terms and disclosure.
(B) MARKETING MATERIAL- Marketing materials used with respect t
o such a policy shall be written or otherwise stated in simple, easily understoo
d English.
(C) REQUIRED DISCLOSURE- No such long-term care insurance polic
y may be sold (or offered for sale) unless there is disclosed in writing, no lat
er than the time of sale of the policy--
(i) the proportion of premiums collected (and interest and
other revenues derived therefrom) which will be applied to payment of benefits,
and
(ii) the potential benefits under title XIX of the Social S
ecurity Act associated under the project with purchase of such a policy.
(2) MINIMUM LOSS-RATIO- Such a policy must guarantee over time, usi
ng generally accepted actuarial standards, that at least 70 percent of the amoun
t of the premiums (and interest and other revenues derived therefrom) will be pa
id on benefits under the policy.
(3) STANDARD MINIMUM BENEFITS- Each such long-term care insurance p
olicy shall provide at least the following benefits, up to the maximum dollar le
vel of benefits provided under (and specified on the face of) the plan under par
agraph (4):
(A) NURSING FACILITY SERVICES- Coverage of, and payment for, nu
rsing facility services for individuals determined (in accordance with paragraph
(5)) to require an institutional level of care.
(B) HOME AND COMMUNITY-BASED SERVICES- Personal care services (
including home health aide and homemaker services), home health services, and re
spite care in the individual's place of residence for individuals determined to
be at risk of institutionalization without such services.
The policy may not impose any limits on the duration of the period of
services under the policy, other than the maximum dollar level of benefits (whi
ch shall apply uniformly to all services). The payment levels established for se
rvices under the plan shall be adjusted at least annually to reflect the percent
age increase in the Consumer Price Index for All Urban Consumers (all items; U.S
. city average).
(4) SPECIFICATION OF MAXIMUM DOLLAR LEVEL OF BENEFITS- Each such lo
ng-term care insurance policy shall specify a maximum dollar level of benefits.
Such maximum dollar level of benefits shall be increased, in each year after the
year following the year of its issuance, by the same percentage as the percenta
ge increase in the Consumer Price Index for All Urban Consumers (all items; U.S.
city average) from December of the year before the year of issuance to December
of the year preceding the year involved.
(5) DETERMINATION OF BENEFIT ELIGIBILITY-
(A) CASE MANAGEMENT REQUIRED- Each long-term care insurance pol
icy shall use a standard formula, set by the State and based on a uniform assess
ment instrument specified by the State, to determine the level of care appropria
te for each case. Such formula must be applied by the State or a case-management
agency which is independent of the issuer of the policy.
(B) NO HIGHER LEVEL OF CARE REQUIREMENT- A long-term care insur
ance policy may not condition or limit eligibility for benefits--
(i) for noninstitutional benefits to the need for or receip
t of institutional services,
(ii) for home care services to the need for or receipt of n
ursing care, or
(iii) for any benefits on the medical necessity for such be
nefits.
(C) APPEAL RIGHTS- Each long-term care insurance policy shall p
rovide for and specify procedures (meeting reasonable standards specified by the
State) for the appeal of determinations of level of care made under subparagrap
h (A).
(6) LIMITATION BASED ON PRE-EXISTING CONDITION-
(A) IN GENERAL- Except as permitted under subparagraph (B), a l
ong-term care insurance policy may not limit or delay an individual's eligibilit
y for benefits based on a pre-existing condition.
(B) EXCEPTION- A long-term care insurance policy may deny payme
nts during the first 6 months of coverage for treatment respecting any condition
that existed during the 6 months before the date of purchase of the policy.
(7) NO POST-CLAIMS CONDITIONING AND GUARANTEED RENEWABLE- After a l
ong-term care insurance policy has been issued, the issuer may not deny claims u
nder the policy on any grounds other than fraud or a knowing misrepresentation i
n the application for the policy or deny renewal of the coverage other than on s
uch grounds or the failure to make timely payment of premiums.
(8) MEDICAL UNDERWRITING, PREMIUMS, AND COST-SHARING-
(A) NO MEDICAL UNDERWRITING-
(i) IN GENERAL- Except as provided in clauses (ii) and (iii
), an individual may not be discriminated against in the offering, renewal, or b
enefits under such a long-term care insurance policy based on the individual's m
edical condition.
(ii) TREATMENT OF INDIVIDUALS RECEIVING BENEFITS- The issue
r of a long-term care insurance policy may deny initial issuance of such a polic
y to an individual receiving long-term care services at the time of the applicat
ion for issuance of the policy.
(iii) VARYING PREMIUMS BY AGE CLASSIFICATION- Clause (i) sh
all not be construed as preventing the issuer of a long-term care insurance poli
cy from varying the premiums based on the age classification of individuals at t
he time of issuance of the policy.
(B) LEVEL PREMIUMS- Each such policy shall have periodic premiu
ms that are the same for all individuals in the same age group who purchased suc
h a policy when they were in the same age group. The premiums rates must be guar
anteed for the duration of the policy and must be suspended during any period in
which benefits are payable under the policy.
(C) NONDUPLICATION OF MEDICARE BENEFITS- Each such policy shall
provide that, to the extent not required under section 1862(b) of the Social Se
curity Act, benefits are not payable under the policy for services for which pay
ment may be made under title XVIII of such Act.
(D) REDUCED PAID-UP PROVISION- Each long-term care insurance po
licy shall have a provision under which, if the policy lapses after 5 or more ye
ars of coverage, the policy will provide, without payment of any additional prem
iums, benefits equal to at least 30 percent of the maximum dollar level of benef
its available at term, and, after subsequent periods of coverage, the policy wil
l provide, without payment of any additional premium, benefits equal to at least
an increased percentage (established by the Secretary) of the maximum dollar le
vel of benefits available at term.
(E) ADDITIONAL CONSUMER PROTECTIONS- Each long-term care policy
meets such standards relating to compensation arrangements, advertising, market
ing, and appropriateness of purchase which the Secretary finds are equal to, or
more stringent than, the requirements specified in sections 12, 15, 16, and 17 o
f Model Regulation to Implement the NAIC Medicare Supplement Insurance Minimum S
tandards Act (as adopted by the National Association of Insurance Commissioners
as of December 7, 1989).
(9) ACCESS TO INFORMATION- The issuer of the long-term care policy
will make available to the State and the Secretary (upon request) information re
specting the utilization of benefits (and payments) under the policy, the health
status of individuals purchasing such policies, and such other information as t
he Secretary may require, including information on lapse rates, rescissions, app
lication denials, payment denials, and complaints received.
(f) PROHIBITED SALES PRACTICES-
(1) DUTY OF GOOD FAITH AND FAIR DEALING- Each individual who is sel
ling or offering for sale a long-term care insurance policy under the demonstrat
ion project has a duty of good faith and fair dealing to the purchaser or potent
ial purchaser of such a policy.
(2) SPECIFIC PRACTICES- An individual who is selling or offering fo
r sale such a long-term care insurance policy--
(A) may not complete the medical history portion of an applicat
ion;
(B) may not knowingly sell such a policy to provide benefits to
an individual who is eligible for benefits under a State plan approved under ti
tle XIX of the Social Security Act (other than only because of the operation of
the demonstration project); and
(C) may not sell such a policy knowing that the policy provides
coverage that duplicates coverage already provided and may not sell a long-term
care insurance policy for the benefit of an individual unless the individual (o
r a representative of the individual) provides a written statement to the effect
that the coverage does not duplicate other coverage in effect.
(3) CIVIL MONEY PENALTY- Any person who sells a long-term care insu
rance policy under the demonstration project in violation of requirements impose
d under subsection (e) or who violates paragraph (1) or (2) of this subsection i
s subject to a civil money penalty of not to exceed $25,000 for each such violat
ion. The provisions of section 1128A of the Social Security Act (other than the
first sentence of subsection (a) and other than subsection (b)) shall apply to a
civil money penalty under the previous sentence in the same manner as such prov
isions apply to a penalty or proceeding under section 1128A(a) of such Act.
(g) APPLICATION, DURATION, AND ELIGIBILITY-
(1) An application to the Secretary from the State for approval of
the project shall be deemed granted unless the Secretary, within 90 days after t
he date of its submission to the Secretary, either denies such application in wr
iting or informs the State in writing with respect to any additional information
which is needed in order to make a final determination with respect to the appl
ication. After the date the Secretary receives such additional information, the
application shall be deemed granted unless the Secretary, within 90 days of such
date, denies such application.
(2) Any termination of a project shall not affect covered long-term
care beneficiaries who purchased qualified long-term care insurance policies be
fore the termination date.
(h) ANNUAL STATE REPORTS- The State shall annually (during the duration
of such project) report to the Secretary on--
(1) the number of individuals enrolled in the demonstration project
in such State;
(2) the number of enrollees actually receiving long-term care servi
ces under such demonstration project (whether through long-term care insurance o
r medical assistance under title XIX of the Social Security Act);
(3) the number of enrollees actually receiving long-term care in th
e form of medical assistance;
(4) the average income, age, and assets of each enrollee; and
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(5) the number and characteristics of private insurers with policie
s approved by the State under the demonstration project.
(i) SECRETARY'S REPORTS- The Secretary shall submit to Congress reports
on projects under this section. The first such report shall be submitted in 199
7 and subsequent reports shall be submitted each 6th year thereafter until 2021.
Each such report shall summarize and analyze information reported by the State
under subsection (h), and shall evaluate the cost effectiveness of the projects.
SEC. 4472. TIMELY PAYMENT UNDER WAIVERS OF FREEDOM OF CHOICE OF HOSPITAL
SERVICES.
(a) IN GENERAL- Section 1915(b)(4) of the Social Security Act (42 U.S.C
. 1396n(b)(4)) is amended by inserting before the period at the end the followin
g: `and if providers under such restriction are paid on a timely basis in the sa
me manner as health care practitioners must be paid under section 1902(a)(37)(A)
'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall take eff
ect as of the first calendar quarter beginning more than 30 days after the date
of the enactment of this Act.
SEC. 4473. HOME AND COMMUNITY-BASED SERVICES WAIVERS.
(a) CLARIFYING DEFINITION OF ROOM AND BOARD-
(1) IN GENERAL- Subsections (c)(1) and (d)(1) of section 1915 of th
e Social Security Act (42 U.S.C. 1396n) are each amended by adding at the end th
e following: `For purposes of this subsection, the term `room and board' shall n
ot include the portion of costs of rent and food attributable to an unrelated pe
rsonal caregiver who is residing in the same household with an individual who, b
ut for the assistance of such caregiver, would require admission to a hospital,
nursing facility, or intermediate care facility for the mentally retarded.'.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall appl
y to services furnished on or after the date of the enactment of this Act.
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(b) TREATMENT OF PERSONS WITH MENTAL RETARDATION OR A RELATED CONDITION
IN A DECERTIFIED FACILITY-
(1) IN GENERAL- Section 1915(c)(7) of such Act (42 U.S.C. 1396n(c)(
7)) is amended by adding at the end the following new subparagraph:
`(C) In making estimates under paragraph (2)(D) in the case of a waiver
to the extent that it applies to individuals with mental retardation or a relat
ed condition who are resident in an intermediate care facility for the mentally
retarded the participation of which under the State plan is terminated, the Stat
e may determine the average per capita expenditures that would have been made in
a fiscal year for those individuals without regard to any such termination.'.
(2) EFFECTIVE DATE- The amendment made by paragraph (1) shall apply
as if included in the enactment of the Omnibus Budget Reconciliation Act of 198
1, but shall only apply to facilities the participation of which under a State p
lan under title XIX of the Social Security Act is terminated on or after the dat
e of the enactment of this Act.
(c) SCOPE OF RESPITE CARE-
(1) IN GENERAL- Section 1915(c)(4) of such Act is amended by adding
at the end the following:
`Except as provided under paragraph (2)(D), the Secretary may not restric
t the number of hours or days of respite care in any period which a State may pr
ovide under a waiver under this subsection.'.
(2) EFFECTIVE DATE- The amendment made by paragraph (1) shall apply
as if included in the enactment of the Omnibus Budget Reconciliation Act of 198
1.
(d) PERMITTING ADJUSTMENT IN ESTIMATES TO TAKE INTO ACCOUNT PREADMISSIO
N SCREENING REQUIREMENT- In the case of a waiver under section 1915(c) of the So
cial Security Act for individuals with mental retardation or a related condition
in a State, the Secretary of Health and Human Services shall permit the State t
o adjust the estimate of average per capita expenditures submitted under paragra
ph (2)(D) of such section, with respect to such expenditures made on or after Ja
nuary 1, 1989, to take into account increases in expenditures for, or utilizatio
n of, intermediate care facilities for the mentally retarded resulting from impl
ementation of section 1919(e)(7)(A) of such Act.
SEC. 4474. PROVISIONS RELATING TO FRAIL ELDERLY DEMONSTRATION PROJECT WAI
VERS.
(a) EXPANSION OF WAIVERS- Section 9412(b) of the Omnibus Budget Reconci
liation Act of 1986 is amended--
(1) in paragraph (1), by striking `10' and inserting `15'; and
(2) by adding at the end the following new paragraph:
`(3) In the case of an organization receiving an initial waiver und
er this subsection on or after October 1, 1990, the Secretary (at the request of
the organization) shall not require the organization to provide services under
title XVIII of the Social Security Act on a capitated or other risk basis during
the first 2 years of the waiver.'.
(b) APPLICATION OF SPOUSAL IMPOVERISHMENT RULES- (1) Section 1924(a) of
the Social Security Act (42 U.S.C. 1396r-5(a)) is amended by adding at the end
the following new paragraph:
`(5) APPLICATION TO INDIVIDUALS RECEIVING SERVICES FROM ORGANIZATIO
NS RECEIVING CERTAIN WAIVERS- This section applies to individuals receiving serv
ices from any organization receiving a frail elderly demonstration project waive
r under section 9412(b) of the Omnibus Budget Reconciliation Act of 1986.'.
(2) Section 9412(b) of the Omnibus Budget Reconciliation Act of 1986, a
s amended by subsection (a), is amended by adding at the end the following new p
aragraph:
`(4) Section 1924 of the Social Security Act shall apply to any ind
ividual receiving services from an organization receiving a waiver under this su
bsection.'.
Subpart E--Miscellaneous
SEC. 4481. MEDICAID STATE PLANS ASSURING THE IMPLEMENTATION OF A PATIENT'
S RIGHT TO PARTICIPATE IN AND DIRECT HEALTH CARE DECISIONS AFFECTING THE PATIENT
.
(a) IN GENERAL- Section 1902 of the Social Security Act (42 U.S.C. 1396
a(a)), as amended by sections 4401(a)(2) and 4423(a) of this title, is amended--
(A) by striking `and' at the end of paragraph (54),
(B) by striking the period at the end of paragraph (55) and ins
erting `; and', and
(C) by inserting after paragraph (55) the following new paragra
ph:
`(56) provide that each hospital, nursing facility, provider of hom
e health care or personal care services, hospice program, or health maintenance
organization (as defined in section 1903(m)(1)(A)) receiving funds under the pla
n shall comply with the requirement of subsection (u).'; and
(2) by adding, after the subsections added by sections 4441(a) and
4451(a)(2) of this title, the end the following new subsection:
`(u)(1) For purposes of subsection (a)(56) and sections 1903(m)(1)(A) a
nd 1919(c)(2)(E), the requirement of this subsection is that a provider or organ
ization (as the case may be) maintain written policies and procedures with respe
ct to all adult individuals receiving medical care by or through the provider or
organization--
`(A) to provide written information to each such individual concern
ing--
`(i) an individual's rights under State law (whether statutory
or as recognized by the courts of the State) to make decisions concerning such m
edical care, including the right to accept or refuse medical or surgical treatme
nt and the right to formulate advance directives (as defined in paragraph (3)),
and
`(ii) the provider's or organization's written policies respect
ing the implementation of such rights;
`(B) to document in the individual's medical record whether or not
the individual has executed an advance directive;
`(C) not to condition the provision of care or otherwise discrimina
te against an individual based on whether or not the individual has executed an
advance directive;
`(D) to ensure compliance with requirements of State law respecting
advance directives; and
`(E) to provide (individually or with others) for education for sta
ff and the community on issues concerning advance directives.
Subparagraph (C) shall not be construed as requiring the provision of car
e which conflicts with an advance directive.
`(2) The written information described in paragraph (1)(A) shall be pro
vided to an adult individual--
`(A) in the case of a hospital, at the time of the individual's adm
ission as an inpatient,
`(B) in the case of a nursing facility, at the time of the individu
al's admission as a resident,
`(C) in the case of a provider of home health care or personal care
services, in advance of the individual coming under the care of the provider,
`(D) in the case of a hospice program, at the time of initial recei
pt of hospice care by the individual from the program, and
`(E) in the case of a health maintenance organization, at the time
of enrollment of the individual with the organization.
`(3) In this subsection, the term `advance directive' means a written i
nstruction, such as a living will or durable power of attorney for health care,
recognized under State law and relating to the provision of such care when the i
ndividual is incapacitated.'.
(b) CONFORMING AMENDMENTS-
(1) Section 1903(m)(1)(A) of such Act (42 U.S.C. 1396b(m)(1)(A)) is
amended--
(A) by inserting `meets the requirement of section 1902(s)' aft
er `which' the first place it appears, and
(B) by inserting `meets the requirement of section 1902(a) and'
after `which' the second place it appears.
(2) Section 1919(c)(2) of such Act (42 U.S.C. 1396r(c)(2)) is amend
ed by adding at the end the following new subparagraph:
`(E) INFORMATION RESPECTING ADVANCE DIRECTIVES- A nursing facil
ity must comply with the requirement of section 1902(u) (relating to maintaining
written policies and procedures respecting advance directives).'.
(c) EFFECTIVE DATE- The amendments made by this section shall apply wit
h respect to services furnished on or after the first day of the first month beg
inning more than 1 year after the date of the enactment of this Act.
(d) STUDY TO ASSESS IMPLEMENTATION OF A PATIENT'S RIGHT TO PARTICIPATE
IN AND DIRECT HEALTH CARE DECISIONS AFFECTING THE PATIENT-
(1) IN GENERAL- The Secretary of Health and Human Services shall (s
ubject to paragraph (2)) enter into an agreement with the Institute of Medicine
of the National Academy of Sciences to conduct a study with respect to the conte
xt in which directed health care decisions (including advance directives) are ma
de and carried out, including the incidence and processes of decision-making abo
ut life-sustaining treatment that occur with and without advance directives.
(2) ARRANGEMENTS FOR STUDY- The Secretary shall request the Institu
te of Medicine of the National Academy of Sciences to submit an application to c
onduct the study described in paragraph (1). If the Institute submits an accepta
ble application, the Secretary shall enter into an appropriate arrangement with
the Academy for the conduct of the study within 28 days of the date the applicat
ion is received. If the Institute does not submit an acceptable application to c
onduct the study, the Secretary may request one or more appropriate nonprofit pr
ivate entities to submit an application to conduct the study and may enter into
an appropriate arrangement for the conduct of the study by the entity which subm
its the best acceptable application.
(3) REPORT- The results of the study shall be reported to the Commi
ttees on Ways and Means and Energy and Commerce of the House of Representatives
and the Committee on Finance of the Senate and the Secretary by not later than 4
years after the date of the enactment of this Act. Such report shall include su
ch recommendations for legislation as may be appropriate to carry out further th
e purpose of this section.
(e) PUBLIC EDUCATION DEMONSTRATION PROJECT- The Secretary of Health and
Human Services, no later than 6 months after the date of the enactment of this
Act, shall develop and implement a demonstration project in selected States to i
nform the public of the option to execute advance directives and of a patient's
right to participate and direct health care decisions. The Secretary shall repor
t to the Committees on Ways and Means and Energy and Commerce of the House of Re
presentatives and the Committee on Finance of the Senate on the results of the p
roject and on whether such project should be extended.
SEC. 4482. IMPROVEMENT IN QUALITY OF PHYSICIAN SERVICES.
(a) USE OF UNIQUE PHYSICIAN IDENTIFIERS-
(1) ESTABLISHMENT OF SYSTEM-
(A) IN GENERAL- Section 1902 of the Social Security Act (42 U.S
.C. 1396a) is amended by adding after the subsections added by sections 4441(a),
4451(a)(2), and 4481(a)(2) of this title, the following new subsection:
`(v) The Secretary shall establish a system, for implementation by not
later than July 1, 1991, which provides for a unique identifier for each physici
an who furnishes services for which payment may be made under a State plan appro
ved under this title.'.
(B) DEADLINE AND CONSIDERATIONS- The system established under t
he amendment made by subparagraph (A) may be the same as, or different from, the
system established under section 9202(g) of the Consolidated Omnibus Budget Rec
onciliation Act of 1985.
(2) REQUIRING INCLUSION WITH CLAIMS- Section 1903(i) of the Social
Security Act (42 U.S.C. 1396b(i)), as amended by sections 4401(a)(1)(B) and 4431
(e)(17) of this title, is amended--
(A) by striking the period at the end of paragraph (11) and ins
erting `; or', and
(B) by inserting after paragraph (11) the following new paragra
ph:
`(12) with respect to any amount expended for physicians' services
furnished on or after the first day of the first quarter beginning more than 60
days after the date of establishment of the physician identifier system under se
ction 1902(v), unless the claim for the services includes the unique physician i
dentifier provided under such system.'.
(b) MAINTENANCE OF ENCOUNTER DATA BY HEALTH MAINTENANCE ORGANIZATIONS-<
/ul>
(1) IN GENERAL- Section 1903(m)(2)(A) of such Act (42 U.S.C. 1396b(
m)(2)(A)), as amended by sections 4461(a) and 4461(b) of this title, is amended-
-
(A) by striking `and' at the end of clause (ix),
(B) by striking the period at the end of clause (x) and inserti
ng `; and', and
(C) by adding at the end the following new clause:
`(xi) such contract provides for maintenance of sufficient patient
encounter data to identify the physician who delivers services to patients.'.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall appl
y to contract years beginning after the date of the establishment of the system
described in section 1902(v) of the Social Security Act.
(c) MAINTENANCE OF LIST OF PHYSICIANS BY STATES-
(1) IN GENERAL- Section 1902(a) of such Act (42 U.S.C. 1396a(a)), a
s amended by sections 4401(a)(2), 4423(a), and 4481(a) of this title, is amended
--
(A) by striking `and' at the end of paragraph (55),
(B) by striking the period at the end of paragraph (56) and ins
erting `; and', and
(C) by inserting after paragraph (56) the following new paragra
ph:
`(57) maintain a list (updated not less often than monthly, and con
taining each physician's unique identifier provided under the system established
under subsection (v)) of all physicians who are certified to participate under
the State plan.'.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall appl
y to medical assistance for calendar quarters beginning more than 60 days after
the date of establishment of the physician identifier system under section 1902(
v) of the Social Security Act.
(d) FOREIGN MEDICAL GRADUATE CERTIFICATION-
(1) PASSAGE OF FMGEMS EXAMINATION IN ORDER TO OBTAIN IDENTIFIER- Th
e Secretary of Health and Human Service shall provide, in the identifier system
established under section 1902(v) of the Social Security Act, that no foreign me
dical graduate (as defined in section 1886(h)(5)(D) of such Act) shall be issued
an identifier under such system unless the individual--
(A) has passed the FMGEMS examination (as defined in section 18
86(h)(5)(E) of such Act); or
(B) has previously received certification from, or has previous
ly passed the examination of, the Educational Commission for Foreign Medical Gra
duates.
(2) EFFECTIVE DATE- Paragraph (1) shall apply with respect to issua
nce of an identifier applicable to services furnished on or after January 1, 199
2.
(e) MINIMUM QUALIFICATIONS FOR BILLING FOR PHYSICIANS' SERVICES TO CHIL
DREN AND PREGNANT WOMEN- Section 1903(i) of the Social Security Act (42 U.S.C. 1
396b(i)), as amended by sections 4401(a)(1)(B) and 4431(e)(17) of this title and
subsection (a)(2) of this section, is further amended--
(1) by striking the period at the end of paragraph (13) and inserti
ng `; or'; and
(2) by inserting after paragraph (13) the following new paragraph:<
/ul>
`(14) with respect to any amount expended for physicians' services
furnished by a physician on or after January 1, 1992, to--
`(A) a child under 21 years of age, unless the physician--
`(i) is certified in family practice or pediatrics by the m
edical specialty board recognized by the American Board of Medical Specialties f
or family practice or pediatrics,
`(ii) is employed by, or affiliated with, a Federally-quali
fied health center (as defined in section 1905(l)(2)(B)),
`(iii) holds admitting privileges at a hospital participati
ng in a State plan approved under this title,
`(iv) is a member of the National Health Service Corps, or<
/ul>
`(v) documents a current, formal, consultation and referral
arrangement with a pediatrician or family practitioner who has the certificatio
n described in clause (i) for purposes of specialized treatment and admission to
a hospital; or
`(B) to a pregnant woman (or during the 60 day period beginning
on the date of termination of the pregnancy) unless the physician--
`(i) is certified in family practice or obstetrics by the m
edical specialty board recognized by the American Board of Medical Specialties f
or family practice or obstetrics,
`(ii) is employed by, or affiliated with, a Federally-quali
fied health center (as defined in section 1905(l)(2)(B)),
`(iii) holds admitting privileges at a hospital participati
ng in a State plan approved under this title,
`(iv) is a member of the National Health Service Corps, or<
/ul>
`(v) documents a current, formal, consultation and referral
arrangement with an obstetrician or family practitioner who has the certificati
on described in clause (i) for purposes of specialized treatment and admission t
o a hospital.'.
(f) REPORTING OF MISCONDUCT OR SUBSTANDARD CARE-
(1) IN GENERAL- Section 1921(a) of such Act (42 U.S.C. 1396r-2(a))
is amended--
(A) in paragraph (1), in the matter before subparagraph (A), by
inserting `(or any peer review organization or private accreditation entity rev
iewing the services provided by health care practitioners)' after `health care p
ractitioners'; and
(B) in paragraph (1), by adding at the end the following new su
bparagraph:
`(D) Any negative action or finding by such authority, organiza
tion, or entity regarding the practitioner or entity.'.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall appl
y to State information reporting systems as of January 1, 1992, without regard t
o whether or not the Secretary of Health and Human Services has promulgated any
regulations to carry out such amendments by such date.
SEC. 4483. CLARIFICATION OF AUTHORITY OF INSPECTOR GENERAL.
Section 1128A(j) of the Social Security Act (42 U.S.C. 1320a-7a(j)) is
amended--
(1) by striking `(j)' and inserting `(j)(1)'; and
(2) by adding at the end the following new paragraph:
`(2) The Secretary may delegate authority granted under this section an
d under section 1128 to the Inspector General of the Department of Health and Hu
man Services.'.
SEC. 4184. NOTICE TO STATE MEDICAL BOARDS WHEN ADVERSE ACTIONS TAKEN.
(a) IN GENERAL- Section 1902(a)(41) of the Social Security Act (42 U.S.
C. 1396a(a)(41)) is amended by inserting `and, in the case of a physician and no
twithstanding paragraph (7), the State medical licensing board' after `shall pro
mptly notify the Secretary'.
(b) EFFECTIVE DATE- The amendment made by subsection (a) shall apply to
sanctions effected more than 60 days after the date of the enactment of this Ac
t.
SEC. 4485. MISCELLANEOUS PROVISIONS.
(a) PSYCHIATRIC HOSPITALS-
(1) CLARIFICATION OF COVERAGE OF INPATIENT PSYCHIATRIC HOSPITAL SER
VICES-
(A) IN GENERAL- Section 1905(h)(1)(A) of the Social Security Ac
t (42 U.S.C. 1396d(h)(1)(A)), as amended by section 2340(b) of the Deficit Reduc
tion Act of 1984, is amended by inserting `or in another inpatient setting that
the Secretary has specified in regulations' after `1861(f)'.
(B) EFFECTIVE DATE- The amendment made by subparagraph (A) shal
l be effective as if included in the enactment of the Deficit Reduction Act of 1
984.
(2) INTERMEDIATE SANCTIONS FOR PSYCHIATRIC HOSPITALS- Section 1902
of the Social Security Act (42 U.S.C. 1396a) is amended by adding after the subs
ections added by sections 4441(a), 4451(a)(2), 4481(a)(2) and 4482(a)(1), the fo
llowing new subsection:
`(w)(1) In addition to any other authority under State law, where a Sta
te determines that a psychiatric hospital which is certified for participation u
nder its plan no longer meets the requirements for a psychiatric hospital (refer
red to in section 1905(h)) and further finds that the hospital's deficiencies--<
/ul>
`(A) immediately jeopardize the health and safety of its patients,
the State shall terminate the hospital's participation under the State plan; or<
/ul>
`(B) do not immediately jeopardize the health and safety of its pat
ients, the State may terminate the hospital's participation under the State plan
, or provide that no payment will be made under the State plan with respect to a
ny individual admitted to such hospital after the effective date of the finding,
or both.
`(2) Except as provided in paragraph (3), if a psychiatric hospital des
cribed in paragraph (1)(B) has not complied with the requirements for a psychiat
ric hospital under this title--
`(A) within 3 months after the date the hospital is found to be out
of compliance with such requirements, the State shall provide that no payment w
ill be made under the State plan with respect to any individual admitted to such
hospital after the end of such 3-month period, or
`(B) within 6 months after the date the hospital is found to be out
of compliance with such requirements, no Federal financial participation shall
be provided under section 1903(a) with respect to further services provided in t
he hospital until the State finds that the hospital is in compliance with the re
quirements of this title.
`(3) The Secretary may continue payments, over a period of not longer t
han 6 months from the date the hospital is found to be out of compliance with su
ch requirements, if--
`(A) the State finds that it is more appropriate to take alternativ
e action to assure compliance of the hospital with the requirements than to term
inate the certification of the hospital,
`(B) the State has submitted a plan and timetable for corrective ac
tion to the Secretary for approval and the Secretary approves the plan of correc
tive action, and
`(C) the State agrees to repay to the Federal Government payments r
eceived under this paragraph if the corrective action is not taken in accordance
with the approved plan and timetable.'.
(b) STATE UTILIZATION REVIEW SYSTEMS- Section 9432 of the Omnibus Budge
t Reconciliation Act of 1986 is amended--
(A) by inserting `(1)' after `IN GENERAL- ',
(B) by striking `, during the period' and all that follows thro
ugh `Congress,', and
(C) by adding at the end the following new paragraph:
`(2) The Secretary may not, during the period beginning on the date of
the enactment of the Omnibus Budget Reconciliation Act of 1990 and ending on the
date that is 180 days after the date on which the report required by subsection
(d) is submitted to the Congress, publish final or interim final regulations re
quiring a State plan approved under title XIX of the Social Security Act to incl
ude a program for ambulatory surgery, preadmission testing, or same-day surgery.
';
(2) in subsection (b)(4), by inserting `and subsection (d)' after `
In this subsection'; and
(3) by adding at the end the following new subsection:
`(d) REPORT- The Secretary shall report to Congress, by not later than
January 1, 1993, for each State in a representative sample of States--
`(1) an analysis of the procedures for which programs for ambulator
y surgery, preadmission testing, and same-day surgery are appropriate for patien
ts who are covered under the State medicaid plan, and
`(2) the effects of such programs on access of such patients to nec
essary care, quality of care, and costs of care.
In selecting such a sample of States, the Secretary shall include some St
ates with medicaid plans that include such programs.'.
(c) ADDITIONAL MISCELLANEOUS PROVISIONS-
(1) Effective July 1, 1990--
(A) section 1902(a)(10)(C)(iv) of the Social Security Act is am
ended by striking `through (20)' and inserting `through (21)', and
(B) section 1902(j) of such Act is amended by striking `through
(21)' and inserting `through (22)'.
(2) Effective as if included in subtitle D of title VI of the Omnib
us Budget Reconciliation Act of 1989, section 301(j) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 331(j) is amended by adding at the end the following
: `This paragraph does not authorize the withholding of information from either
House of Congress or from, to the extent of matter within its jurisdiction, any
committee or subcommittee of such committee or any joint committee of Congress o
r any subcommittee of such joint committee.'.
(3) Section 505(b) of the Social Security Act (42 U.S.C. 705(b)) is
amended in the matter preceding paragraph (1) by striking `requirement' and ins
erting `requirements'.
Subtitle C--Energy and Miscellaneous User Fees
PART 1--ENERGY
SEC. 4501. SOLAR, WIND, WASTE, AND GEOTHERMAL POWER PRODUCTION INCENTIVES
.
(a) AMENDMENTS TO PURPA- Section 210 of the Public Utility Regulatory P
olicies Act of 1978 is amended as follows:
(1) In subsection (a), strike out `, and to encourage geothermal sm
all power production facilities of not more than 80 megawatts capacity,'.
(2) In subsection (e)(2), insert `(other than a qualifying small po
wer production facility which is a solar, wind, waste, or geothermal facility as
defined in section 3(17)(E) of the Federal Power Act)' after `facility' where i
t first appears, and strike out `, or 80 megawatts for a qualifying small power
production facility using geothermal energy as its primary energy source,'.
(b) AMENDMENT OF FEDERAL POWER ACT- Section 3(17) of the Federal Power
Act is amended as follows:
(1) In subparagraph (A), insert `a facility which is a solar, wind,
waste, or geothermal facility, or' after ` `small power production facility' me
ans'.
(2) Insert at the end thereof the following new subparagraph--
`(E) `solar, wind, waste or geothermal facility' means a facili
ty which produces electric energy solely by the use, as a primary energy source,
of solar energy, wind energy, waste, or geothermal resources;'.
(c) REGULATIONS- Unless the Federal Energy Regulatory Commission otherw
ise specifies, by rule, after the enactment of this Act, any solar, wind, waste,
or geothermal facility (as defined in section 3(17)(E) of the Federal Power Act
as amended by this Act), which is a qualifying small power production facility
(as defined in subparagraph (C) of section 3(17) of the Federal Power Act as ame
nded by this Act)--
(1) shall be considered a qualifying small power production facilit
y for purposes of part 292 of title 18, Code of Federal Regulations, notwithstan
ding any size limitations contained in such part, and
(2) shall not be subject to the size limitation contained in sectio
n 292.601(b) of such part.
SEC. 4502. NRC USER FEES AND ANNUAL CHARGES.
(1) AMOUNT- The Nuclear Regulatory Commission (hereafter in this se
ction referred to as the `Commission') shall annually assess and collect such fe
es and charges as are described in subsections (b) and (c) in an amount that app
roximates 100 percent of the budget authority of the Commission in the fiscal ye
ar in which such assessment is made less any amount appropriated to the Commissi
on from the Nuclear Waste Fund in such fiscal year.
(2) FIRST ASSESSMENT- The first such assessment shall be made not l
ater than September 30, 1991, and shall be based on the budget authority of the
Commission for fiscal year 1991.
(b) FEES FOR SERVICE OR THING OF VALUE- Pursuant to section 9701 of tit
le 31, United States Code, any person who receives a service or thing of value f
rom the Commission shall pay fees to cover the Commission's costs in providing a
ny such service or thing of value.
(1) PERSONS SUBJECT TO CHARGE- Any person who holds a license issue
d under section 103 or 104 b. of the Atomic Energy Act of 1954 (42 U.S.C. 2133,
2134(b)) that authorizes such person to operate a utilization facility with a ra
ted thermal capacity in excess of 50,000,000 watts shall pay, in addition to the
fees set forth in subsection (b), an annual charge.
(2) AGGREGATE AMOUNT OF CHARGES- The aggregate amount of the annual
charge collected from all persons described in paragraph (1) shall equal an amo
unt that approximates 100 percent of the budget authority of the Commission in t
he fiscal year in which such charge is collected, less any amount appropriated t
o the Commission from the Nuclear Waste Fund and the amount of fees collected un
der subsection (b) in such fiscal year.
(3) AMOUNT PER LICENSEE- The Commission shall establish, by rule, a
schedule of charges fairly and equitably allocating the aggregate amount of cha
rges described in paragraph (2) among the licensees described in paragraph (1).
The charges shall have a reasonable relationship to the cost of providing regula
tory services and may be based on the allocation of the Commission's resources a
mong licensees or classes of licensees described in paragraph (1).
(d) DEFINITION- As used in this section, `Nuclear Waste Fund' means the
fund established pursuant to section 302(c) of the Nuclear Waste Policy Act of
1982 (42 U.S.C. 10222(c)).
(e) REPEAL- Title VII of the Consolidated Omnibus Budget Reconciliation
Act of 1985 (Public Law 99-272) is amended by striking subtitle G. This repeal
shall become effective upon promulgation of the Nuclear Regulatory Commission's
final rule implementing this section.
PART 2--RAILROAD USER FEES
SEC. 4511. AMENDMENTS TO FEDERAL RAILROAD SAFETY ACT OF 1970.
(a) USER FEES- The Federal Railroad Safety Act of 1970 (45 U.S.C. 431 e
t seq.) is amended by adding at the end the following new section:
`SEC. 216. USER FEES.
`(a)(1) The Secretary shall establish a schedule of fees to be assessed
equitably to railroads, in reasonable relationship to an appropriate combinatio
n of criteria such as revenue ton-miles, track miles, passenger miles, or other
relevant factors, but shall not be based on the proportion of industry revenues
attributable to a railroad or class of railroads.
`(2) The Secretary shall establish procedures for the collection of suc
h fees. The Secretary may use the services of any Federal, State, or local agenc
y or instrumentality to collect such fees, and may reimburse such agency or inst
rumentality a reasonable amount for such services.
`(3) Fees established under this section shall be assessed to railroads
subject to this Act and shall cover the costs of administering this Act, other
than activities described in section 202(a)(2).
`(b) The Secretary shall assess and collect fees described in subsectio
n (a) with respect to each fiscal year before the end of such fiscal year.
`(c) All fees collected under subsection (b) shall be deposited into th
e General Fund of the United States Treasury as offsetting receipts and shall be
used, to the extent provided in advance in appropriations Acts, only to carry o
ut activities under this Act.
`(d) Fees established under subsection (a) shall be assessed in an amou
nt sufficient to cover activities described in subsection (c) beginning on March
1, 1991, but at no time shall the aggregate of fees received for any fiscal yea
r under this section exceed 105 percent of the aggregate of appropriations made
for such fiscal year for activities to be funded by such fees.
`(e)(1) Within 90 days after the end of each fiscal year in which fees
are collected pursuant to this section, the Secretary shall report to the Congre
ss--
`(A) the amount of fees collected during that fiscal year;
`(B) the impact of such fee collections on the financial health of
the railroad industry and its competitive position relative to each competing mo
de of transportation; and
`(C) the total cost of Federal safety activities for each such othe
r mode of transportation, including the portion of that total cost, if any, defr
ayed by Federal user fees.
`(2) With respect to any fiscal year for which the Secretary's report s
ubmitted under paragraph (1) finds--
`(A) any impact of fees collected under this section either on the
financial health of the railroad industry, or on its competitive position relati
ve to competing modes of transportation; or
`(B) any significant difference in the burden of Federal user fees
borne by the railroad industry and those applicable to competing modes of transp
ortation,
the Secretary shall, within 90 days after submission of such report, prep
are and submit to the Congress specific recommendations for legislation to corre
ct any such impact or difference.
`(f) This section shall expire on September 30, 1995.'.
(b) AUTHORIZATION OF APPROPRIATIONS- Section 214(a) of the Federal Rail
road Safety Act of 1970 (45 U.S.C. 444(a)) is amended to read as follows:
`(a) There are authorized to be appropriated to carry out this Act not
to exceed $46,884,000 for fiscal year 1991.'.
PART 3--EPA USER FEES
SEC. 4521. RADON TESTING FEES.
For provisions of law providing for the charging by the Environmental P
rotection Agency of fees relating to radon testing fees, see section 305(e)(2) o
f the Toxic Substances Control Act.
SEC. 4522. MOTOR VEHICLE COMPLIANCE PROGRAM FEES.
For provisions providing for the charging by the Environmental Protecti
on Agency of motor vehicle compliance program fees, see section 217 of H.R. 3030
(`Clean Air Act Amendments of 1990', as passed the House of Representatives (10
1st Congress).
TITLE V--COMMITTEE ON INTERIOR AND INSULAR AFFAIRS.
Subtitle A--Nuclear Regulatory Commission User Fees
SEC. 5101. USER FEES AND ANNUAL CHARGES.
(a) AMENDMENT TO ATOMIC ENERGY ACT- Chapter 19 of the Atomic Energy Act
of 1954 (42 U.S.C. 2015 et seq.) is amended by adding at the end the following
new section:
`SEC. 292. USER FEES AND ANNUAL CHARGES.
`(1) AMOUNT- The Nuclear Regulatory Commission (hereafter in this s
ection referred to as the `Commission') shall annually assess and collect such f
ees and charges as are described in subsections (b) and (c) in an amount that ap
proximates 100 percent of the budget authority of the Commission in the fiscal y
ear in which such assessment is made less any amount appropriated to the Commiss
ion from the Nuclear Waste Fund in such fiscal year.
`(2) FIRST ASSESSMENT- The first such assessment shall be made not
later than September 30, 1991, and shall be based on the budget authority of the
Commission for fiscal year 1991.
`(b) FEES FOR SERVICE OR THING OF VALUE- Pursuant to section 9701 of ti
tle 31, United States Code, any person who receives a service or thing of value
from the Commission shall pay fees to cover the Commission's costs in providing
any such service or thing of value.
`(1) PERSONS SUBJECT TO CHARGE- Any person who holds a license issu
ed under section 103 or 104 b. that authorizes such person to operate a utilizat
ion facility with a rated thermal capacity in excess of 50,000,000 watts shall p
ay, in addition to the fees set forth in subsection (b), an annual charge.
<
/ul>
`(2) AGGREGATE AMOUNT OF CHARGES- The aggregate amount of the annua
l charge collected from all persons described in paragraph (1) shall equal an am
ount that approximates 100 percent of the budget authority of the Commission in
the fiscal year in which such charge is collected, less any amount appropriated
to the Commission from the Nuclear Waste Fund and the amount of fees collected u
nder subsection (b) in such fiscal year.
`(3) AMOUNT PER LICENSEE- The Commission shall establish, by rule,
a schedule of charges fairly and equitably allocating the aggregate amount of ch
arges described in paragraph (2) among the licensees described in paragraph (1).
The charges shall have a reasonable relationship to the cost of providing regul
atory services and may be based on the allocation of the Commission's resources
among licensees or classes of licensees described in paragraph (1).
`(d) DEFINITION- As used in this section, `Nuclear Waste Fund' means th
e fund established pursuant to section 302 (c) of the Nuclear Waste Policy Act o
f 1982 (42 U.S.C. 10222 (c)).'.
(b) REPEAL- Title VII of the Consolidated Omnibus Budget Reconciliation
Act of 1985 (Public Law 99-272) is amended by striking subtitle G. This repeal
shall become effective upon promulgation of the Nuclear Regulatory Commission's
final rule implementing section 292 of the Atomic Energy Act of 1954.
(c) TABLE OF CONTENTS- The table of contents of the Atomic Energy Act o
f 1954 is amended by adding after the item relating to section 291 the following
new item:
`Sec. 292. User fees and annual charges.'.
Subtitle B--Tongass Timber Reform
SEC. 5201. SHORT TITLE.
This subtitle may be cited as the `Tongass Timber Reform Act'.
CHAPTER 1--ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT AMENDMENTS
SEC. 5211. TO REQUIRE ANNUAL APPROPRIATIONS FOR TIMBER MANAGEMENT AND RES
OURCE CONSERVATION ON THE TONGASS NATIONAL FOREST.
Section 705(a) of the Alaska National Interest Lands Conservation Act (
16 U.S.C. 539d(a)) is repealed effective October 1, 1990.
SEC. 5212. IDENTIFICATION OF LANDS UNSUITABLE FOR TIMBER PRODUCTION.
Section 705(d) of the Alaska National Interest Lands Conservation Act (
16 U.S.C. 539d(d)) is hereby repealed.
SEC. 5213. FUTURE REPORTS ON THE TONGASS NATIONAL FOREST.
(a) MONITORING- Section 706(a) of the Alaska National Interest Lands Co
nservation Act (16 U.S.C. 539e(a)) is amended--
(1) by striking `the Committee on Interior and Insular Affairs' and
inserting `the Committee on Agriculture and the Committee on Interior and Insul
ar Affairs'; and
(2) by striking the second sentence and inserting the following new
sentence: `This report shall include a complete analysis of the losses or gains
sustained by the United States Government with respect to long-term, short-term
and total sales of timber from the Tongass National Forest using information fr
om the statement on revenues and expenses of the Timber Sale Program Information
Reporting System and shall display total costs, unit costs (per thousand board
feet of timber sold or released) and associated revenues, for the current and pr
evious two years of operations.'.
(b) STATUS- Section 706(b) of the Alaska National Interest Lands Conser
vation Act (16 U.S.C. 539e(b)) is amended as follows:
(1) Strike out `and (4)' and insert in lieu thereof `(4)'.
(2) Strike the period at the end of the section and insert `, (5) t
he impact of timber management on subsistence resources, wildlife, and fisheries
habitats, and (6) the steps taken by the Secretary of Agriculture under section
5241(c) of the Tongass Timber Reform Act.'.
(c) CONSULTATION- Section 706(c) of the Alaska National Interest Lands
Conservation Act (16 U.S.C. 539e(c)) is amended by striking out `and the Alaska
Land Use Council' and inserting in lieu thereof `the southeast Alaska commercial
fishing industry, and the Alaska Land Use Council'.
SEC. 5214. ADMINISTRATION.
Section 705 (16 U.S.C. 539d) of the Alaska National Interest Lands Cons
ervation Act is amended by adding at the end thereof the following:
`(e) FISHERIES PROTECTION- In order to assure protection of riparian ha
bitat, the Secretary of Agriculture shall maintain a buffer zone of a minimum of
100 feet in width within which logging shall be prohibited on each side of all
anadromous fish streams in the Tongass National Forest, and their tributaries, e
xcept those tributaries with no resident fish populations which are intermittent
in flow, or have flow of inadequate magnitude to directly influence downstream
fish habitat.
`(f) TENAKEE SPRINGS ROAD PROHIBITION- A vehicular access road connecti
ng the Indian River and Game Creek roads may not be constructed, and the Secreta
ry of Agriculture shall not engage in any further efforts to connect the city of
Tenakee Springs with the logging road system on Chichagof Island.'.
CHAPTER 2--TERMINATION OF LONG-TERM TIMBER SALE CONTRACTS IN ALASKA
SEC. 5221. TERMINATION.
Title V of the Alaska National Interest Lands Conservation Act is amend
ed by adding at the end thereof the following new section:
`SEC. 508. TERMINATION OF LONG-TERM TIMBER SALE CONTRACTS IN ALASKA.
`(a) FINDING- The Congress hereby finds and declares that it is in the
national interest to assure that valuable public resources in the Tongass Nation
al Forest are protected and wisely managed. Termination of the long-term timber
sale contracts is necessary because the contracts prevent proper Forest Service
management, allow the holders to concentrate logging in the rare, high-volume ol
d growth forest most valuable for fish and wildlife habitat, threaten natural re
source dependent communities and industries, and undermine competition within th
e southeast Alaska timber industry.
`(b) TERMINATION OF LONG-TERM TIMBER SALE CONTRACTS- Not later than 90
days after the date of enactment of this section, the Secretary of Agriculture s
hall terminate the long-term timber sale contracts numbered 12-11-010-1545 and A
10fs-1042 between the United States and Alaska Pulp Corporation, and between the
United States and Ketchikan Pulp Company, respectively.
`(c) SUBSTITUTION OF SHORT-TERM TIMBER SALES- The Secretary of Agricult
ure is authorized to make available sufficient volumes of timber to meet actual
market demand as determined pursuant to planning process specified in section 6
of the Forest and Rangeland Renewable Resources Planning Act of 1974 and other a
pplicable laws. Timber sales shall be offered for competitive bid and administer
ed consistent with standard, short-term timber sales on other national forests.'
.
CHAPTER 3--WILDERNESS
SEC. 5231. ADDITIONAL WILDERNESS AREAS.
(a) DESIGNATION- Section 703 of the Alaska National Interest Lands Cons
ervation Act is amended by adding at the end thereof the following:
`(c) DESIGNATION OF ADDITIONAL WILDERNESS ON THE TONGASS NATIONAL FORES
T- In furtherance of the purposes of the Wilderness Act (16 U.S.C. 1131-1136), t
he following lands within the Tongass National Forest in the State of Alaska are
hereby designated as wilderness and therefore as components of the National Wil
derness Preservation System:
`(1) ANAN CREEK WILDERNESS- Certain lands which comprise approximat
ely 38,415 acres, as generally depicted on a map entitled `Anan Creek Wilderness
--Proposed' and dated May 1989, which shall be known as the Anan Creek Wildernes
s.
`(2) BERNERS BAY WILDERNESS- Certain lands which comprise approxima
tely 46,135 acres, as generally depicted on a map entitled `Berners Bay Wilderne
ss--Proposed' and dated May 1989, which shall be known as the Berners Bay Wilder
ness.
`(3) CALDER-HOLBROOK WILDERNESS- Certain lands which comprise appro
ximately 68,693 acres, as generally depicted on a map entitled `Calder-Holbrook
Wilderness--Proposed' and dated May 1989, which shall be known as the Calder-Hol
brook Wilderness.
`(4) CHICHAGOF WILDERNESS- Certain lands which comprise approximate
ly 347,733 acres, as generally depicted on a map entitled `Chichagof Wilderness-
-Proposed' and dated May 1989, which shall be known as the Chichagof Wilderness.
`(5) CHUCK RIVER WILDERNESS- Certain lands which comprise approxima
tely 124,539 acres, as generally depicted on a map entitled `Chuck River Wildern
ess--Proposed' and dated May 1989, which shall be known as the Chuck River Wilde
rness.
`(6) KADASHAN WILDERNESS- Certain lands which comprise approximatel
y 34,044 acres, as generally depicted on a map entitled `Kadashan Wilderness--Pr
oposed' and dated May 1989, which shall be known as the Kadashan Wilderness.
`(7) KARTA RIVER WILDERNESS- Certain lands which comprise approxima
tely 39,886 acres, as generally depicted on a map entitled `Karta River Wilderne
ss--Proposed' and dated May 1989, which shall be known as the Karta River Wilder
ness.
`(8) KEGAN LAKE WILDERNESS- Certain lands which comprise approximat
ely 24,655 acres, as generally depicted on a map entitled `Kegan Lake Wilderness
--Proposed' and dated May 1989, which shall be known as the Kegan Lake Wildernes
s.
`(9) NAHA RIVER WILDERNESS- Certain lands which comprise approximat
ely 31,794 acres, as generally depicted on a map entitled `Naha River Wilderness
--Proposed' and dated May 1989, which shall be known as the Naha River Wildernes
s.
`(10) NUTKWA WILDERNESS- Certain lands which comprise approximately
52,654 acres, as generally depicted on a map entitled `Nutkwa Wilderness--Propo
sed' and dated May 1989, which shall be known as the Nutkwa Wilderness.
`(11) OUTSIDE ISLANDS WILDERNESS- Certain lands which comprise appr
oximately 98,572 acres, as generally depicted on a map entitled `Outside Islands
Wilderness--Proposed' and dated May 1989, which shall be known as the Outside I
slands Wilderness.
`(12) PLEASANT-LEMESURIER-INIAN ISLANDS WILDERNESS- Certain lands w
hich comprise approximately 23,140 acres, as generally depicted on a map entitle
d Pleasant-Lemesurier-Inian Islands Wilderness--Proposed' and dated May 1989, wh
ich shall be known as the Pleasant-Lemesurier-Inian Islands Wilderness.
`(13) POINT ADOLPHUS-MUD BAY WILDERNESS- Certain lands which compri
se approximately 73,346 acres, as generally depicted on a map entitled `Point Ad
olphus-Mud Bay Wilderness--Proposed' and dated May 1989, which shall be known as
the Point Adolphus-Mud Bay Wilderness.
`(14) PORT HOUGHTON-SANBORN CANAL WILDERNESS- Certain lands which c
omprise approximately 58,915 acres, as generally depicted on a map entitled `Por
t Houghton-Sanborn Canal Wilderness--Proposed' and dated May 1989, which shall b
e known as the Port Houghton-Sanborn Canal Wilderness.
`(15) ROCKY PASS WILDERNESS- Certain lands which comprise approxima
tely 75,734 acres, as generally depicted on a map entitled `Rocky Pass Wildernes
s--Proposed' and dated May 1989, which shall be known as the Rocky Pass Wilderne
ss.
`(16) SARKAR LAKES WILDERNESS- Certain lands which comprise approxi
mately 25,650 acres, as generally depicted on a map entitled `Sarkar Lakes Wilde
rness--Proposed' and dated May 1989, which shall be known as the Sarkar Lakes Wi
lderness.
`(17) SOUTH ETOLIN ISLAND WILDERNESS- Certain lands which comprise
approximately 83,642 acres, as generally depicted on a map entitled `South Etoli
n Island Wilderness--Proposed' and dated May 1989, which shall be known as the S
outh Etolin Island Wilderness.
`(18) SOUTH KUIU WILDERNESS- Certain lands which comprise approxima
tely 191,532 acres, as generally depicted on a map entitled `South Kuiu Wilderne
ss--Proposed' and dated May 1989, which shall be known as the South Kuiu Wildern
ess.
`(19) SULLIVAN ISLAND WILDERNESS- Certain lands which comprise appr
oximately 4,032 acres, as generally depicted on a map entitled `Sullivan Island
Wilderness--Proposed' and dated May 1989, which shall be known as the Sullivan I
sland Wilderness.
`(20) TRAP BAY WILDERNESS- Certain lands which comprise approximate
ly 6,667 acres, as generally depicted on a map entitled `Trap Bay Wilderness--Pr
oposed' and dated May 1989, which shall be known as the Trap Bay Wilderness.
`(21) WEST DUNCAN CANAL WILDERNESS- Certain lands which comprise ap
proximately 134,627 acres, as generally depicted on a map entitled `West Duncan
Canal Wilderness--Proposed' and dated May 1989, which shall be known as the West
Duncan Canal Wilderness.
`(22) YAKUTAT FORELANDS WILDERNESS- Certain lands which comprise ap
proximately 220,268 acres, as generally depicted on a map entitled `Yakutat Fore
lands Wilderness--Proposed' and dated May 1989, which shall be known as the Yaku
tat Forelands Wilderness.
`(23) YOUNG LAKE WILDERNESS ADDITION TO ADMIRALTY ISLAND NATIONAL M
ONUMENT- Certain lands which comprise approximately 18,702 acres, as generally d
epicted on a map entitled `Young Lake Wilderness--Proposed' and dated May 1989,
which shall be managed as an addition to the Admiralty Island National Monument.
`(d) APPLICATION OF SECTION 1315(e)- Section 1315(e) of this Act (16 U.
S.C. 3203(e)) shall not apply to the wilderness designated by subsection (c).'.<
/ul>
(b) ADMINISTRATION- Section 707 of the Alaska National Interest Lands C
onservation Act is amended by adding the following at the end thereof: `Subject
to valid existing rights, the wilderness areas designated in amendments made to
section 703(c) of this Act by the Tongass Timber Reform Act shall be administere
d by the Secretary of Agriculture in accordance with this section, except that,
in the case of such areas, any reference in the provisions of the Wilderness Act
to the effective date of the Wilderness Act (or any similar reference) shall be
deemed to be a reference to the date of enactment of the Tongass Timber Reform
Act.'.
CHAPTER 4--IMPROVEMENT OF THE MANAGEMENT OF THE TONGASS NATIONAL FOREST
SEC. 5241. MANAGEMENT OF THE TONGASS NATIONAL FOREST.
(a) FINDINGS- The Congress finds that--
(1) the commercial fishing, recreation, timber, and tourism industr
ies each make a substantial contribution to the economy of southeast Alaska and
their ability to contribute in the future depends upon balanced planning and man
agement of the Tongass National Forest; and
(2) the Secretary of Agriculture should plan and manage the Tongas
s National Forest in a manner that adequately protects and enhances fish, wildli
fe, and recreation resources, as well as timber, and should act in the long-term
best interests of all natural resources dependent industries and subsistence co
mmunities in southeast Alaska.
(b) PURPOSES- The purposes of this section are to require the Secretary
of Agriculture to--
(1) assess the extent to which planning and management of the Tonga
ss National Forest prior to the enactment of this Act has differed from planning
for, and management of, other national forests; and
(2) change, in conformance with laws applicable to the National For
est System, planning and management priorities regarding the Tongass National Fo
rest so as to assure that greater emphasis is given to the long-term best intere
sts of the commercial fishing, recreation, and tourism industries, subsistence c
ommunities in southeast Alaska, and the national interest in the fish and wildli
fe and other natural resources of the Tongass National Forest.
(c) DIRECTIVE- The Secretary of Agriculture is authorized and directed
to take such steps as are necessary in current management practices and in revis
ions of the Tongass land management plan to achieve the purposes described in su
bsection (b).
(d) OLD-GROWTH FOREST MANAGEMENT- In developing the land management pla
n for the Tongass National Forest pursuant to section 6 of the Forest and Rangel
and Renewable Resources Planning Act of 1974, the Secretary shall--
(1) provide for sustained production of old-growth forest resources
within the Tongass National Forest; and
(2) upon completion of the draft of such plan, which shall be compl
eted in any event not later than one year after the date of enactment of this Ac
t, report to the Committees on Agriculture and on Interior and Insular Affairs o
f the House of Representatives and the Committee on Agriculture, Nutrition, and
Forestry of the Senate on provisions incorporated into such plan to meet the obj
ective set forth in paragraph (1). The report shall include--
(A) the definition of the term `old-growth forest' used for pur
poses of such plan;
(B) the quantity and distribution of old-growth forest in the T
ongass National Forest;
(C) the management objectives and guidelines incorporated into
such plan to provide for sustained production of old-growth forest resources;
(D) the criteria used to determine how to integrate old-growth
forest management objectives into the plan; and
(E) the relationship between old-growth forest management objec
tives and other resource management goals affecting timber, fish and wildlife, w
ater quality, recreation, subsistence uses, and aesthetics.
Subtitle C--Oil Shale Claims Reform
SEC. 5301. FINDINGS.
(1) Certain oil shale mining claims were located pursuant to the Ge
neral Mining Act of May 10, 1872, before enactment of the Mineral Leasing Act of
February 25, 1920, which provides for the leasing of that mineral.
(2) Section 37 of the Mineral Leasing Act permitted oil shale claim
s that were `maintained in compliance with the laws under which initiated' to be
perfected under such laws.
(3) The holders of those oil shale claims that have not been patent
ed have been afforded ample opportunity to apply for patents over the last 70 ye
ars but have failed to take such action.
(4) Both the Mining Act of 1872 and the Mineral Leasing Act were in
tended to accomplish the development of the mineral resources of the Nation, inc
luding oil shale.
(5) Almost none of the oil shale claims have been developed for the
ir oil shale in the intervening 70 years.
(6) The continued existence of these oil shale claims restricts the
lands from the development of other minerals which may exist on the claimed lan
ds.
(7) The continued existence of these oil shale claims interferes wi
th the effective management of Federal lands.
(8) Issuing patents at this time for claims for which a right to pa
tent has not vested would likely result in nonmineral development contrary to th
e intent of the Mining Act of 1872 and the Mineral Leasing Act.
(9) The lands embraced in an unpatented claim remain subject to the
disposing power of the Congress until all conditions imposed by law for issuanc
e of a patent are fully satisfied.
(10) Either the conversion of valid oil shale claims to leases or r
equiring diligent work toward production on such claims, together with the cance
llation of invalid claims, would promote mineral development including for oil s
hale.
(11) It is in the public interest for these claims to be brought to
some final resolution so that Federal lands affected may be properly managed fo
r their mineral and other values in accordance with the laws and policies of the
United States.
SEC. 5302. AMENDMENT TO THE MINERAL LEASING ACT.
Section 37 of the Mineral Leasing Act (30 U.S.C. 193) is amended by ins
erting `(a)' before the first sentence and by adding the following new subsectio
ns at the end thereof:
`(b)(1) The Secretary of the Interior shall undertake an expedited prog
ram to determine the validity of all unpatented oil shale claims referred to in
subsection (a). The expedited program shall include an examination of all unpate
nted oil shale claims, including those for which a patent application has not be
en filed. If a claim is determined to be invalid, the Secretary shall promptly d
eclare the claim to be null and void and cancel it.
`(2) Not later than 30 days after the enactment of this subsection the
Secretary shall publish proposed regulations in the Federal Register containing
standards and criteria for determining the validity of all unpatented oil shale
claims referred to in subsection (a). Final regulations shall be promulgated wit
hin 180 days after the date such proposed regulations are published. The Secreta
ry shall make a determination with respect to the validity of each such claim wi
thin 2 years after the promulgation of such final regulations. In making such de
terminations the Secretary shall give priority to those claims which meet the re
quirements of paragraphs (1) and (2) of subsection (c) and subsection (f).
`(c) Except as provided in subsection (f), after January 24, 1989, no p
atent shall be issued by the United States for any oil shale claim referred to i
n subsection (a) unless the Secretary of the Interior determines that, for the c
laim concerned--
`(1) a patent application was filed with the Secretary on or before
January 24, 1989, and
`(2) all requirements established under sections 2329, 2330, 2331,
and 2333 of the Revised Statutes (30 U.S.C. 35, 36, and 37) were fully complied
with by that date.
`(d)(1) The holder of each oil shale claim for which no patent may be i
ssued by reason of subsection (c) shall make an election under paragraph (2) or
paragraph (3) of this subsection. Not later than 30 days after the enactment of
this subsection, the Secretary shall notify the holder of each such claim of the
requirement to make such election. The holder shall make the election by certif
ied mail within 60 days after receiving such notification. Failure to make an el
ection within such period, shall be deemed conclusively to constitute a forfeitu
re of the claim and the claim shall be null and void.
`(2) The holder of a claim required to make an election under this subs
ection may elect to apply to the Secretary for a lease under section 21. The Sec
retary shall promptly provide a lease application to any claimholder who makes s
uch election and the claimholder shall file an application for a lease within 90
days after receiving such application. Upon receiving such an application the S
ecretary shall issue a lease to the holder of such claim for the area covered by
the claim if the claim is determined to be valid. A lease under this paragraph
shall be issued in accordance with the provisions of section 21 except as follow
s:
`(A) The term of the lease shall be 20 years and for so long therea
fter as oil shale or associated minerals are produced annually in commercial qua
ntities from the lease.
`(B) The acreage limitations contained in section 21(a) shall not a
pply.
`(C) The first and second provisos of section 21(a) shall not apply
.
`(D) The limitation on the number of leases to be granted to any on
e person, association, or corporation contained in section 21(a) shall not apply
.
`(E) The phrase `oil shale and gilsonite' in the first sentence of
section 21(a) shall be construed to include oil shale and all other associated m
inerals.
`(3)(A) The holder of a claim making an election under this subsection
may elect to maintain the claim by complying with such requirements as the Secre
tary shall prescribe, by rule, to assure that, during each year that oil shale o
r associated minerals are not being produced from the claim in commercial quanti
ties, the holder of such claim either makes payments in lieu of diligent develop
ment under subparagraph (B) or expends an amount annually which--
`(i) represents diligent efforts toward the production of oil shale
or associated minerals (or both),
`(ii) includes substantial work on the claim, and
`(iii) represents not less than $5,000 worth of expenditure on the
claim.
`(B) In lieu of making the expenditure described in clauses (i), (ii),
and (iii) in any year, the holder of such claim may pay the Secretary an amount
equal to $5,000 for the claim for that year. Moneys received by the Secretary un
der this subparagraph shall be disposed of in the same manner as moneys received
pursuant to section 35, except that 50 percent of such moneys shall be transfer
red to the States and 50 percent shall be deposited in the General Fund of the T
reasury.
`(C) The Secretary shall promulgate a final rule under this paragraph w
ithin 90 days after the enactment of this subsection. The annual expenditure req
uirement under such rule shall take effect on the first day of the first month o
f September which occurs more than 90 days after the enactment of this subsectio
n.
`(D) The Secretary shall review the expenditures made for each such cla
im not less frequently than annually.
`(E) In applying the provisions of section 314 of the Federal Land Poli
cy and Management Act of 1976 (43 U.S.C. 1744), the holder of a claim for which
an election under this paragraph has been made shall comply with the provisions
of subsection (a)(1) thereof only by filing (as provided in such provisions) an
affidavit that the annual expenditure (or annual payments in lieu of diligent de
velopment) requirements of this paragraph have been met with respect to such cla
im or that oil shale or associated minerals are being produced from the claim in
commercial quantities.
`(F) Failure to comply with the requirements of this paragraph and the
requirements of such section 314(a)(1) shall be deemed conclusively to constitut
e a forfeiture of the claim and the claim shall be null and void. In addition, t
he Secretary shall declare a claim to be null and void and cancel it on the earl
ier of the following:
`(i) The date on which the Secretary determines that oil shale and
associated minerals are exhausted.
`(ii) The date 100 years after the date of location of the claim.
On the date referred to in clause (ii), the Secretary shall make a determ
ination under this subparagraph and if the Secretary determines that oil shale o
r associated minerals are being produced in commercial quantities there shall be
substituted for such date the date on which the Secretary determines that oil s
hale or associated minerals cease to be produced from the claim in commercial qu
antities.
`(G) The provisions of sections 4 and 6 of the Act of August 13, 1954 (
30 U.S.C. 524 and 526), popularly known as the Multiple Minerals Development Act
, and the provisions of section 4 of the Act of July 23, 1955 (30 U.S.C. 612), p
opularly known as the Surface Resources Act, shall apply to claims for which an
election under this paragraph has been made in the same manner and to the same e
xtent as such provisions apply to the mining claims referred to therein.
`(e) In addition to other applicable requirements, any person who holds
a lease pursuant to paragraph (2) of subsection (d) or who maintains a claim pu
rsuant to paragraph (3) of subsection (d) or pursuant to subsection (f) shall be
required, by regulation, to reclaim the site subject to such lease or claim and
to post a surety bond or provide other types of financial guarantee satisfactor
y to the Secretary before disturbance of the site to ensure such reclamation. Th
e Secretary shall promulgate such regulations as may be necessary to implement t
his subsection.
`(f)(1) If a patent application was filed with the Secretary before Jan
uary 24, 1989, for an oil shale claim referred to in subsection (a) but all requ
irements established under sections 2329, 2330, 2331, and 2333 of the Revised St
atutes (30 U.S.C. 35, 36, and 37) were not fully complied with by that date, the
Secretary may issue a patent under this subsection notwithstanding the failure
to meet those requirements by that date if such requirements are subsequently me
t and the Secretary determines the claim to be valid (after review as provided i
n subsection (c)). The patent shall be limited to the oil shale and associated m
inerals on such claim. Upon compliance with such requirements, such patent may b
e issued upon payment to the Secretary of $2,000 per acre.
`(2) Any patent under this subsection shall be subject to an express re
servation of the surface of the affected lands, and the provisions of sections 4
and 6 of the Act of August 13, 1954 (30 U.S.C. 524 and 526), popularly known as
the Multiple Minerals Development Act, and of section 4 of the Act of July 23,
1955 (30 U.S.C. 612), popularly known as the Surface Resources Act, shall apply
to such claim in the same manner and to the same extent as such provisions apply
to the unpatented mining claims referred to in such provisions.
`(3) No claimholder having a claim described in this subsection shall b
e required to make an election under subsection (d).'.
Subtitle D--RECLAMATION FEES.
SEC. 5401. ABANDONED MINE RECLAMATION FUND.
(a) SOURCES OF DEPOSITS- Section 401(b) of the Surface Mining Control a
nd Reclamation Act of 1977 (30 U.S.C. 1231(b)) is amended as follows:
(1) Amend paragraph (1) to read as follows:
`(1) the reclamation fees levied under section 402;'.
(2) Strike `and' at the end of paragraph (3); strike the period at
the end of paragraph (4) and insert `; and'; and add the following new paragraph
at the end:
`(5) interest credited to the fund under subsection (e).'.
(b) USE OF MONEYS- Section 401(c) of the Surface Mining Control and Rec
lamation Act of 1977 (30 U.S.C. 1231(c)) is amended as follows:
(1) In paragraph (1), strike `402(g)(2)' and insert `402(g)(1)'.
(2) Amend paragraph (2) to read as follows:
`(2) for transfer on an annual basis to the Secretary of Agricultur
e for use under section 406;'.
(3) In paragraph (6), strike `by contract' and insert `conducted in
accordance with section 3501 of the Omnibus Budget Reconciliation Act of 1986'
after `projects'.
(4) Strike `and' at the end of paragraph (9).
(5) Strike paragraph (10) and insert the following:
`(10) for use under section 411;
`(11) for the purpose of section 507(c), except that not more than
$10,000,000 shall annually be available for such purpose; and
`(12) all other necessary expenses to accomplish the purposes of th
is subtitle.'.
(c) INTEREST- Section 401 of the Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1231) is amended by adding the following new subsection
at the end:
`(e) INTEREST- The Secretary of the Interior shall invest such portion
of the fund as is not, in his judgment, required to meet current withdrawals. Su
ch investments shall be in public debt securities with maturities suitable for t
he needs of such fund and bearing interest at rates determined by the Secretary
of the Treasury, taking into consideration current market yields on outstanding
marketable obligations of the United States of comparable maturities. The income
on such investments shall be credited to, and form a part of, the fund.'.
SEC. 5402. RECLAMATION FEES.
(a) RATE- Section 402(a) of the Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1232(a)) is amended by adding the following at the end: `
The rate at which such fee is imposed shall be modified as provided in section 4
11(a) in the case of any State or Indian tribe certified under section 411(a).'.
(b) DUE DATE- Section 402(b) of the Surface Mining Control and Reclamat
ion Act of 1977 (30 U.S.C. 1232(b)) is amended by striking `fifteen years after
the date of enactment of this Act unless extended by an Act of Congress' and ins
erting `ending September 30, 2007'.
(c) STATEMENT- Section 402(c) of the Surface Mining Control and Reclama
tion Act of 1977 (30 U.S.C. 1232(c)) is amended by adding the following at the e
nd thereof: `Such statement shall include an identification of the permittee of
the coal mining operation if different from the operator, the owner of the coal,
the preparation plant, tipple, or loading point for the coal, and the person pu
rchasing the coal from the operator. The report shall also specify the number of
the permit required under section 510 and the mine safety and health identifica
tion number. Each quarterly report shall contain a notification of any changes i
n the information required by this subsection since the date of the preceding qu
arterly report. The information contained in the quarterly reports under this su
bsection shall be maintained by the Secretary in a computerized database.'.
(d) AUDITS- Section 402(d) of the Surface Mining Control and Reclamatio
n Act of 1977 (30 U.S.C. 1232(d)) is amended by inserting `(1)' after `(d)' and
by adding the following at the end thereof:
`(2) The Secretary shall conduct such audits of coal production and the
payment of fees under this subtitle as may be necessary to ensure full complian
ce with the provisions of this subtitle. For purposes of performing such audits
the Secretary (or any duly designated officer, employee, or representative of th
e Secretary) shall, at all reasonable times, upon request, have access to, and m
ay copy, all books, papers, and other documents of any person subject to the pro
visions of this subtitle. The Secretary may at any time conduct audits of any co
al mining and reclamation operation, including without limitation, tipples and p
reparation plants, as may be necessary in the judgment of the Secretary to ensur
e full and complete payment of the fees under this subtitle.'.
(e) NOTICE- Section 402(f) of the Surface Mining Control and Reclamatio
n Act of 1977 (30 U.S.C. 1232(f)) is amended by adding the following at the end
thereof: `Whenever the Secretary believes that any person has not paid the full
amount of the fee payable under subsection (a) the Secretary shall notify the Fe
deral agency responsible for ensuring compliance with the provisions of section
4121 of the Internal Revenue Code of 1986.'.
SEC. 5403. ALLOCATION OF FUNDS.
Section 402(g) of the Surface Mining Control and Reclamation Act of 197
7 (30 U.S.C. 1232(g)) is amended to read as follows:
`(g) ALLOCATION OF FUNDS- (1) Moneys deposited into the fund shall be a
llocated by the Secretary to accomplish the purposes of this subtitle as follows
:
`(A) 50 percent of the reclamation fees collected annually in any S
tate (other than fees collected with respect to Indian lands) shall be allocated
annually by the Secretary to the State, subject to such State having each of th
e following--
`(i) An approved abandoned mine reclamation program pursuant to
section 405.
`(ii) Lands, waters, and facilities which are eligible pursuant
to section 404 (in the case of a State not certified under section 411(a)) or p
ursuant to section 411(b) (in the case of a State certified under section 411(a)
).
`(B) 50 percent of the reclamation fees collected annually with res
pect to Indian lands shall be allocated annually by the Secretary to the Indian
tribe having jurisdiction over such lands, subject to such tribe having each of
the following--
`(i) An approved abandoned mine reclamation program pursuant to
section 405.
`(ii) Lands, waters, and facilities which are eligible pursuant
to section 404 (in the case of an Indian tribe not certified under section 411(
a)) or pursuant to section 411(b) (in the case of a tribe certified under sectio
n 411(a)).
`(C) The funds allocated by the Secretary under this paragraph to S
tates and Indian tribes shall only be used for annual reclamation project constr
uction and program administration grants.
`(D) To the extent not expended within 3 years after the date of an
y grant award under this paragraph, such grant shall be available for expenditur
e by the Secretary in any area under paragraph (2), (3), (4), or (5).
`(2) 20 percent of the amounts available in the fund in any fiscal year
which are not allocated under paragraph (1) in that fiscal year (including that
interest accruing as provided in section 401(e) and including funds available f
or reallocation pursuant to paragraph (1)(C)), shall be allocated to the Secreta
ry only for the purpose of making the annual transfer to the Secretary of Agricu
lture under section 401(c)(2).
`(3) Amounts available in the fund which are not allocated to States an
d Indian tribes under paragraph (1) or allocated under paragraph (2) and paragra
ph (5) are authorized to be expended by the Secretary for any of the following:<
/ul>
`(A) For the purpose of section 507(c), either directly or through
grants to the States, subject to the limitation contained in section 401(c)(11).
`(B) For the purpose of section 410 (relating to emergencies).
`(C) For the purpose of meeting the objectives of the fund set fort
h in section 403(a) for eligible lands, waters, and facilities pursuant to secti
on 404 in States and on Indian lands where the State or Indian tribe does not ha
ve an approved abandoned mine reclamation program pursuant to section 405.
<
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`(D) For the administration of this subtitle by the Secretary.
`(4)(A) Amounts available in the fund which are not allocated under par
agraphs (1), (2), and (5) or expended under paragraph (3) in any fiscal year are
authorized to be expended by the Secretary under this paragraph for the reclama
tion or drainage abatement of lands and waters within unreclaimed sites which we
re mined for coal or which were affected by such mining, wastebanks, coal proces
sing or other coal mining processes and left in an inadequate reclamation status
.
`(B) Funds made available under this paragraph may be used for reclamat
ion or drainage abatement at a site referred to in subparagraph (A) if the Secre
tary makes either of the following findings:
`(i) A finding that the coal mining operation occurred during the p
eriod beginning on August 4, 1977, and ending on or before the date on which the
Secretary approved a State program pursuant to section 503 for State in which t
he site is located, and that any funds for reclamation or abatement which are av
ailable pursuant to a bond or other form of financial guarantee or from any othe
r source are not sufficient to provide for adequate reclamation or abatement at
the site.
`(ii) A finding that the surety of the mining operator became insol
vent prior to the date of enactment of this paragraph, and as of such date, fund
s immediately available from proceedings relating to such insolvency, or from an
y financial guarantee or other source are not sufficient to provide for adequate
reclamation or abatement at the site.
`(C) In determining which sites to reclaim pursuant to this paragraph,
the Secretary shall follow the priorities stated in paragraphs (1) and (2) of se
ction 403(a). The Secretary shall ensure that priority is given to those sites w
hich are in the immediate vicinity of a residential area or which have an advers
e economic impact upon a local community.
`(D) Amounts collected from the assessment of civil penalties under sec
tion 518 are authorized to be appropriated to carry out this paragraph.
`(E) Any State may expend grants made available under paragraphs (1) an
d (5) for reclamation and abatement of any site referred to in subparagraph (A)
if the State, with the concurrence of the Secretary, makes either of the finding
s referred to in clause (i) or (ii) of subparagraph (B) and if the State determi
nes that the reclamation priority of the site is the same or more urgent than th
e reclamation priority for eligible lands and waters pursuant to section 404 und
er the priorities stated in paragraphs (1) and (2) of section 403(a).
`(F) For the purposes of the certification referred to in section 411(a
), sites referred to in subparagraph (A) of this paragraph shall be considered a
s having the same priorities as those stated in section 403(a) for eligible land
s and waters pursuant to section 404. All sites referred to in subparagraph (A)
of this paragraph within any State shall be reclaimed prior to such State making
the certification referred to in section 411(a).
`(5) The Secretary shall allocate 40 percent of the amount in the fund
after making the allocation referred to in paragraph (1) for making additional a
nnual grants to States and Indian tribes which are not certified under section 4
11(a) to supplement grants received by such States and Indian tribes pursuant to
paragraph (1)(C) until the priorities stated in paragraphs (1) and (2) of secti
on 403(a) have been achieved by such State or Indian tribe. The allocation of su
ch funds for the purpose of making such expenditures shall be through a formula
based on the amount of coal historically produced in the State or from the India
n lands concerned prior to August 3, 1977. Funds allocated or expended by the Se
cretary under paragraph (2), (3), or (4) of this subsection for any State or Ind
ian tribe shall not be deducted against any allocation of funds to the State or
Indian tribe under paragraph (1) or under this paragraph.
`(6) Any State may receive and retain, without regard to the 3-year lim
itation referred to in paragraph (1)(D), up to 10 percent of the total of the gr
ants made annually to such State under paragraphs (1) and (5) if such amounts ar
e deposited into either--
`(A) a special trust fund established under State law pursuant to w
hich such amounts (together with all interest earned on such amounts) are expend
ed by the State solely to achieve the priorities stated in section 403(a) after
the year 2007, or
`(B) an acid mine drainage abatement and treatment fund established
under State law as provided in paragraph (7).
`(7)(A) Any State may establish under State law an acid mine drainage a
batement and treatment fund from which amounts (together with all interest earne
d on such amounts) are expended by the State to implement, in consultation with
the Soil Conservation Service, acid mine drainage abatement and treatment plans
approved by the Secretary. Such plans shall provide for the comprehensive abatem
ent of the causes and treatment of the effects of acid mine drainage within qual
ified hydrologic units affected by coal mining practices.
`(B) The plan shall include, but shall not be limited to, each of the f
ollowing:
`(i) An identification of the qualified hydrologic unit.
`(ii) The extent to which acid mine drainage is affecting the water
quality and biological resources within the hydrologic unit.
`(iii) An identification of the sources of acid mine drainage withi
n the hydrologic unit.
`(iv) An identification of individual projects and the measures pro
posed to be undertaken to abate and treat the causes or effects of acid mine dra
inage with the hydrologic unit.
`(v) The cost of undertaking the proposed abatement and treatment m
easures.
`(vi) An identification of existing and proposed sources of funding
for such measures.
`(vii) An analysis of the cost-effectiveness and environmental bene
fits of abatement and treatment measures.
`(C) The Secretary may approve any plan under this paragraph only after
determining that such plan meets the requirements of this paragraph. In conduct
ing an analysis of the items referred to in clauses (iv), (v), and (vii) the Dir
ector of the Office of Surface Mining shall obtain the comments of the Director
of the Bureau of Mines. In approving plans under this paragraph, the Secretary s
hall give a priority to those plans which will be implemented in coordination wi
th measures undertaken by the Secretary of Agriculture under section 406.
`(D) For purposes of this paragraph the term `qualified hydrologic unit
' means a hydrologic unit--
`(i) in which the water quality has been significantly affected by
acid mine drainage from coal mining practices in a manner which adversely impact
s biological resources; and
`(ii) which contains lands and waters which are--
`(I) eligible pursuant to section 404 and include any of the pr
iorities stated in section 403(a); and
`(II) proposed to be the subject of the expenditures by the Sta
te (from amounts available from the forfeiture of bonds required under section 5
09 or from other State sources) to mitigate acid mine drainage.
`(8) Of the funds available for expenditure under this subsection in an
y fiscal year the Secretary shall allocate annually not less than $2,000,000 for
expenditure in each State, and for each Indian tribe, having an approved abando
ned mine reclamation program pursuant to section 405 and, eligible lands, waters
, and facilities pursuant to section 404 so long as an allocation of funds to su
ch State or such tribe is necessary to achieve the priorities stated in paragrap
hs (1) and (2) of section 403(a).'.
SEC. 5404. FUND OBJECTIVES.
Section 403 of the Surface Mining Control and Reclamation Act of 1977 (
30 U.S.C. 1233) is amended as follows:
(1) Insert `(a) PRIORITIES- ' after `SEC. 403.'.
(2) Strike `lands and water' and insert `lands, waters, and facilit
ies'.
(3) Insert `, except as provided for under section 411,' after `tit
le'.
(4) Insert `and' after paragraph (2).
(5) Strike paragraphs (4), (5), and (6).
(6) Add at the end the following new subsections:
`(b) UTILITIES AND OTHER FACILITIES- (1) Reclamation projects involving
the protection, repair, replacement, construction or enhancement of utilities,
such as those relating to water supply, roads and such other facilities serving
the public adversely affected by coal mining practices shall be deemed part of t
he objectives set forth, and undertaken as they relate to, the priorities stated
in subsection (a).
`(2) Any State or Indian tribe not certified under section 411(a) may e
xpend up to 30 percent of the funds allocated to such State or Indian tribe in a
ny year through the grants made available under paragraphs (1) and (5) of sectio
n 402(g) for the purpose of protecting, repairing, replacing, constructing, or e
nhancing facilities relating to water supply, including water distribution facil
ities and treatment plants, to replace water supplies adversely affected by coal
mining practices.
`(3) If the adverse effect on water supplies referred to in this subsec
tion occurred both prior to and after August 3, 1977, section 404 shall not be c
onstrued to prohibit a State or Indian tribe referred to in paragraph (2) from u
sing funds referred to in such paragraph for the purposes of this subsection if
the State or Indian tribe determines that such adverse effects occurred predomin
antly prior to August 3, 1977.
`(c) INVENTORY- For the purposes of assisting in the planning and evalu
ation of reclamation projects pursuant to section 405, and assisting in making t
he certification referred to in section 411(a), the Secretary shall maintain an
inventory of eligible lands and waters pursuant to section 404 which meet the pr
iorities stated in paragraphs (1) and (2) of subsection (a). Under standardized
procedures established by the Secretary, States and Indian tribes with approved
reclamation programs pursuant to section 405 may offer amendments to update the
inventory as it applies to eligible lands and waters under the jurisdiction of s
uch States or tribes. The Secretary shall provide such States and tribes with th
e financial and technical assistance necessary for the purpose of making invento
ry amendments. The Secretary shall compile and maintain an inventory for States
and Indian lands in the case when a State or Indian tribe does not have an appro
ved reclamation program pursuant to section 405. On a regular basis, but not les
s than annually, the projects completed under this subtitle shall be so noted on
the inventory under standardized procedures established by the Secretary.'.
SEC. 5405. ELIGIBLE LANDS AND WATERS.
Section 404 of the Surface Mining Control and Reclamation Act of 1977 (
30 U.S.C. 1234) is amended by inserting `, except as provided for under section
411' after `processes', and by adding the following at the end thereof: `For oth
er provisions relating to lands and waters eligible for such expenditures, see s
ection 402(g)(4), section 403(b)(2), and section 409.'.
SEC. 5406. STATE RECLAMATION PROGRAMS.
Section 405 of of the Surface Mining Control and Reclamation Act of 197
7 (30 U.S.C. 1235) is amended by adding the following at the end thereof:
`(l) No State shall be liable under any provision of Federal law for an
y costs or damages as a result of action taken or omitted in the course of carry
ing out a State abandoned mine reclamation plan approved under this section. Thi
s subsection shall not preclude liability for cost or damages as a result of gro
ss negligence or intentional misconduct by the State. For purposes of the preced
ing sentence, reckless, willful, or wanton misconduct shall constitute gross neg
ligence.'.
SEC. 5407. CLARIFICATION.
Section 406(d) of the Surface Mining Control and Reclamation Act of 197
7 (30 U.S.C. 1236(d)) is amended by striking `experimental'.
SEC. 5408. VOIDS AND TUNNELS.
Section 409 of the Surface Mining Control and Reclamation Act of 1977 (
30 U.S.C. 1239) is amended--
(1) in subsection (a) by striking `chairman of any tribe' and inser
ting in lieu thereof `the governing body of an Indian tribe';
(2) in subsection (b), by striking `or Indian reservations under th
e provisions of subsection 402(g)' and inserting `or Indian tribes under the pro
visions of paragraphs (1) and (5) of section 402(g)'; and
(3) by amending subsection (c) to read as follows:
`(c)(1) The Secretary may make expenditures and carry out the purposes
of this section in such States where requests are made by the Governor or govern
ing body of an Indian tribe for those reclamation projects which meet the priori
ties stated in section 403(a)(1), except that for the purposes of this section t
he reference to coal in section 403(a)(1) shall not apply.
`(2) The provisions of section 404 shall apply to this section, with th
e exception that such mined lands need not have been mined for coal.
`(3) The Secretary shall not make any expenditures for the purposes of
this section in those States which have made the certification referred to in se
ction 411(a).'.
SEC. 5409. EMERGENCY PROGRAM.
Section 410 of the Surface Mining Control and Reclamation Act of 1977 (
30 U.S.C. 1240) is amended as follows:
(1) In the third sentence of subsection (b), strike `such land and
shall' and insert `such land to the extent necessary to'.
(2) Add at the end the following new subsection:
`(c) In making expenditures from the fund to undertake reclamation proj
ects for the purposes of this section, the Secretary shall ensure that all adver
se effects of coal mining practices meeting the priorities stated in paragraphs
(1) and (2) of section 403(a) which exist at such reclamation projects are abate
d through such expenditure.'.
SEC. 5410. CERTIFICATION.
Title IV of the Surface Mining Control and Reclamation Act of 1977 (30
U.S.C. 1231 et seq.) is amended as follows:
(1) Redesignate sections 411, 412, and 413 as sections 412, 413, an
d 414, respectively.
(2) Insert after section 410 the following new section:
`SEC. 411. CERTIFICATION.
`(a) MODIFICATION OF FEES- Where the Governor of a State, or the head o
f a governing body of an Indian tribe, with an approved abandoned mine reclamati
on program under section 405 certifies to the Secretary that all of the prioriti
es stated in section 403(a) for eligible lands, waters, and facilities pursuant
to section 404 have been achieved, and the Secretary, after notice in the Federa
l Register and opportunity for public comment, concurs with such certification,
the rate at which the reclamation fees are applicable to such State or tribe und
er section 402(a) shall be modified. The modified fees shall be at a rate of 18
cents per ton of coal produced by surface coal mining and 8 cents per ton of coa
l produced by underground coal mining, or 10 percent of the value of the coal at
the mine, as determined by the Secretary, whichever is less, except that the re
clamation fee for lignite coal shall be at a rate of 2 percent of the value of t
he coal of the mine, or 5 cents per ton, whichever is less. A certification unde
r this section may be issued by the Secretary on his own motion after consultati
on with the State or Indian tribe concerned and after notice in the Federal Regi
ster and opportunity for public comment. Certification under this subsection as
it relates to the modified fees may not take place until after 1992. The Secreta
ry may concur with any certification by a State or Indian tribe in any region or
certify any such State or tribe on his own motion, but may not concur with the
modified fees or modify such fees on his own motion if, upon a motion made by a
State or Indian tribe within the same region, the Secretary determines that such
modified fees would result in a significant competitive disadvantage in the pro
duction and marketing of coal for the State or Indian tribe which made such moti
on.
`(b) ELIGIBLE LANDS, WATERS, AND FACILITIES- If the Secretary has concu
rred in a State or tribal certification under subsection (a), for purposes of de
termining the eligibility of lands, waters, and facilities for annual grants und
er section 402(g)(1), section 404 shall not apply, and eligible lands, waters, a
nd facilities shall be those--
`(1) which were mined or processed for minerals or which were affec
ted by such mining or processing, and abandoned or left in an inadequate reclama
tion status prior to August 3, 1977; and
`(2) for which there is no continuing reclamation responsibility un
der State or other Federal laws.
In determining the eligibility under this subsection of Federal lands, wa
ters, and facilities under the jurisdiction of the Forest Service or Bureau of L
and Management, in lieu of the August 3, 1977, date referred to in paragraph (1)
the applicable date shall be August 28, 1974, and November 26, 1980, respective
ly.
`(c) PRIORITIES- Expenditures of moneys for lands and waters referred t
o in subsection (b) shall reflect the following objectives and priorities in the
order stated (in lieu of the priorities set forth in section 403):
`(1) The protection of public health, safety, general welfare, and
property from extreme danger of adverse effects of mineral mining and processing
practices.
`(2) The protection of public health, safety, and general welfare f
rom adverse effects of mineral mining and processing practices.
`(3) The restoration of land and water resources and the environmen
t previously degraded by the adverse effects of mineral mining and processing pr
actices.
`(d) SPECIFIC SITES AND AREAS NOT ELIGIBLE- Sites and areas designated
for remedial action pursuant to the Uranium Mill Tailings Radiation Control Act
of 1978 (42 U.S.C. 7901 and following) or which have been listed for remedial ac
tion pursuant to the Comprehensive Environmental Response Compensation and Liabi
lity Act of 1980 (42 U.S.C. 9601 and following) shall not be eligible for expend
itures from the Fund under this section.
`(e) UTILITIES AND OTHER FACILITIES- Reclamation projects involving the
protection, repair, replacement, construction, or enhancement of utilities, suc
h as those relating to water supply, roads, and such other facilities serving th
e public adversely affected by mineral mining and processing practices, and the
construction of public facilities in communities impacted by coal or other miner
al mining and processing practices, shall be deemed part of the objectives set f
orth, and undertaken as they relate to, the priorities stated in subsection (c).
`(f) APPLICATION OF OTHER PROVISIONS- The provisions of sections 407 an
d 408 shall apply to this section, except that for purposes of this section the
references to coal in sections 407 and 408 shall not apply.'.
SEC. 5411. SMALL OPERATOR ASSISTANCE.
Section 507(c) of the Surface Mining Control and Reclamation Act of 197
7 (30 U.S.C. 1257(c)) is amended by striking `100,000' and inserting `300,000'.<
/ul>
SEC. 5412. TECHNICAL AND CONFORMING AMENDMENTS.
(a) TABLE OF CONTENTS- The table of contents in the first section of th
e Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201) is amended
as follows:
(1) Redesignate the items relating to sections 411, 412, and 413 as
items 412, 413, and 414, respectively.
(2) Insert after the item relating to section 410 the following:
`Sec. 411. Certification.'.
(b) REFERENCE- Section 712(b) of the Surface Mining Control and Reclama
tion Act of 1977 (30 U.S.C. 1302(b)) is amended to read as follows:
`(b) For the implementation and funding of section 507(c), see the prov
isions of section 401(c)(11).'.
(c) REPEAL- Section 406(i) of the Surface Mining Control and Reclamatio
n Act of 1977 (30 U.S.C. 1236(i)) is repealed.
(d) TECHNICAL CORRECTIONS- The following provisions of the Surface Mini
ng Control and Reclamation Act of 1977 (30 U.S.C. 1231 and following) are amende
d as follows:
(1) Section 405(a) is amended by striking out `perparation' and ins
erting `preparation'.
(2) Section 405(h) is amended by striking out `Upon approved' and i
nserting `Upon approval'.
(3) Section 406(a) is amended by striking out `including owners' an
d inserting `(including owners'.
(4) Section 407(a)(4) is amended by striking out the period and ins
erting a semicolon.
(5) Section 407(a) is amended by striking out `Then' and inserting
`then'.
(6) Section 407(e) is amended by striking out `paragraph (1), of th
is subsection' and inserting `paragraph (1) of subsection (c)'.
(7) Section 407(g)(2) is amended by striking out `the use of' and i
nserting `the use or'.
SEC. 5413. SAVINGS CLAUSE.
Nothing in this subtitle shall be construed to affect the certification
made by the State of Wyoming to the Secretary of the Interior prior to the date
of enactment of this Act that such State has completed the reclamation of eligi
ble abandoned coal mine lands, except that for the purposes of the amendments ma
de by this subtitle, the State of Wyoming shall not be deemed to have made the c
ertification as it relates to the modified fees referred to in subsection (a) of
section 411, as added by this subtitle, until the date referred to in such subs
ection.
SEC. 5414. ABANDONED MINERALS AND MINERAL MATERIALS MINE RECLAMATION FUND
.
(a) NEW SUBTITLE- Title IV of the Surface Mining Control and Reclamatio
n Act of 1977 (30 U.S.C. 1231) is amended by inserting
`Subtitle A--Abandoned Mine Reclamation Fund'
immediately before section 401 and by adding the following new subtitle a
t the end thereof:
`Subtitle B--Abandoned Minerals and Mineral Materials Mine Reclamation Fu
nd
`SEC. 421. ABANDONED MINERALS AND MINERAL MATERIALS MINE RECLAMATION.
`(a) ESTABLISHMENT- There is established on the books of the Treasury o
f the United States a trust fund to be known as the Abandoned Minerals and Miner
al Materials Mine Reclamation Fund (hereinafter in this subtitle referred to as
the `Fund'). The Fund shall be administered by the Secretary of the Interior act
ing through the Director, Office of Surface Mining Reclamation and Enforcement.<
/ul>
`(b) AMOUNTS- The following amounts shall be credited to the Fund for t
he purposes of this Act:
`(1) All moneys received (after the commencement of the first fisca
l year beginning after the enactment of this subtitle) from the disposal of mine
ral materials pursuant to section 3 of the Act of July 31, 1947 (30 U.S.C. 603)
to the extent such moneys are not specifically dedicated to other purposes under
other authority of law.
`(2) Donations by persons, corporations, associations, and foundati
ons for the purposes of this subtitle.
`(3) Such other amounts as may be appropriated to the Fund.
`SEC. 422. USE AND OBJECTIVES OF THE FUND.
`(a) IN GENERAL- The Secretary is authorized to use moneys in the Fund
for the reclamation and restoration of land and water resources adversely affect
ed by past minerals and mineral materials mining, including but not limited to,
any of the following:
`(1) Reclamation and restoration of abandoned surface mined areas.<
/ul>
`(2) Reclamation and restoration of abandoned milling and processin
g areas.
`(3) Sealing and filling abandoned deep mine entries.
`(4) Planting of land adversely affected by past mining to prevent
erosion and sedimentation.
`(5) Prevention, abatement, treatment, and control of water polluti
on created by abandoned mine drainage.
`(6) Control of surface subsidence due to abandoned deep mines.
`(7) Such expenses as may be necessary to accomplish the purposes o
f this subtitle.
`(b) PRIORITIES- Expenditure of moneys from the Fund shall reflect the
following priorities in the order stated:
`(1) The protection of public health, safety, general welfare and p
roperty from extreme danger from the adverse effects of past minerals and minera
l materials mining practices.
`(2) The protection of public health, safety, and general welfare f
rom the adverse effects of past minerals and mineral materials mining practices.
`(3) The restoration of land and water resources previously degrade
d by the adverse effects of past minerals and mineral materials mining practices
.
`(c) UTILITIES AND OTHER FACILITIES- Reclamation projects involving the
protection, repair, replacement, construction, or enhancement of utilities, suc
h as those relating to water supply, roads, and such other facilities serving th
e public adversely affected by mineral and mineral materials mining and processi
ng practices, and the construction of public facilities in communities impacted
by mineral and mineral materials mining and processing practices, shall be deeme
d part of the objectives set forth, and undertaken as they relate to, the priori
ties stated in subsection (b).
`SEC. 423. ELIGIBLE AREAS.
`(a) ELIGIBILITY- Lands, waters, and facilities eligible for reclamatio
n expenditures under this Act shall be those--
`(1) which were mined or processed for minerals and mineral materia
ls or which were affected by such mining or processing, and abandoned or left in
an inadequate reclamation status prior to the date of enactment of this subtitl
e; and
`(2) for which there is no continuing reclamation responsibility un
der State or Federal laws.
In determining the eligibility under this subsection of Federal lands, wa
ters, and facilities under the jurisdiction of the Forest Service or Bureau of L
and Management in lieu of the date referred to in paragraph (1), the applicable
date shall be August 28, 1974, and November 26, 1980, respectively.
`(b) SPECIFIC SITES AND AREAS NOT ELIGIBLE- Sites and areas designated
for remedial action pursuant to the Uranium Mill Tailings Radiation Control Act
of 1978 (42 U.S.C. 7901 and following) or which have been listed for remedial ac
tion pursuant to the Comprehensive Environmental Response Compensation and Liabi
lity Act of 1980 (42 U.S.C. 9601 and following) shall not be eligible for expend
itures from the Fund under this subtitle.
`SEC. 424. FUND ALLOCATION AND EXPENDITURES.
`(a) ALLOCATIONS- (1) Moneys available for expenditure from the Fund sh
all be allocated on an annual basis by the Secretary in the form of grants to el
igible States, or in the form of expenditures under subsection (b), to accomplis
h the purposes of this subtitle. Such moneys may also be provided pursuant to co
operative agreements between such States and the Bureau of Land Management, the
Forest Service, or the National Park Service for such purposes.
`(2) The Secretary shall distribute moneys from the Fund to eligible St
ates and to the entities described under subsection (b) based on the greatest ne
ed for such moneys pursuant to the priorities stated in section 422(b). In deter
mining the greatest need for the distribution of moneys from the Fund, the Secre
tary shall give priority to those eligible States which do not receive grants un
der subtitle A.
`(b) DIRECT FEDERAL EXPENDITURES- Where a State is not eligible, or in
instances where the purposes of this subtitle may best be accomplished otherwise
, moneys available from the Fund may be:
`(1) Expended directly by the Secretary through the Director, Offic
e of Surface Mining Reclamation and Enforcement.
`(2) Expended through grants made by the Secretary through the Dire
ctor of the Bureau of Land Management.
`(3) Expended through grants made by the Secretary to the Chief of
United States Forest Service.
`(4) Expended through grants made by the Secretary through the Dire
ctor of the National Park Service.
`SEC. 425. STATE RECLAMATION PROGRAMS.
`(a) ELIGIBLE STATES- For the purpose of section 424(a), an `eligible S
tate' is one which the Secretary determines to meet each of the following requir
ements:
`(1) Within the State there are mined lands, waters, and facilities
eligible for reclamation pursuant to section 423.
`(2) The State has developed an inventory of such areas following t
he priorities established under section 422(b).
`(3) The State has established, and the Secretary has approved, a S
tate abandoned minerals and mineral materials mine reclamation program for the p
urpose of receiving and administering grants under this subtitle. Any State with
an approved abandoned mine reclamation program pursuant to section 405 shall be
deemed to have met the requirements of this paragraph.
`(b) MONITORING- The Secretary shall monitor the expenditure of State g
rants to ensure they are being utilized to accomplish the purposes of this subti
tle.
`(c) SUPPLEMENTAL GRANTS- In the case of any State with an approved aba
ndoned mine reclamation program pursuant to section 405, grants to such State ma
de pursuant to this subtitle may be made as a supplement to grants received by s
uch State pursuant to section 402(g)(1).
`(d) STATE PROGRAMS- (1) The Secretary shall approve any State abandone
d minerals and mineral materials mine reclamation program submitted to the Secre
tary by a State under this subtitle if the Secretary finds that the State has th
e ability and necessary State legislation to implement such program and that the
program complies with the provisions of this subtitle and the regulations of th
e Secretary under this subtitle.
`(2) No State shall be liable under any provision of Federal law for an
y costs or damages as a result of action taken or omitted in the course of carry
ing out an approved State abandoned minerals and mineral materials mine reclamat
ion program under this section. This paragraph shall not preclude liability for
cost or damages as a result of gross negligence or intentional misconduct by the
State. For purposes of the preceding sentence, reckless, willful, or wanton mis
conduct shall constitute gross negligence.
`SEC. 426. AUTHORIZATION OF APPROPRIATIONS; TERMINATION.
`(a) AUTHORIZATION OF APPROPRIATIONS- Amounts credited to the Fund are
authorized to be appropriated for the purpose of this subtitle without fiscal ye
ar limitations.
`(b) TERMINATION- The Fund established under this subtitle and the auth
orities provided in this subtitle shall terminate September 30, 2007.'.
(b) RULEMAKING- The Secretary of the Interior shall promulgate such rul
es as may be necessary to implement the amendments made by this section within 1
80 days after the enactment of this Act.
(c) CONFORMING CHANGE- All references to `this title' in sections 401 t
hrough 413 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.
1231 and following) are amended to read `this subtitle'.
(d) TABLE OF CONTENTS- The table of contents for title IV of the Surfac
e Mining Control and Reclamation Act of 1977 (30 U.S.C. 1231 and following) is a
mended by inserting
`Subtitle A--Abandoned Mine Reclamation Fund'
immediately before the item relating to section 401 and by adding the fol
lowing at the end thereof:
`Subtitle B--Abandoned Minerals and Mineral Materials Mine Reclamation Fu
nd
`Sec. 421. Abandoned minerals and mineral materials mine reclamation.
`Sec. 422. Use and objectives of fund.
`Sec. 423. Eligible areas.
`Sec. 424. Fund allocation and expenditures.
`Sec. 425. State reclamation programs.
`Sec. 426. Authorization of appropriations; termination.'.
SEC. 5415. ENVIRONMENTAL STANDARDS.
(a) NEW SECTION- Title IV of the Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1231) is amended by adding the following new section aft
er section 414:
`SEC. 415. ENVIRONMENTAL STANDARDS.
`The Secretary shall, within one year after the enactment of this secti
on, establish by regulation reasonable and effective environmental standards for
abandoned coal mine reclamation projects funded under this subtitle, and shall
develop and implement procedures to ensure that such standards are met. In promu
lgating the standards, the Secretary shall incorporate the standards set forth i
n section 515 and section 516 to the extent he deems such standards appropriate
for purposes of this subtitle.'.
(b) CONFORMING AMENDMENT- The table of contents in the first section of
the Surface Mining Control and Reclamation Act of 1977 is amended by adding the
following new item after the item relating to section 414:
`Sec. 415. Environmental standards.'.
SEC. 5416. EFFECTIVE DATE.
The amendments made by this subtitle shall take effect at the beginning
of the first fiscal year immediately following the fiscal year in which this su
btitle is enacted.
TITLE VI--COMMITTEE ON THE JUDICIARY
SEC. 601. PATENT AND TRADEMARK OFFICE USER FEES.
(a) SURCHARGES- There shall be a surcharge, during fiscal years 1991 th
rough 1995, of 56 percent, rounded by standard arithematic rules, on all fees au
thorized by subsections (a) and (b) of section 41 of title 35, United States Cod
e.
(b) USE OF FEES AND SURCHARGES- Notwithstanding section 3302 of title
31, United States Code, beginning in fiscal year 1991, all fees and surcharges c
ollected by the Patent and Trademark Office--
(1) shall be credited to the `Salaries and Expenses' account of the
Patent and Trademark Office,
(2) shall be available to the Patent and Trademark Office without a
ppropriation, for all authorized activities and operations of the office, includ
ing all direct and indirect costs of services provided by the office, and
(3) shall remain available until expended.
(c) REVISIONS- In fiscal years 1992 through 1995, surcharges establishe
d under subsection (a) may be revised periodically by the Commissioner of Patent
s and Trademarks, subject to the provisions of section 553 of title 5, United St
ates Code, in order to ensure that the following amounts, but not more than the
following amounts, of patent and trademark user fees are collected:
(1) $91,000,000 in fiscal year 1991.
(2) $95,000,000 in fiscal year 1992.
(3) $99,000,000 in fiscal year 1993.
(4) $103,000,000 in fiscal year 1994.
(5) $107,000,000 in fiscal year 1995.
(d) REPEAL- Section 105(a) of Public Law 100-703 (102 Stat. 4675) is re
pealed.
(e) REPORT ON FEES- The Commissioner of Patents and Trademarks shall st
udy the structure of all fees collected by the Patent and Trademark Office and,
not later than May 1, 1991, shall submit to the Congress a report on all fees to
be collected by the office in fiscal years 1992 through 1995. The report shall
include a proposed schedule of fees that would distribute the surcharges provide
d by subsection (a) among all fees collected by the office, and recommendations
for any statutory changes that may be necessary to implement the proposals conta
ined in the report.
SEC. 602. FEDERAL AGENCY STATUS.
For the purposes of Federal law, the Patent and Trademark Office shall
be considered a Federal agency. In particular, the Patent and Trademark Office s
hall be subject to all Federal laws pertaining to the procurement of goods and s
ervices that would apply to a Federal agency using appropriated funds, including
the Federal Property and Administrative Services Act of 1949 and the Office of
Federal Procurement Policy Act.
SEC. 603. EFFECT ON OTHER LAW.
Except for section 601(d), nothing in this title affects the provisions
of Public Law 100-703 (102 Stat. 4674 and following).
TITLE VII--MERCHANT MARINE AND FISHERIES COMMITTEE PROVISIONS
Subtitle A--Miscellaneous
SEC. 7101. AMOUNT OF TONNAGE CHARGES.
(a) INCREASE IN CHARGES- Section 4219 of the Revised Statutes of the Un
ited States (46 App. U.S.C. 121) is amended in the second paragraph--
(1) by striking `2 cents per ton, not to exceed in the aggregate 10
cents per ton in any 1 year,' and inserting `27 cents per ton, not to exceed i
n the aggregate $1.35 per ton in any 1 year,'; and
(2) by striking `6 cents per ton, not to exceed 30 cents per ton pe
r annum,' and inserting `81 cents per ton, not to exceed $4.05 per ton per annum
,'.
(b) TREATMENT OF INCREASED CHARGES- Increased tonnage charges collected
as a result of the amendments made by subsection (a) shall be deposited in the
general fund of the Treasury as offsetting receipts of the department in which t
he Coast Guard is operating and ascribed to Coast Guard activities.
SEC. 7102. COAST GUARD USER FEES.
(a) REPEAL OF PROHIBITION- Section 2110 of title 46, United States Code
, is repealed.
(b) CLERICAL AMENDMENT- The analysis for chapter 21 of title 46, United
States Code, is amended by striking the item relating to section 2110.
SEC. 7103. ENVIRONMENTAL PROTECTION AGENCY USER FEES.
(a) ESTABLISHMENT AND COLLECTION OF FEES- The Administrator of the Envi
ronmental Protection Agency shall establish and collect fees for services and th
ings of value provided by the Environmental Protection Agency with respect to--<
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(1) issuing permits under section 402 of the Federal Water Pollutio
n Control Act (33 U.S.C. 1342);
(2) issuing registrations under section 3 of the Federal Insecticid
e, Fungicide, and Rodenticide Act (7 U.S.C. 136a);
(3) reviewing notifications under section 5, and operating a radon
proficiency program under section 305, of the Toxic Substances Control Act (15 U
.S.C. 2604, 2665);
(4) issuing vehicle and engine certificates of conforming under sec
tion 206 of the Clean Air Act (42 U.S.C. 7525); and
(5) testing fuel economy under section 503 and 506 of the Motor Veh
icle Information and Cost Savings Act (15 U.S.C. 2003, 2006).
(b) AMOUNT OF FEES- Fees established and collected by the Administrator
under this section shall be in such amounts as are necessary to collect not les
s than--
(1) $22,000,000 in fiscal year 1991; and
(2) $33,000,000 in each of fiscal years 1992, 1993, 1994, and 1995.
(c) FUNCTIONS, POWERS, RESPONSIBILITIES, AND LIABILITY OF U.S. NOT AFFE
CTED- The establishment, assessment, and collection of fees under this section--
(1) shall not alter or expand the functions, powers, responsibiliti
es, and liability of the United States for the performance of services for which
such fees are established; and
(2) does not constitute an expressed or implied promise by the Unit
ed States to provide any service or perform any activity in a particular manner,
or at a particular time or place.
(d) RECEIPTS CREDITED TO ENVIRONMENTAL PROTECTION AGENCY- Amounts colle
cted by the Administrator in the form of fees under this section shall be deposi
ted in the general fund of the Treasury as proprietary receipts ascribed to Envi
ronmental Protection Agency activities.
Subtitle B--Coastal Zone Management
SEC. 7201. SHORT TITLE.
This subtitle may be cited as the `Coastal Zone Act Reauthorization Ame
ndments of 1990'.
SEC. 7202. FINDINGS AND PURPOSES.
(a) FINDINGS- The Congress finds the following:
(1) The Coastal Zone Management Act of 1972 has not been subject to
comprehensive review and amendment since 1980.
(2) The pressures of population growth are steadily increasing in t
he coastal zone, as illustrated by the fact that--
(A) over one-half of the people of the United States live and w
ork within coastal counties which encompass less than 10 percent of the United S
tates land mass;
(B) the population density of coastal counties is 5 times great
er than noncoastal counties nationwide; and
(C) growth around sensitive coastal ecosystems will continue;
(3) population growth in the coastal zone manifests itself in vario
us ways, including--
(A) increased pollution of coastal waters, particularly from no
npoint sources such as parking lots, roads, and farms;
(B) loss of wetlands and other vital habitat;
(C) diminishing opportunities for public access to shorelines;
and
(D) heightened vulnerability of coastal communities to natural
hazards and sea level rise; and
(4) because global warming may cause a substantial rise in sea leve
l with serious adverse affects on the coastal zone, coastal States should be enc
ouraged and assisted in planning for such occurrences.
(b) PURPOSES- The purposes of this subtitle are to--
(1) establish the improvement of coastal resource protection as a p
riority national goal under the Coastal Zone Management Act of 1972;
(2) establish improved incentives for State and local action to ach
ieve better coastal resource protection;
(3) revitalize the Federal coastal management program by establishi
ng a mandate for Federal leadership and technical and financial assistance in su
pport of improved coastal zone management at the regional, State, and local leve
ls; and
(4) encourage voluntary participation by all eligible coastal State
s in programs established under title II of this Act, by setting a goal of 100 p
ercent State participation by the end of fiscal year 1995.
SEC. 7203. REAUTHORIZATION OF COASTAL ZONE MANAGEMENT ACT OF 1972.
The Coastal Zone Management Act of 1972 (16 U.S.C. 1451-1464) is amende
d to read as follows:
`TITLE III--MANAGEMENT OF THE COASTAL ZONE
`SEC. 301. SHORT TITLE.
`This title may be cited as the `Coastal Zone Management Act'.
`SEC. 302. FINDINGS.
`The Congress finds the following:
`(1) It is in the national interest of the United States to manage,
protect, and develop with proper environmental safeguards, the coastal zone.
`(2) The coastal zone is rich in a variety of natural, commercial,
recreational, ecological, historical, cultural, industrial, and esthetic resourc
es of importance to the United States.
`(3) The increasing and competing demands upon the lands and waters
of the coastal zone occasioned by population growth and economic development, i
ncluding requirements for industry, commerce, residential development, recreatio
n, extraction of mineral resources and fossil fuels, transportation and navigati
on, waste disposal, and harvesting of fish, shellfish, and other living coastal
resources, have resulted in severe degradation of coastal water quality, the dec
line of living coastal resources and wildlife, permanent and adverse changes to
ecological systems, decreasing open space for public use, and shoreline erosion.
`(4) The coastal zone, and the fish, shellfish, other living coasta
l resources, and wildlife therein, are ecologically fragile and consequently ext
remely vulnerable to destruction by human alteration.
`(5) Important ecological, cultural, historic, and esthetic values
of the coastal zone which are essential to the well-being of all citizens of the
United States must be protected.
`(6) New and expanding demands for food, energy, minerals, defense
needs, recreation, waste disposal, transportation, and industrial activities in
the Great Lakes, territorial sea, Exclusive Economic Zone, and Outer Continental
Shelf are damaging these areas and create the need for resolution of conflicts
among competing uses and values in coastal and ocean waters.
`(7) Special natural and scenic characteristics of the coastal zone
are being damaged by ill-planned development that threatens these values;
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`(8) In view of competing demands and the urgent need to protect an
d give priority to maintaining natural systems in the coastal zone, present Stat
e and local capabilities to plan for and regulate land and water uses in these a
reas are inadequate.
`(9) The key to more effective protection of the land and water res
ources of the coastal zone is to encourage coastal States to exercise their full
authority over the lands and waters in the coastal zone by assisting coastal St
ates, in cooperation with the Federal and local governments and other vitally af
fected interests, in developing land and water use programs for the coastal zone
, including unified policies, criteria, standards, methods, and processes for ma
naging land and water uses in the coastal zone, as well as uses which, although
outside of the coastal zone, will affect natural resources, land uses, or water
uses in the coastal zone.
`(10) Beneficial use of the land and water resources of the coastal
zone requires consideration of activities which are of more than local signific
ance.
`(11) Land use in the coastal zone, and the use of adjacent lands w
hich drain into the coastal zone, may significantly affect the quality of coasta
l waters and habitat, and efforts to control coastal water pollution from land u
se activities must be improved.
`(12) Expeditious and environmentally sound development of offshore
energy resources is best achieved through coordination of that development with
State coastal zone management programs.
`(13) The attainment by the United States of a greater degree of en
ergy self-sufficiency will be advanced by providing Federal financial assistance
to meet State and local needs resulting from energy activity in or affecting th
e coastal zone.
`(14) Implementation of the public trust doctrine through federally
-approved State coastal zone management plans will ensure that coastal States ex
ercise their full authority over the lands, waters, and resources within their c
oastal zones fully and in accordance with that doctrine.
`SEC. 303. DECLARATION OF POLICY.
`The Congress declares that it is the policy of the United States--
`(1) to preserve, protect, develop with proper environmental safegu
ards, and where possible restore or enhance, the resources of the coastal zone f
or this and succeeding generations;
`(2) to encourage and assist coastal States to exercise effectively
their responsibilities in the coastal zone through the development, implementat
ion and continual improvement of management programs to achieve wise use of the
air, land, water, mineral, and living resources of the coastal zone, giving full
consideration to ecological, cultural, historic, and esthetic values and to nee
ds for economic development;
`(3) that the management programs approved under section 306 shall
include provisions for--
`(A) protecting natural resources, including wetlands, floodpla
ins, estuaries, beaches, dunes, maritime forests, barrier islands, coral reefs,
and fish and wildlife and their habitat, within the coastal zone;
`(B) managing coastal development to minimize--
`(i) the loss of life and property caused by improper devel
opment in flood-prone, storm surge, geologically hazardous, and erosion-prone ar
eas; and in areas likely to be affected by sea level rise, land subsidence, and
saltwater intrusion; and
`(ii) the destruction of natural protective features, such
as beaches, dunes, wetlands, maritime forests, and barrier islands;
`(C) managing coastal development to protect and restore the qu
ality of coastal waters and to prevent the impairment of existing uses of those
waters;
`(D) giving priority to water-dependent uses adjacent to coasta
l waters over other uses;
`(E) orderly processes for--
`(i) siting major facilities related to national defense, e
nergy, fisheries development, recreation, ports, and transportation; and
`(ii) locating new commercial and industrial development, t
o the maximum extent practicable, in or adjacent to areas where such development
already exists;
`(F) public access to the coasts for recreation purposes;
<
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`(G) assisting in the redevelopment of deteriorating urban wate
rfronts and ports, and preservation and restoration of historic, cultural, and e
sthetic coastal features;
`(H) coordinating and simplifying of procedures to ensure exped
ited governmental decisionmaking for the management of coastal resources;
`(I) continued consultation and coordination with, and the givi
ng of adequate consideration to, the views of affected Federal agencies;
`(J) timely and effective notification of, and opportunities fo
r public and local government participation in, coastal management decisionmakin
g;
`(K) assistance to support comprehensive planning, conservation
, and management for living coastal resources, including planning for the siting
of pollution control and aquaculture facilities within the coastal zone, and im
proved coordination between State and Federal coastal zone management agencies,
and State water quality and fish and wildlife agencies;
`(L) where the Under Secretary considers appropriate, the study
, development and implementation of management plans to address the adverse impa
cts of sea level rise and Great Lakes level rise on the coastal zone, including
coastal drinking water supplies, coastal infrastructure, ports and harbors, ener
gy facilities, coastal wetlands and other critical coastal habitat, housing, and
storm surge protection; and
`(M) an inventory and designation of areas that contain one or
more coastal resources of national significance, including criteria and procedur
es for public nomination of such areas;
`(4) to encourage the preparation of special area management plans
which provide for increased specificity in protecting--
`(A) significant natural resources;
`(B) reasonable water-dependent economic growth;
`(C) improved protection of life and property in hazardous area
s, including specifically those areas likely to be affected by sea level rise; a
nd
`(D) improved predictability in governmental decisionmaking; an
d
`(5) to encourage the participation and cooperation of the public,
State and local governments, interstate and other regional agencies, and Federal
agencies having programs affecting the coastal zone, in carrying out the purpos
es of this title.
`SEC. 304. DEFINITIONS.
`For the purposes of this title--
`(1) COASTAL RESOURCE OF NATIONAL SIGNIFICANCE- The term `coastal r
esource of national significance' means any area in the coastal zone which is de
termined by a coastal State to provide ecological, esthetic, recreational, histo
rical, or natural storm protective values which are of greater than local signif
icance.
`(2) COASTAL STATE- The term `coastal State' means a State in, or b
ordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Is
land Sound, or any of the Great Lakes, and includes the Commonwealth of Puerto R
ico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and the United States Trust Territory of the Pacific Islands.
`(3) COASTAL WATERS- The term `coastal waters' means--
`(A) in the Great Lakes area, the waters within the territorial
jurisdiction of the United States consisting of the Great Lakes, their connecti
ng waters, harbors, roadsteads, and estuary-type areas such as bays, shallows, a
nd marshes; and
`(B) in other areas, those waters adjacent to the shoreline of
any coastal State, which contain a measurable quantity or percentage of sea wate
r, including sounds, bays, lagoons, bayous, ponds, and estuaries.
The term includes wetlands adjacent to coastal waters.
`(4) COASTAL WETLANDS- The term `coastal wetlands' means wetlands w
ithin the coastal zone of any coastal State. The Under Secretary shall, not late
r than June 1, 1991, promulgate a rule in accordance with the procedures in sect
ion 553 of title 5, United States Code, defining the term `wetlands'. In connect
ion with the rulemaking required by this paragraph, the Under Secretary shall--<
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`(A) hold not less than 4 public hearings, including one in eac
h of the Gulf of Mexico, Atlantic, Pacific, and Great Lakes coastal areas; and
`(B) consult with the heads of other Federal agencies to ensure
that the definition of the term `wetlands' established by the rule is, to the m
aximum extent possible, consistent with definitions of that term applied by othe
r Federal agencies.
`(5) COASTAL ZONE- The term `coastal zone' means coastal waters (in
cluding lands therein and thereunder) and adjacent lands (including the waters t
herein and thereunder), strongly influenced by each other and in proximity to th
e shorelines of the several coastal States, and includes islands, transitional a
nd intertidal areas, salt marshes, wetlands, and beaches. The coastal zone exten
ds, in Great Lakes waters, to the international boundary between the United Stat
es and Canada, and in other areas, seaward to the outer limit of State title and
ownership under the Submerged Lands Act (43 U.S.C. 1301 et seq.), the Act of Ma
rch 2, 1917 (48 U.S.C. 749), the Covenant to Establish a Commonwealth of the Nor
thern Mariana Islands in Political Union with the United States of America, as a
pproved by the Act of March 24, 1976 (48 U.S.C. 1681 note), or section 1 of the
Act of November 20, 1963 (48 U.S.C. 1705), as applicable. The coastal zone exten
ds inland from the shoreline to the extent necessary to control lands, the uses
of which have a direct and significant impact on coastal waters. The coastal zon
e does not include lands the use of which is by law subject solely to the discre
tion of, or which is held in trust by, the Federal Government or its officers or
agents.
`(6) CRITICAL COASTAL AREA- The term `critical coastal area' means
an area identified on the basis of geological, hydrological, and ecological fact
ors and proximity to sensitive coastal waters, wetlands and habitats, to be an a
rea for which there is a significant likelihood that any new or expanded land us
e will have an adverse effect on coastal waters, either directly or through cumu
lative or secondary effects, unless appropriate land use management measures are
employed.
`(7) ENFORCEABLE POLICY- The term `enforceable policy' means State
policies which are legally binding through constitutional provisions, laws, regu
lations, land use plans, ordinances, or judicial or administrative decisions, by
which a State exerts control over private and public land and water uses and na
tural resources in the coastal zone.
`(8) ESTUARINE AREA- The term `estuarine area' includes any part or
all of an estuary, and any island, transitional area, or upland in, adjoining,
or adjacent to that estuary.
`(9) ESTUARY- The term `estuary' means a semienclosed body of coast
al water, connected to the ocean, where sea water is mixed with and measurably d
iluted by fresh water. The term includes estuary-type areas of the Great Lakes.<
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`(10) LAND USE- The term `land use' means a use, activity, or proje
ct conducted on lands within the coastal zone.
`(11) LOCAL GOVERNMENT- The term `local government' means any polit
ical subdivision of, or any special entity created by, any coastal State, which
(in whole or part) is located in, or has authority over, such State's coastal zo
ne and which--
`(A) has authority to levy taxes, or to establish and collect u
ser fees; or
`(B) provides any public facility or public service which is fi
nanced in whole or part by taxes or user fees.
The term includes any school district, fire district, transportation
authority, and any other special purpose district or authority.
`(12) MANAGEMENT PROGRAM- The term `management program' means a com
prehensive statement in words, maps, illustrations, or other media of communicat
ion, prepared and adopted by a coastal State in accordance with the provisions o
f this title, setting forth objectives, policies, and standards to guide public
and private uses of natural resources, lands, and waters in the coastal zone.
`(13) PERSON- The term `person' means any individual; any corporati
on, partnership, association, or other entity organized or existing under the la
ws of any State; the Federal Government; any State, regional, or local governmen
t; and any entity of any Federal, State, regional, or local government.
`(14) SEA LEVEL RISE- The term `sea level rise' means an increase i
n the level of the sea relative to the level of adjacent land.
`(15) SPECIAL AREA MANAGEMENT PLAN- The term `special area manageme
nt plan' means a comprehensive plan providing for natural resource protection an
d reasonable water-dependent economic growth containing a detailed and comprehen
sive statement of policies; standards and criteria to guide public and private u
ses of natural resources, lands, and waters; and mechanisms for timely implement
ation in specific geographic areas within the coastal zone.
`(16) UNDER SECRETARY- The term `Under Secretary' means the Under S
ecretary of Commerce for Oceans and Atmosphere.
`(17) WATER-DEPENDENT USE- The term `water-dependent use' means a u
se, activity, or project that requires direct physical siting on, or proximity o
r access to, an adjacent body of coastal water. The term includes industrial or
commercial activities related to port and harbor operation and commercial fishin
g, and activities related to water recreation. A use, activity, or project shall
not be considered to be a water-dependent use solely because of economic advant
ages that may be gained from a coastal waterfront location.
`(18) WATER USE- The term `water use' means a use, activity, or pro
ject conducted in or on waters within the coastal zone.
`SEC. 305. MANAGEMENT PROGRAM DEVELOPMENT GRANTS.
`(a) DEVELOPMENT GRANTS- In fiscal years 1991, 1992, and 1993, the Unde
r Secretary may make a grant annually to any coastal State without an approved p
rogram from sums available to the Under Secretary under section 309, if the coas
tal State demonstrates to the satisfaction of the Under Secretary that the grant
will be used to develop a management program consistent with the requirements s
et forth in section 306. The amount of any such grant shall not exceed $200,000
in any fiscal year, and shall require State matching funds according to a 4-to-o
ne ratio of Federal-to-State contributions. After an initial grant is made to a
coastal State pursuant to this subsection, no subsequent grant shall be made to
that coastal State pursuant to this subsection unless the Under Secretary finds
that the coastal State is satisfactorily developing its management program. No c
oastal State is eligible to receive more than 2 grants pursuant to this subsecti
on.
`(b) SUBMITTAL OF PROGRAM- Any coastal State which has completed the de
velopment of its management program shall submit such program to the Under Secre
tary for review and approval pursuant to section 306.
`SEC. 306. ADMINISTRATIVE GRANTS.
`(a) GENERAL- The Under Secretary may make grants to any coastal State
for the purpose of administering that State's management program, if the State m
atches any such grant according to the following ratios of Federal-to-State cont
ributions for the applicable fiscal year:
`(1) EXISTING PROGRAMS- For those States for which programs were ap
proved prior to enactment of the Coastal Zone Act Reauthorization Amendments of
1990, one to one for any fiscal year.
`(2) DEVELOPING PROGRAMS- For States for which programs are approve
d after the date of the enactment of the Coastal Zone Act Reauthorization Amendm
ents of 1990, 4 to one for the first fiscal year, 2.3 to one for the second fisc
al year, 1.5 to one for the third fiscal year, and one to one for each fiscal ye
ar thereafter.
`(b) GRANT CONDITIONS- The Under Secretary may make a grant to a coasta
l State under subsection (a) only if the Under Secretary finds that the manageme
nt program of the coastal State meets all applicable requirements of this title
and has been approved in accordance with subsection (d).
`(c) GRANT ALLOCATION- Grants under this section shall be allocated to
coastal States with approved programs based on rules and regulations promulgated
by the Under Secretary which shall take into account the extent and nature of t
he shoreline and area covered by the program, population of the area, and other
relevant factors. The Under Secretary shall establish, after consulting with the
coastal States, maximum and minimum grants for any fiscal year to promote equit
y between coastal States and effective coastal management.
`(d) PROGRAM APPROVAL REQUIREMENTS- Before approving a management progr
am submitted by a coastal State, the Under Secretary shall find the following:
`(1) IN GENERAL- The State has developed and adopted a management p
rogram for its coastal zone in accordance with rules and regulations promulgated
by the Under Secretary, after notice, and with the opportunity of full particip
ation by relevant Federal agencies, State agencies, local governments, regional
organizations, port authorities, and other interested parties and individuals, p
ublic and private, which is adequate to carry out the purposes of this title and
is consistent with the policy declared in section 303.
`(2) REQUIRED PROGRAM ELEMENTS- The management program includes eac
h of the following:
`(A) An identification of the boundaries of the coastal zone su
bject to the management program.
`(B) A definition of permissible land uses and water uses withi
n the coastal zone which have a direct and significant impact on the coastal wat
ers.
`(C) An inventory and designation of areas of particular concer
n within the coastal zone.
`(D) An identification of the means by which the State proposes
to exert control over the land uses and water uses referred to in subparagraph
(B), including a list of relevant State constitutional provisions, laws, regulat
ions, and judicial decisions.
`(E) Broad guidelines on priorities of uses in particular areas
, including specifically those uses of lowest priority.
`(F) A description of the organizational structure proposed to
implement the management program, including the responsibilities and interrelati
onships of local, areawide, State, regional, and interstate agencies in the mana
gement process.
`(G) A definition of the term `beach' and a planning process fo
r the protection of, and access to, public beaches and other public coastal area
s of environmental, recreational, historical, esthetic, ecological, or cultural
value.
`(H) A planning process for energy facilities likely to be loca
ted in, or which may significantly affect, the coastal zone, including a process
for anticipating and managing the impacts from such facilities.
`(I) A planning process for assessing the effects of, and study
ing and evaluating ways to control, or lessen the impact of, shoreline erosion,
and to restore areas adversely affected by such erosion.
`(3) REQUIRED PROCEDURES- The State has--
`(A) coordinated its program with local, areawide, and intersta
te plans applicable to areas within the coastal zone--
`(i) existing on January 1 of the year in which the State's
management program is submitted to the Under Secretary; and
`(ii) which have been developed by a local government, an a
reawide agency, a regional agency, or an interstate agency; and
`(B) established an effective mechanism for continuing consulta
tion and coordination among the management agency designated pursuant to paragra
ph (6), local governments, interstate agencies, regional agencies, and areawide
agencies within the coastal zone to assure the full participation of those local
governments and agencies in carrying out the purposes of this title; except tha
t the Under Secretary shall not find any mechanism to be effective for purposes
of this subparagraph unless it requires that--
`(i) the management agency, before implementing any managem
ent program decision which would conflict with any local zoning ordinance, decis
ion, or other action, shall send a notice of the management program decision to
any local government whose zoning authority is affected;
`(ii) within the 30-day period commencing on the date of re
ceipt of the notice, the local government may submit to the management agency wr
itten comments on the management program decision, and any recommendation for al
ternatives; and
`(iii) the management agency, if any comments are submitted
to it within the 30-day period by any local government--
`(I) shall consider the comments;
`(II) may, in its discretion, hold a public hearing on
the comments; and
`(III) may not take any action within the 30-day period
to implement the management program decision.
`(4) PUBLIC HEARINGS- The State has held public hearings in the dev
elopment of the management program.
`(5) GUBERNATORIAL APPROVAL- The management program and any amendme
nt, modification, or other change thereto have been reviewed and approved by the
Governor of the State.
`(6) DESIGNATION OF LEAD AGENCY- The Governor of the State has desi
gnated a single State agency to receive and administer grants for implementing t
he management program.
`(7) ORGANIZATION- The State is organized to implement the manageme
nt program.
`(8) NATIONAL INTEREST- The management program provides for adequat
e consideration of the national interest involved in planning for, and managing
the coastal zone, including the siting of facilities such as energy facilities w
hich are of greater than local significance. In the case of energy facilities, t
he Under Secretary shall find that the State has given consideration to any appl
icable national or interstate energy plan or program.
`(9) AREA DESIGNATIONS- The management program includes procedures
whereby specific areas may be designated for the purpose of preserving or restor
ing them for their conservation, recreational, ecological, historical, or esthet
ic values.
`(10) AUTHORITY TO IMPLEMENT PROGRAM- The State, acting through its
chosen agency or agencies (including local governments, areawide agencies, regi
onal agencies, or interstate agencies) has authority for the management of the c
oastal zone in accordance with the management program. Such authority shall incl
ude power--
`(A) to administer land use and water use regulations to contro
l development to ensure compliance with the management program, and to resolve c
onflicts among competing uses; and
`(B) to acquire fee simple and less than fee simple interests i
n land, waters, and other property through condemnation or other means when nece
ssary to achieve conformance with the management program.
`(11) CONTROL OF USES- The management program provides for any one
or a combination of the following general techniques for control of land uses an
d water uses within the coastal zone:
`(A) State establishment of criteria and standards for local im
plementation, subject to administrative review and enforcement.
`(B) Direct State land and water use planning and regulation.
`(C) State administrative review for consistency with the manag
ement program of all development plans, projects, or land and water use regulati
ons, including exceptions and variances thereto, proposed by any State or local
authority or private developer, with power to approve or disapprove after public
notice and an opportunity for hearings.
`(12) USES OF REGIONAL BENEFIT- The management program contains a m
ethod of assuring that local land use and water use regulations within the coast
al zone do not unreasonably restrict or exclude land uses and water uses of regi
onal benefit.
`(13) PROTECTION OF NATIONALLY SIGNIFICANT RESOURCES- The managemen
t program provides for--
`(A) the inventory and designation of areas that contain one or
more coastal resources of national significance; and
`(B) specific and enforceable standards to protect such resourc
es.
`(14) PUBLIC PARTICIPATION- The management program provides for pub
lic participation in permitting processes, consistency determinations, and other
similar decisions.
`(15) INTRASTATE COMPLIANCE- The management program provides a mech
anism to ensure that all State agencies will adhere to the program.
`(e) PROGRAM AMENDMENTS AND MODIFICATIONS-
`(1) IN GENERAL- A coastal State may amend, modify, or otherwise ch
ange its approved management program as provided in this subsection.
`(2) NOTIFICATION REQUIRED- A coastal State shall promptly notify t
he Under Secretary of any proposed amendment, modification, or change in its man
agement program and submit it to the Under Secretary for his or her approval. Th
e Under Secretary may suspend all or part of any grant made to the State under t
his section pending submission of the proposed amendment, modification, or chang
e by the State.
`(3) REVIEW AND APPROVAL BY UNDER SECRETARY- (A) Within 30 days aft
er the date the Under Secretary receives any amendment, modification, or other c
hange proposed by a coastal State to its management program, the Under Secretary
shall approve or disapprove the proposal, unless the Under Secretary finds it i
s necessary to extend the period for reviewing the proposal. Upon such a finding
, the Under Secretary may extend the period for review to not later than 120 day
s after the date the Under Secretary received the proposal. The Under Secretary
may further extend the period for review only as necessary to meet the requireme
nts of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
`(B) If the Under Secretary does not approve or disapprove an amend
ment, modification, or other change proposed by a coastal State to its managemen
t program within 120 days after the date the proposal is received by the Under S
ecretary, the proposal is deemed to be approved by the Under Secretary unless th
e Under Secretary has extended the period for review for purposes of meeting the
requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 e
t seq.).
`(4) APPROVAL REQUIRED FOR IMPLEMENTATION- (A) Except as provided i
n subparagraph (B), a coastal State may not implement any amendment, modificatio
n, or other change as part of its approved management program unless the amendme
nt, modification, or other change is approved by the Under Secretary under this
subsection.
`(B) The Under Secretary, after determining on a preliminary basis,
that an amendment, modification, or other change which has been submitted for a
pproval under this subsection is likely to meet the program approval standards i
n this section, may permit the State to expend funds awarded under this section
to begin implementing the proposed amendment, modification, or change. This prel
iminary approval shall not extend for more than 6 months and may not be renewed.
A proposed amendment, modification, or change which is subject to preliminary a
pproval under this paragraph shall not be considered an enforceable policy for p
urposes of section 307(m).
`SEC. 306A. RESOURCE MANAGEMENT IMPROVEMENT GRANTS.
`(a) DEFINITIONS- For purposes of this section--
`(1) the term `eligible coastal State' means a coastal State that f
or any fiscal year for which a grant is applied for under this section--
`(A) has a management program approved under section 306; and
`(B) in the judgment of the Under Secretary, is making continua
l and satisfactory progress in improving its approved coastal zone management pr
ogram in compliance with section 310; and
`(2) the term `urban waterfront and port' means any developed area
that is densely populated and is being used for, or has been used for, urban res
idential, recreational, commercial, shipping, or industrial purpose.
`(b) GRANTS AND RESOURCE IMPROVEMENTS- The Under Secretary may make gra
nts to any eligible coastal State to assist that State in meeting one or more of
the following objectives:
`(1) PRESERVATION OR RESTORATION- Preserving or restoring specific
areas of the coastal zone--
`(A) that are designated under the management program procedure
s required by section 306(d)(9) because of their conservation, recreational, eco
logical, historic, or esthetic value;
`(B) under a comprehensive restoration program adopted under se
ction 310(a)(1);
`(C) that contain one or more coastal resources of national sig
nificance; or
`(D) for the purpose of restoring and enhancing shellfish produ
ction by the purchase and distribution of clutch material on publicly owned reef
s and bottom lands.
`(2) REDEVELOPMENT- Redeveloping deteriorating and underutilized ur
ban waterfronts and ports that are designated under section 306(d)(2)(C) in the
State's management program as areas of particular concern.
`(3) PUBLIC ACCESS- Providing access to public beaches and other pu
blic coastal areas and to coastal waters in accordance with the planning process
required under section 306(d)(2)(G).
`(1) TERMS AND CONDITIONS- Each grant under this section shall be s
ubject to any terms and conditions as may be appropriate to ensure that the gran
t is used for purposes consistent with this section.
`(2) ELIGIBLE USES- Grants under this section may be used for--
`(A) acquiring fee simple and other interests in land;
`(B) low-cost construction projects determined by the Under Sec
retary to be consistent with the purposes of this section, including constructio
n of paths, walkways, fences, parks, and oyster beds and the rehabilitation of h
istoric buildings and structures, except that not more than 50 percent of any gr
ant under this section may be used for such construction projects;
`(C) in the case of grants for objectives described in subsecti
on (b)(2)--
`(i) the rehabilitation or acquisition of piers to provide
increased public use, including compatible commercial activity;
`(ii) the establishment of shoreline stabilization measures
, including the installation or rehabilitation of bulkheads for the purpose of p
ublic safety or increasing public access and use;
`(iii) the removal or replacement of pilings where such act
ion will provide increased recreational use of urban waterfront areas, except th
at activities provided for under this paragraph shall not be treated as construc
tion projects subject to the limitations in subparagraph (B);
`(D) engineering designs, specifications, and other appropriate
reports; and
`(E) educational, interpretive, and management costs and such o
ther related costs as the Under Secretary determines to be consistent with the p
urposes of this section.
`(d) MATCHING REQUIREMENTS-
`(1) IN GENERAL- The Under Secretary shall require a coastal State
to match a grant under this section in a ratio of at least one to one of Federal
to State contribution.
`(2) USE FOR OTHER MATCHING REQUIREMENTS- A coastal State may use a
grant under this section to pay the State's share of costs required under any o
ther Federal program that is consistent with the purposes of this section.
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`SEC. 306B. MANAGING LAND USES THAT AFFECT COASTAL WATERS.
`(1) PROGRAM DEVELOPMENT- Not later than 3 years after the effectiv
e date of this section, the management agency designated pursuant to section 306
(d)(6) by each coastal State for which a management program has been approved pu
rsuant to section 306 (hereinafter in this section referred to as the `coastal m
anagement agency'), shall prepare and submit to the Under Secretary a Coastal Wa
ter Quality Protection Program (hereinafter in this section referred to as the `
program') for approval pursuant to this section. The purpose of the program shal
l be to develop and implement coastal land use management measures for nonpoint
source pollution, working in close conjunction with other State and local author
ities. For purposes of this section, the term `land use' shall include uses of a
djacent water areas as well.
`(2) PROGRAM COORDINATION- (A) In developing and carrying out the p
rogram, the coastal management agency shall coordinate closely with State and lo
cal water quality plans and programs developed pursuant to sections 208, 303, 31
9, and 320 of the Federal Water Pollution Control Act (33 U.S.C. 1288, 1313, 132
9, and 1330).
`(B) The program shall serve as an update and expansion of the Stat
e nonpoint source management program developed under section 319 of the Federal
Water Pollution Control Act, as the program under that section relates to land a
nd water uses affecting the coastal zone. The program shall be prepared in close
consultation with the State authority responsible for implementation of the pro
gram prepared under section 319 of that Act, in order to assure full coordinatio
n in each participating State.
`(b) PROGRAM CONTENTS- The Under Secretary in consultation with the Adm
inistrator of the Environmental Protection Agency, shall approve a program under
this section if it provides for the following:
`(1) IDENTIFYING LAND USES- The identification of, and a continuing
process for identifying, land uses which, individually or cumulatively, may cau
se or contribute significantly to a degradation of--
`(A) those coastal waters where there is a failure to attain or
maintain applicable water quality standards or protect designated uses, as dete
rmined by the State pursuant to its water quality planning processes;
<
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`(B) those coastal waters that are threatened by reasonably for
eseeable increases in pollution loadings from new or expanding sources; or
<
/ul>
`(C) outstanding resource waters designated pursuant to paragra
ph (4).
`(2) IDENTIFYING CRITICAL COASTAL AREAS- The identification of, and
a continuing process for identifying, critical coastal areas within which any n
ew land uses or substantial expansion of existing land uses will be subject to l
and use management measures that are determined necessary by the coastal managem
ent agency, in cooperation with the State water quality authorities and other St
ate or local authorities, as appropriate, to protect and restore coastal water q
uality and designated uses.
`(3) COASTAL LAND USE MANAGEMENT MEASURES- (A) The implementation a
nd continuing revision from time to time of land use management measures applica
ble to the land uses and areas identified pursuant to paragraphs (1) and (2) tha
t the coastal management authority, working in conjunction with the State water
pollution control agency and other State and local authorities, determines are n
ecessary to achieve applicable water quality standards and protect designated us
es.
`(B) Coastal land use management measures under this paragraph may
include, among other measures, the use of--
`(iii) density restrictions;
`(iv) techniques for identifying and protecting critical coasta
l areas and habitats;
`(v) soil erosion and sedimentation control; and
`(vi) siting and design criteria for water uses, including mari
nas.
`(4) OUTSTANDING RESOURCE WATERS- The continuing identification and
designation (after periodic nominations, notice, and public comments) of coasta
l waters which, because of their special ecological, recreational, or esthetic c
haracteristics, are determined by the State to constitute outstanding resource w
aters. Such designations may include, but not be limited to, waters identified b
y the State water pollution control agency as being of special biological signif
icance pursuant to its water quality planning processes. Outstanding resource wa
ters may include--
`(A) areas adjacent to national or State parks or wildlife refu
ges;
`(B) national estuarine research reserves and national marine s
anctuaries;
`(C) waters adjacent to units of the Coastal Barrier Resources
System established by the Coastal Barrier Resources Act (16 U.S.C. 3501 et seq.)
; or
`(D) shellfish harvesting areas or fish spawning areas of parti
cular State or local importance.
`(5) TECHNICAL ASSISTANCE- The provision of technical and financial
assistance to local governments and the public for implementing the measures re
ferred to in paragraph (3), including assistance in developing ordinances and re
gulations, technical guidance, and modeling to predict and assess the effectiven
ess of such measures, training, financial incentives, demonstration projects, an
d other innovations to protect coastal water quality and designated uses.
`(6) PUBLIC PARTICIPATION- Opportunities for public participation i
n all aspects of the program, including the use of public notices and opportunit
ies for comment, nomination procedures, public hearings, technical and financial
assistance, public education, and other means.
`(7) ADMINISTRATIVE COORDINATION- The establishment of mechanisms t
o improve coordination among State agencies and between State and local official
s responsible for land use programs and permitting, water quality permitting and
enforcement, habitat protection, and public health and safety, through the use
of joint project review, interagency certifications, memoranda of agreement, and
other mechanisms.
`(8) STATE COASTAL ZONE BOUNDARY MODIFICATION- Modification of the
boundaries of the State coastal zone as the coastal management agency determines
is necessary to manage the land uses identified pursuant to paragraph (1) and t
o implement, as may be required, the recommendations made pursuant to subsection
(e). If the coastal management agency does not have the authority to modify suc
h boundaries, the program shall include recommendations for such modifications t
o the appropriate State authority.
`(c) PROGRAM SUBMISSION AND APPROVAL-
`(1) PROCEDURES- The submission and approval of a proposed program
shall be governed by the procedures established by section 306(e).
`(2) ELIGIBILITY FOR AND WITHDRAWING ASSISTANCE- If the Under Secre
tary finds that a coastal State has failed to submit an approvable program as re
quired by this section, the State shall not be eligible for any funds under this
section or section 603 of the Coastal Defense Initiative of 1990, and the Under
Secretary shall withdraw a portion of grants otherwise available to the State u
nder section 306 of this Act as follows:
`(A) 10 percent after 3 years after the date of the enactment o
f this section.
`(B) 15 percent after 4 years after the date of the enactment o
f this section.
`(C) 20 percent after 5 years after the date of the enactment o
f this section.
`(D) 30 percent after 6 years after the date of the enactment o
f this section and thereafter.
The Under Secretary shall make amounts withdrawn under this paragraph
available to coastal States having programs approved under this section.
`(d) TECHNICAL ASSISTANCE- The Under Secretary and the Administrator of
the Environmental Protection Agency shall provide technical assistance to coast
al States and local governments in developing and implementing programs under th
is section. Such assistance shall include--
`(1) methods for assessing water quality impacts associated with co
astal land uses;
`(2) methods for assessing the cumulative water quality effects of
coastal development;
`(3) maintaining and from time to time revising an inventory of mod
el ordinances, and providing other assistance to coastal States and local govern
ments in identifying, developing, and implementing pollution control measures; a
nd
`(4) methods to predict and assess the effects of coastal land use
management measures on coastal water quality and designated uses.
`(1) REVIEW- The Under Secretary, in consultation with the Administ
rator of the Environmental Protection Agency, shall, within 18 months after the
date of enactment of this title, review the inland coastal zone boundary of each
coastal State program which has been approved or is proposed for approval under
section 306 and evaluate whether the State's coastal zone boundary extends inla
nd to the extent necessary to control the land and water uses that have a signif
icant impact on coastal waters of the State.
`(2) RECOMMENDATION- If the Under Secretary finds that modification
s to the inland boundaries of a State's coastal zone are necessary for that Stat
e to more effectively manage land and water uses to protect coastal waters, the
Under Secretary shall recommend appropriate modifications in writing to the affe
cted State.
`(f) FINANCIAL ASSISTANCE- With sums appropriated pursuant to section 3
18(a)(2), the Under Secretary shall provide grants to each coastal State to assi
st in fulfilling the requirements of this section if the coastal State matches a
ny such grant according to a 4 to 1 ratio of Federal to State contribution. Fund
s available for implementing this section shall be allocated according to the re
gulations issued under section 306(c), except that the Under Secretary may use n
ot more than 30 percent of any such funds to provide grants to assist those Stat
es which the Under Secretary finds are making exemplary progress in complying wi
th the requirements of this section.
`(g) LONG ISLAND SOUND CONSERVANCY DEMONSTRATION- Notwithstanding any o
ther provision of law and within one year after the effective date of this subse
ction, the Under Secretary shall establish an office, to be known as the Long Is
land Sound Conservancy, in the immediate vicinity of Long Island Sound. The offi
ce shall provide assistance to the States of Connecticut and New York in develop
ing and implementing the plan described in subsection (a) and in demonstrating t
he most effective means of coordinating the implementation of coastal zone manag
ement and water quality programs. The Conservancy shall be eligible for grants u
nder subsection (f) without regard to the matching requirement of that subsectio
n.
`SEC. 307. COORDINATION AND COOPERATION.
`(a) GENERAL- In carrying out the functions and responsibilities of thi
s title, the Under Secretary shall consult with, cooperate with, and, to the max
imum extent practicable, coordinate these activities with other interested Feder
al agencies.
`(b) FEDERAL AGENCY CONSULTATION- The Under Secretary shall not approve
the management program submitted by a State pursuant to section 306, or any ame
ndment, modification, or other change to the management program, unless the view
s of Federal agencies principally affected by such program or amendments have be
en adequately considered.
`(c) FEDERAL AGENCY ACTIVITIES-
`(1) IN GENERAL- Each Federal agency activity, in or outside of the
coastal zone, affecting any natural resources, land uses, or water uses in the
coastal zone, shall be carried out in a manner which is, to the maximum extent p
racticable, consistent with approved State management programs.
`(2) PRESIDENTIAL EXEMPTION- After any final judgment, decree, or o
rder of any Federal court that is appealable under section 1291 or 1292 of title
28, United States Code, or under any other applicable provision of Federal law,
that a specific Federal agency activity is not in compliance with subsection (c
)(1), and certification by the Under Secretary that mediation under subsection (
h) is not likely to result in such compliance, the President may, upon written r
equest from the Under Secretary, exempt from compliance those elements of the Fe
deral agency activity that are found by the Federal court to be inconsistent wit
h an approved State program, if the President determines that the activity is in
the paramount interest of the United States. No such exemption shall be granted
due to a lack of appropriations unless the President has specifically requested
such appropriations as part of the budgetary process, and the Congress has fail
ed to make available the requested appropriations.
`(3) CONSISTENCY DETERMINATION REQUIRED- Each Federal agency carryi
ng out an activity subject to paragraph (1) shall provide a consistency determin
ation to the relevant State agency designated under section 306(d)(6) at the ear
liest practicable time, but in no case later than 90 days before final approval
of the Federal activity unless both the Federal agency and the State agency agre
e to a different schedule.
`(d) FEDERALLY LICENSED OR PERMITTED ACTIVITIES-
`(1) IN GENERAL- Any applicant for a required Federal license or pe
rmit to conduct an activity in or outside the coastal zone, affecting any natura
l resources, land uses, or water uses in the coastal zone of a State, shall prov
ide in the application to the licensing or permitting agency a certification tha
t the proposed activity complies with the State's approved program and that the
activity will be conducted in a manner consistent with the program. At the same
time, the applicant shall furnish to the State or its designated agency a copy o
f the certification, with all necessary information and data, and with any fee w
hich may be required pursuant to subsection (i). Each coastal State shall establ
ish procedures for public notice in the case of all certifications and, to the e
xtent it deems appropriate, procedures for public hearings. At the earliest prac
ticable time, the State or its designated agency shall notify the Federal agency
concerned that the State concurs with or objects to the applicant's certificati
on. If the State or its designated agency fails to furnish the required notifica
tion within 6 months after receipt of its copy of the applicant's certification,
the State's concurrence with the certification shall be conclusively presumed.
No license or permit shall be granted by the Federal agency until the State or i
ts designated agency has concurred with the applicant's certification or until,
by the State's failure to act, the concurrence is conclusively presumed, unless
the Under Secretary, on his or her own initiative or upon appeal by the applican
t, finds, after providing a reasonable opportunity for detailed comments from th
e Federal agency involved and from the State, that the activity is consistent wi
th (A) the requirements of this title, and (B) the findings and policies of this
title or is otherwise necessary in the interest of national security.
`(2) OUTER CONTINENTAL SHELF EXPLORATION, DEVELOPMENT, OR PRODUCTIO
N- Any person who submits to the Secretary of the Interior any plan for the expl
oration or development of, or production from, any area which has been leased un
der the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.) and regulatio
ns under such Act shall, with respect to any exploration, development, or produc
tion described in such plan and affecting any natural resources, land uses, or w
ater uses in the coastal zone of a State, attach to such plan a certification th
at each activity which is described in detail in such plan complies with such St
ate's approved management program and will be carried out in a manner consistent
with such program. No Federal official or agency shall grant such person any li
cense or permit for any activity described in detail in such plan until such Sta
te or its designated agency receives a copy of such certification and plan, toge
ther with any other necessary data and information, and with any fee which may b
e required pursuant to subsection (i), and until--
`(A) the State or its designated agency, in accordance with the
procedures required to be established by the State pursuant to paragraph (1), c
oncurs with the certification and notifies the Under Secretary and the Secretary
of the Interior of the concurrence;
`(B) concurrence by the State with such certification is conclu
sively presumed as provided for in paragraph (1). If the State fails to concur w
ith or objects to the certification within 3 months after receipt of its copy of
the certification and supporting information, the State shall provide the Under
Secretary, the appropriate Federal agency, and the person with a written statem
ent describing the status of review and the basis for further delay in issuing a
final decision, and if the statement is not so provided, concurrence by such St
ate with the certification shall be conclusively presumed; or
`(C) the Under Secretary finds, pursuant to paragraph (1), that
each activity which is described in detail in such plan is consistent with (i)
the requirements of this title, and (ii) the findings and policies of this title
or is otherwise necessary in the interest of national security.
If a State concurs or is conclusively presumed to concur, or if the U
nder Secretary makes such a finding, the provisions of paragraph (1) do not appl
y to the person, the State, and any Federal license or permit which is required
to conduct any activity affecting natural resources, land uses, or water uses in
the coastal zone of the State which is described in detail in the plan to which
the concurrence or finding applies. If the State objects to the certification a
nd if the Under Secretary fails to make a finding under subparagraph (C) or if t
he person fails substantially to comply with the plan as submitted, the person s
hall submit an amendment to the plan, or a new plan, to the Secretary of the Int
erior. With respect to any amendment or new plan submitted to the Secretary of t
he Interior pursuant to the preceding sentence, the applicable time period for p
urposes of concurrence by conclusive presumption under paragraph (1) is 3 months
.
`(e) FEDERAL ASSISTANCE PROGRAMS- State and local governments submittin
g applications for Federal assistance under other Federal programs, for activiti
es in or outside the coastal zone affecting any natural resources, land uses, or
water uses in the coastal zone, shall include the views of the agency designate
d pursuant to section 306(d)(6) as to the relationship of the activities to the
approved management program. The applications shall be submitted and coordinated
in accordance with the provisions of title IV of the Intergovernmental Coordina
tion Act of 1968 (82 Stat. 1098). Federal agencies shall not provide assistance
for any activity that is inconsistent with a coastal State's management program,
unless the Under Secretary, on his or her own initiative or upon appeal by the
applicant, finds, after providing a reasonable opportunity for detailed comments
from the Federal agency involved and from the State, that the activity is consi
stent with the findings and policies of this title or is (1) the requirements of
this title, and (2) otherwise necessary in the interest of national security.
`(f) RELATIONSHIP TO OTHER FEDERAL LAWS- Nothing in this title shall be
construed--
`(1) to diminish either Federal or State jurisdiction, responsibili
ty, or rights in the field of planning, development, or control of water resourc
es, submerged lands, or navigable waters; nor to displace, supersede, limit, or
modify any interstate compact or the jurisdiction or responsibility of any legal
ly established joint or common agency of 2 or more States or of 2 or more States
and the Federal Government; nor to limit the authority of the Congress to autho
rize and fund projects;
`(2) as superseding, modifying, or repealing any laws applicable to
the various Federal agencies; nor to affect the jurisdiction, powers, or prerog
atives of the International Joint Commission, United States and Canada; the Perm
anent Engineering Board; the United States operating entity or entities establis
hed pursuant to the Columbia River Basin Treaty, signed at Washington, January 1
7, 1961; or the International Boundary and Water Commission, United States and M
exico.
`(g) INCORPORATION OF AIR AND WATER STANDARDS- Notwithstanding any othe
r provision of this title, nothing in this title shall in any way affect any req
uirement (1) established by the Federal Water Pollution Control Act (33 U.S.C. 1
251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.), or (2) established b
y the Federal Government or by any State or local government pursuant to such Ac
ts. Such requirements shall be incorporated in any program developed pursuant to
this title and shall be the water pollution control and air pollution control r
equirements applicable to such program.
`(h) MEDIATION- In case of serious disagreement between any Federal age
ncy and a coastal State or between 2 or more States--
`(1) in the development or the initial implementation of a manageme
nt program under section 305; or
`(2) in the administration of a management program approved under s
ection 306;
the Under Secretary shall seek to mediate the disagreement.
`(i) STATE FEE- Each coastal State may establish, collect, and expend,
without regard to any other requirement of this title, a fee to recover the reas
onable costs of administering subsection (d). Such fee may recover the full cost
s of administration, including the reasonable costs of required research, monito
ring, and enforcement.
`(j) FEDERAL FEE- With respect to appeals under subsection (d) which ar
e submitted after the date of the enactment of the Coastal Zone Act Reauthorizat
ion Amendments of 1990, the Under Secretary shall collect an application fee of
not less than $200 for minor appeals and not less than $500 for major appeals. T
he Under Secretary shall collect such other fees as are necessary to recover the
full costs of administering and processing such appeals under subsection (d).
`(k) WAIVING RIGHT TO APPEAL- An applicant may waive the right to an ap
peal pursuant to subsection (d)(1)(B), (d)(2)(C)(i) or (e)(2) if written notific
ation of the waiver is received by the coastal State and the Under Secretary wit
hin 60 days after the date on which the coastal State objected to the applicant'
s certification under that subsection.
`(l) RESTRICTION OF STATE AUTHORITY- A coastal State may not exercise t
he requirements of subsection (c), (d), or (e)--
`(1) unless the coastal State's management program has been approve
d pursuant to section 306; or
`(2) if approval of the coastal State's management program has been
withdrawn pursuant to section 312(d).
`(m) CONSISTENCY WITH ENFORCEABLE POLICIES REQUIRED- In complying with
the provisions of subsections (c), (d), and (e), activities of Federal agencies
and applicants shall be carried out consistent with the enforceable policies of
the State management program. Federal agencies shall give adequate consideration
to program provisions which are in the nature of recommendations.
`SEC. 308. COASTAL ENERGY IMPACT PROGRAM.
`(a) IN GENERAL- Not later than January 1, 1993, the Under Secretary sh
all recommend to the Congress a coastal energy impact program. These recommendat
ions shall include provision of financial and technical assistance to meet the n
eeds of coastal States and local governments resulting from energy facilities an
d related activities affecting natural resources, land uses, or water uses in th
e coastal zone. The program shall identify the major energy activities which are
affecting natural resources, land uses, or water uses in the coastal zone and t
he major obstacles, if any, to effective management of such activities under thi
s title.
`(b) OUTER CONTINENTAL SHELF STATE PARTICIPATION-
`(1) IN GENERAL- Beginning in fiscal year 1991, the Under Secretary
shall implement a program to assist coastal States in fulfilling their responsi
bilities under the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.).
`(2) PARTICIPATION GRANTS- The Under Secretary shall make grants un
der this paragraph to any coastal State which the Under Secretary finds is likel
y to be affected by Outer Continental Shelf energy activities, if the State matc
hes the grant according to a 4 to 1 ratio of Federal to State contribution. The
grants shall be used to assist the State in carrying out its responsibilities un
der the Outer Continental Shelf Lands Act.
`(c) LOAN REPAYMENT OBLIGATIONS UNAFFECTED- The obligations of any coas
tal State or unit of general purpose local government to repay loans made pursua
nt to section 308(d)(1) of the Coastal Zone Management Act of 1972 (16 U.S.C. 14
56a(d)(1)), as in effect before the date of the enactment of the Coastal Zone Ac
t Reauthorization Amendments of 1990, and any repayment schedule established pur
suant to that Act, are not altered by any provision of this title. Such loans sh
all be repaid under authority of this subsection and the Under Secretary may iss
ue regulations governing such repayment. If the Under Secretary finds that any c
oastal State or unit of local government is unable to meet its obligations pursu
ant to this subsection because the actual increases in employment and related po
pulation resulting from coastal energy activity and the facilities associated wi
th such activity do not provide adequate revenues to enable such State or unit t
o meet such obligations in accordance with the appropriate repayment schedule, t
he Under Secretary shall, after review of the information submitted by such Stat
e or unit take any of the following actions:
`(1) Modify the terms and conditions of such loan.
`(3) Recommend to the Congress that legislation be enacted to forgi
ve the loan.
`(d) OFFSETTING COLLECTIONS- Loan repayments made pursuant to subsectio
n (c) shall be retained by the Under Secretary as offsetting collections, and sh
all be deposited into the Coastal Zone Management Fund established under section
309.
`SEC. 309. COASTAL ZONE MANAGEMENT FUND.
`(a) ESTABLISHMENT- The Under Secretary shall establish and maintain a
fund, to be known as the `Coastal Zone Management Fund' (hereinafter in this sec
tion referred to as the `Fund'), which shall consist of amounts retained and dep
osited into the Fund under section 308(d).
`(b) USE- Subject to amounts provided in Appropriation Acts, amounts in
the Fund shall be available to the Under Secretary for use for the following:
`(1) ADMINISTRATION- Expenses incident to the administration of thi
s title, in an amount not to exceed--
`(A) $5,000,000 for fiscal year 1991;
`(B) $5,225,000 for fiscal year 1992;
`(C) $5,460,125 for fiscal year 1993;
`(D) $5,705,830 for fiscal year 1994; and
`(E) $5,962,593 for fiscal year 1995.
`(2) OTHER USES- After use under paragraph (1)--
`(A) projects to address management issues which are regional i
n scope, including interstate projects;
`(B) demonstration projects which have high potential for impro
ving coastal zone management, especially at the local level;
`(C) emergency grants to State coastal zone management agencies
to address unforeseen or disaster-related circumstances;
`(D) appropriate awards recognizing excellence in coastal zone
management as provided in section 314;
`(E) program development grants as authorized by section 305;
`(F) State participation grants under section 308(b); and
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`(G) to provide financial support to coastal States for use for
investigating and applying the public trust doctrine to implement State managem
ent programs approved under section 306.
`(c) REPORT- On December 1 of each year, the Under Secretary shall tran
smit to the Congress an annual report on the Fund, including the balance of the
Fund and an itemization of all deposits into and disbursements from the Fund in
the preceding fiscal year.
`SEC. 310. NATIONAL INTEREST IMPROVEMENTS.
`(a) IN GENERAL- Beginning in fiscal year 1991, the Under Secretary sha
ll implement an ongoing program to encourage each coastal State to make continua
l improvements in its management program in specified national interest areas. T
his program shall encourage and monitor improvements in one or more of the follo
wing special national interest areas:
`(1) COASTAL WETLANDS MANAGEMENT AND PROTECTION- Coastal wetlands m
anagement and protection, consistent with the interim goal to achieve no overall
net loss of the Nation's remaining wetlands base, including adoption of--
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`(A) enforceable policies to manage and protect coastal wetland
s; and
`(B) a comprehensive restoration program for coastal wetlands f
or the purpose of attaining increases in functioning wetlands communities.
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`(2) NATURAL HAZARDS MANAGEMENT- Management of development and rede
velopment in hazardous areas, including enforceable policies and management stra
tegies to--
`(A) reduce the threat to life and the destruction of property
by discouraging development and redevelopment in high hazard areas;
`(B) properly manage development and redevelopment in other haz
ard areas including such mechanisms as setbacks, requirements that buildings be
suitable for relocation and other special building code standards, and acquisiti
on and relocation programs; and
`(C) anticipate and manage the effects of potential sea level o
r Great Lakes level rise and land subsidence by--
`(i) requiring consideration of sea level or Great Lakes le
vel rise and land subsidence in the siting of new public infrastructure investme
nts and new large-scale developments with long life expectancies, such as sewage
treatment plants, industrial plants, and hazardous waste facilities;
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`(ii) establishing and protecting buffer zones for wetlands
which are likely to migrate landward in response to sea level or Great Lakes le
vel rise;
`(iii) ensuring that protection of natural resources is a f
eature of both structural and nonstructural responses to sea level or Great Lake
s level rise or land subsidence; and
`(iv) requiring building setbacks and standards that minimi
ze the adverse effects of sea level or Great Lakes level rise or land subsidence
.
`(3) PUBLIC ACCESS- Providing public access to coastal areas, inclu
ding development of a program to increase public access to coastal areas of recr
eational, historical, esthetic, ecological, or cultural value, based on assessme
nts of long-term public access needs. This program shall include enforceable pol
icies necessary to meet public needs for access, including appropriate regulator
y means and programs to obtain access sites through donation, dedication, and ac
quisition, and shall include a process for public nomination of areas to be acqu
ired for public access purposes.
`(4) CUMULATIVE AND SECONDARY IMPACTS- Development and adoption of
procedures to assess, consider, and control cumulative and secondary impacts of
coastal growth and development, including the collective effect of various indiv
idual uses or activities on coastal resources, such as coastal wetlands, and the
cumulative effect of nonpoint pollution from individual land uses or water uses
.
`(5) COASTAL ENERGY DEVELOPMENT- Adoption of procedures and enforce
able policies to help facilitate the siting of energy facilities and accommodate
energy-related activities which may be of greater than local significance, incl
uding--
`(A) mitigation policies and guidelines which will be applicabl
e to energy development activities;
`(B) procedures to coordinate Federal energy policies and progr
ams with State coastal zone management programs; and
`(C) consolidation of permitting and regulatory reviews.
`(b) NATIONAL INTEREST IMPROVEMENTS PROGRAMS- To implement the program
required under subsection (a), the Under Secretary shall assess, for each coasta
l State, the priority needs for improvement in each of the special national inte
rest areas, and based on that assessment, shall seek to negotiate a National Int
erest Improvements Program (hereinafter in this section referred to as a `progra
m') for each coastal State with an approved management program. Each program sha
ll cover a period of at least 3 years and shall include specific, measurable goa
ls and milestones to facilitate effective oversight by the Under Secretary pursu
ant to subsection (e).
`(c) NOTIFICATION- In negotiating each program, the coastal State shall
notify and consult with appropriate Federal agencies, State agencies, local gov
ernments, regional organizations, port authorities, and the public, and where ap
propriate shall establish a citizens advisory group to assist in development and
implementation of the program.
`(d) PHASED IMPLEMENTATION- If necessary for effective administration,
the Under Secretary may stagger implementation of programs required under subsec
tion (a) such that no less than one-third of the participating coastal States ar
e negotiating a program in any single year.
`(1) ANNUAL REVIEW- The Under Secretary shall continually monitor p
rogress in implementing each program negotiated under this section and shall pro
vide each State with an annual evaluation of progress. Unless the Under Secretar
y finds, for each one-year period, that the coastal State is making continual an
d satisfactory progress in implementing each component of the program, the Under
Secretary shall notify the coastal State and the public and shall specify addit
ional actions required to ensure satisfactory implementation.
`(2) REASSESSMENT AND SUSPENSION- Six months after notifying a Stat
e under paragraph (1), the Under Secretary shall reassess the State's progress.
Unless the Under Secretary finds that the State is making satisfactory progress
in undertaking the actions required under paragraph (1), the Under Secretary sha
ll suspend that State's eligibility for further funding under this section for a
t least one year.
`(3) WAIVER- The Under Secretary may waive the requirements of this
section only by finding that a lack of satisfactory progress by a State is due
to factors which are beyond the control of the State and which were unforeseen a
t the time the plan was negotiated. The Under Secretary shall notify the Congres
s and the public before granting any waiver under this subsection.
`(f) FUNDING- Beginning in fiscal year 1991, at least 10 percent, but n
ot more than 20 percent, of the amounts appropriated under section 318(a)(1) to
implement sections 306 and 306A shall be used by the Under Secretary to implemen
t this section.
`(g) NO STATE MATCH REQUIRED- No State match is required for activities
funded under this section.
`(h) GRANT ALLOCATION- Funds available to implement this section shall
be distributed among eligible States as follows:
`(1) FORMULA GRANTS- Fifty percent according to regulations promulg
ated pursuant to section 306(c).
`(2) DISCRETIONARY GRANTS- Fifty percent for discretionary awards a
ccording to guidelines or regulations issued by the Under Secretary pursuant to
section 317.
`(i) REGULATIONS- The Under Secretary shall issue regulations under sec
tion 317 providing guidance for any program negotiated under this section.
`SEC. 311. PUBLIC HEARINGS AND MEETINGS.
`All public hearings and meetings required under this title shall be an
nounced at least 45 days prior to the hearing or meeting date. At the time of th
e announcement, all materials of the agency conducting a hearing or meeting and
pertinent to the hearing or meeting, including documents, studies, and other dat
a, shall be made available to the public for review and study. As similar materi
als are subsequently developed, they shall be made available to the public as th
ey become available to the agency.
`SEC. 312. REVIEW OF PERFORMANCE.
`(a) PERIODIC REVIEW OF STATE PROGRAMS- The Under Secretary shall condu
ct a continuing review of the performance of coastal States with respect to coas
tal management. Each review shall include a written evaluation with an assessmen
t and detailed findings concerning the extent to which each coastal State has im
plemented and enforced a program of the State approved by the Under Secretary un
der this Act (including regarding adherence by State agencies and units of local
government to the program), furthered the coastal management program requiremen
ts identified in section 303(3), satisfactorily complied with any national inter
est improvement program under section 310, and adhered to the terms of any grant
, loan, or cooperative agreement funded under this title.
`(b) PUBLIC PARTICIPATION- For the purpose of evaluating pursuant to su
bsection (a) a coastal State's performance, the Under Secretary shall conduct pu
blic meetings and provide opportunity for oral and written comments by the publi
c. Each such evaluation shall be prepared in report form, shall contain written
response to all written comments received, and shall be available to the public.
`(c) PROBATIONARY PERIOD- The Under Secretary may place a coastal State
on probation for not more than 2 years if the Under Secretary, on the basis of
an evaluation which has been completed pursuant to subsection (b), finds substan
tial evidence that the State is failing to adequately implement or enforce impor
tant components of its approved program but that such evidence or failure consti
tutes insufficient grounds for action pursuant to subsection (d). If the Under S
ecretary makes the finding authorized in this subsection--
`(1) the Under Secretary shall notify the coastal State of--
`(A) the effective date of the probation;
`(B) the portion or portions of the program to which the probat
ion is effective; and
`(C) written recommendations for corrective actions; and
`(2) the Under Secretary shall withdraw up to 25 percent of the fun
ds available to the State pursuant to this title for use in assisting the State
in implementing the recommendations under paragraph (1)(C), and any funds withdr
awn but not used to implement recommendations under paragraph (1)(C) shall be ad
ded to amounts appropriated under section 318(a)(1).
`(d) PROGRAM DISAPPROVAL- The Under Secretary shall withdraw approval o
f the management program of any coastal State, and shall withdraw any financial
assistance available to that State under this title as well as any unexpended po
rtion of such assistance, if the Under Secretary determines that the State is fa
iling to adhere to, and is not justified in deviating from--
`(1) the management program approved by the Under Secretary, or
`(2) the terms of any grant or cooperative agreement funded under t
his title, and refuses to remedy the deviation.
Upon the withdrawal of management program approval under this subsection,
the Under Secretary shall provide the coastal State with written specifications
of the actions that should be taken, or not engaged in, by the State in order t
hat such withdrawal may be canceled by the Under Secretary.
`(e) ADVANCE NOTIFICATION REQUIRED- Prior to taking any action required
under subsection (c) or (d), the Under Secretary shall notify the coastal State
and provide an opportunity for a public hearing on the proposed action.
`SEC. 313. RECORDS AND AUDIT.
`(a) RECORDS- Each recipient of financial assistance under this title s
hall keep any records as the Under Secretary shall prescribe, including records
which fully disclose the amount and disposition of the funds received and of the
proceeds of the assistance, the portion of the total cost of any project or und
ertaking supplied by other sources, and other records as will facilitate an effe
ctive audit.
`(b) ACCESS TO RECORDS- The Under Secretary and the Comptroller General
of the United States, or any of their duly authorized representatives, shall--<
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`(1) after any financial assistance is provided under this title; a
nd
`(2) until the expiration of 3 years after--
`(A) completion of the project, program, or other undertaking f
or which financial assistance was made or used, or
`(B) repayment of the loan or guaranteed indebtedness for which
financial assistance was provided;
have access to audit and examine any record, book, document, and paper wh
ich belongs to or is used or controlled by, any recipient of the financial assis
tance and which is pertinent for purposes of determining if the financial assist
ance is being, or was, used in accordance with this title.
`SEC. 314. WALTER B. JONES EXCELLENCE IN COASTAL MANAGEMENT AWARDS.
`(a) IN GENERAL- The Under Secretary shall, using sums in the Coastal Z
one Management Fund established under section 309, implement a program to promot
e excellence in coastal zone management by identifying and acknowledging outstan
ding accomplishments in the field.
`(b) AWARD CATEGORIES AND SELECTION- The Under Secretary shall select a
nnually--
`(1) one individual, other than an employee or officer of the Feder
al Government, whose contribution to the field of coastal zone management has be
en the most significant;
`(2) 5 local governments which have made the most progress in devel
oping and implementing the coastal zone management principles embodied in this t
itle; and
`(3) up to 10 graduate students whose academic study promises to co
ntribute materially to development of new or improved approaches to coastal zone
management.
`(c) LOCAL GOVERNMENT NOMINATIONS- In making selections under subsectio
n (b)(2) the Under Secretary shall solicit nominations from the coastal States,
and shall consult with experts in local government planning and land use.
`(d) GRADUATE STUDENT NOMINATIONS- In making selections under subsectio
n (b)(3) the Under Secretary shall solicit nominations from coastal States and t
he National Sea Grant College Program.
`(e) WALTER B. JONES AWARDS- Using sums in the Coastal Zone Management
Fund established under section 309, the Under Secretary shall establish and exec
ute appropriate awards, to be known as the `Walter B. Jones Awards', including--
`(1) cash awards in an amount not to exceed $5,000 each;
`(2) research grants; and
`(3) public ceremonies to acknowledge such awards.
`SEC. 315. NATIONAL ESTUARINE RESEARCH RESERVE SYSTEM.
`(a) ESTABLISHMENT OF SYSTEM- There is established the National Estuari
ne Research Reserve System (hereinafter in this section referred to as the `Syst
em'), consisting of--
`(1) each estuarine sanctuary designated under this section as in e
ffect before the date of the enactment of the Coastal Zone Management Reauthoriz
ation Act of 1985; and
`(2) each estuarine area designated as a national estuarine researc
h reserve under subsection (b).
Each estuarine sanctuary referred to in paragraph (1) is hereby designate
d as a national estuarine research reserve.
`(b) DESIGNATION OF NATIONAL ESTUARINE RESEARCH RESERVES- The Under Sec
retary may designate an estuarine area as a national estuarine research reserve
if--
`(1) the area constitutes, to the extent feasible, a natural unit w
hich can be set aside to provide scientists and students the opportunity to exam
ine over a period of time the ecological relationship within the area;
`(2) the Governor of the coastal State in which the area is located
nominates the area for that designation; and
`(3) the Under Secretary finds that--
`(A) the area is a representative estuarine ecosystem that is s
uitable for long-term monitoring and research and contributes to the biogeograph
ical and typological balance of the System;
`(B) the laws of the coastal State provide long-term protection
for reserve resources to ensure a stable environment for research;
`(C) designation of the area as a reserve will serve to enhance
public awareness and understanding of estuarine areas, and provide suitable opp
ortunities for public education and interpretation; and
`(D) the coastal State in which the area is located has complie
d with the requirements of any regulations issued by the Under Secretary to impl
ement this section.
`(c) ESTUARINE RESEARCH GUIDELINES- The Under Secretary shall develop g
uidelines for the conduct of research within the System that shall include the f
ollowing:
`(1) IDENTIFYING PRIORITIES- A mechanism for identifying and establ
ishing priorities among the coastal management issues that should be addressed t
hrough coordinated research within the System.
`(2) RESEARCH OBJECTIVES- The establishment of common research prin
ciples and objectives to guide the development of research programs within the S
ystem.
`(3) COMMON METHODS- The identification of uniform research methodo
logies which will ensure comparability of data, the broadest application of rese
arch results, and the maximum use of the System for research purposes.
`(4) MONITORING- The conduct of monitoring activities within the Sy
stem, including the monitoring of physical, chemical, and biological parameters
and criteria associated with the estuarine ecosystem.
`(5) STANDARDS- The establishment of performance standards by which
the effectiveness of the research efforts and the value of reserves within the
System may be measured in addressing and coastal management issues identified in
paragraph (1).
`(6) OUTSIDE FUNDING SOURCES- The consideration of sources of funds
for estuarine research in addition to amounts authorized under this title, and
strategies for encouraging the use of these funds within the System, with partic
ular emphasis on mechanisms established under subsection (d).
In developing the guidelines under this subsection, the Under Secretary s
hall consult with prominent members of the estuarine research community.
`(d) PROMOTION AND COORDINATION OF ESTUARINE RESEARCH- The Under Secret
ary shall take such action as is necessary to promote and coordinate the use of
the System for research purposes, including the following:
`(1) DATA MANAGEMENT- Developing a data base accessible to the publ
ic for information derived from monitoring and research activities within the Sy
stem.
`(2) TECHNICAL TRANSFER- Providing for the exchange of information
and data among national estuarine research reserves and between the reserves and
estuarine and coastal resource managers.
`(3) PRIORITY CONSIDERATION- Requiring the Department of Commerce,
in conducting or supporting estuarine research, to give priority consideration t
o research that uses the System.
`(4) PROMOTING RESEARCH- Consulting with other Federal and State ag
encies to promote use by such agencies of one or more national estuarine researc
h reserves within the System when conducting estuarine research.
`(e) EDUCATION- The Under Secretary shall--
`(1) develop guidelines providing for education activities in natio
nal estuarine research reserves;
`(2) promote the use of national estuarine research reserves by edu
cational institutions and by programs of the United States Department of Educati
on; and
`(3) establish and implement a program to exchange educational info
rmation throughout the System.
`(f) FINANCIAL ASSISTANCE-
`(1) IN GENERAL- The Under Secretary may, in accordance with such r
ules and regulations as the Under Secretary shall promulgate, make grants--
`(A) to a coastal State entity--
`(i) to acquire lands and waters, and any property interest
s therein, necessary to ensure the appropriate long-term management of an area a
s a national estuarine research reserve,
`(ii) to operate or manage a national estuarine research re
serve and to construct appropriate reserve facilities, or
`(iii) for educational or interpretive activities; and
`(B) to any coastal State entity or public or private instituti
on or person to support research and monitoring within a national estuarine rese
arch reserve that are consistent with the research guidelines developed under su
bsection (c).
`(2) TERMS AND CONDITIONS- Financial assistance provided under para
graph (1) shall be subject to any terms and conditions the Under Secretary consi
ders necessary or appropriate to protect the interests of the United States, inc
luding requiring coastal States to execute suitable title documents setting fort
h the property interests of the United States in any lands and waters acquired i
n whole or in part with financial assistance under this section.
`(3) MATCHING FUNDS- (A) The amount of financial assistance provide
d under paragraph (1)(A)(i) for any one national estuarine research reserve may
not exceed an amount equal to 50 percent of the costs of the lands, waters, and
interests therein, or $6,000,000, whichever amount is less.
`(B) The amount of the financial assistance provided under paragrap
hs (1)(A) (ii) and (iii) and paragraph (1)(B) may not exceed 50 percent of the c
osts incurred to achieve the purposes described in those paragraphs with respect
to a national estuarine research reserve.
`(C) For purposes of this section, the term `coastal State entity'
means any legal entity established by legislative or executive act or order of a
coastal State's government, including State universities, colleges, commissions
, consortia, boards, or other institutions established for purposes, including r
esearch, education, or resource management.
`(g) EVALUATION OF SYSTEM PERFORMANCE-
`(1) IN GENERAL- The Under Secretary shall periodically evaluate th
e operation and management of each national estuarine research reserve, includin
g educational and interpretive activities, and the research being conducted with
in the reserve.
`(2) SUSPENSION OF FUNDING- If evaluation under paragraph (1) revea
ls that the operations and management of national estuarine research reserve is
deficient, or that the research being conducted within the reserve is not consis
tent with the research guidelines developed under subsection (c), the Under Secr
etary may suspend the eligibility of that reserve for financial assistance under
subsection (f) until the deficiency or inconsistency is remedied.
`(3) WITHDRAWAL OF DESIGNATION- The Under Secretary may withdraw th
e designation of an estuarine area as a national estuarine research reserve if e
valuation under paragraph (1) reveals that--
`(A) the basis for any of the findings made under subsection (b
)(3) no longer exists; or
`(B) a substantial portion of the research conducted within the
reserve, over a period of years, has not been consistent with the research guid
elines developed under subsection (c).
`(h) REPORT- The Under Secretary shall include in the report required u
nder section 316 information regarding--
`(1) new designations of national estuarine research reserves;
`(2) any expansion of existing national estuarine research reserves
;
`(3) the status of the research program being conducted within the
System; and
`(4) a summary of the evaluations made under subsection (g).
`(i) COOPERATIVE AGREEMENTS AND DONATIONS-
`(1) COOPERATIVE AGREEMENTS- The Under Secretary may enter into coo
perative agreements with any nonprofit organization or institution of higher lea
rning--
`(A) to aid and promote interpretive, historical, scientific, a
nd educational activities within any national estuarine research reserve; and
`(B) for the solicitation of private donations for the support
of such activities.
`(2) DONATIONS- The Under Secretary may accept donations of funds,
property, and services for use in designating and administering national estuari
ne research reserves under this section. Such donations shall be considered to b
e a gift or bequest to, or for the use of, the United States.
`SEC. 316. COASTAL ZONE MANAGEMENT REPORT.
`(a) IN GENERAL- The Under Secretary shall transmit to the Congress rep
orts summarizing the administration of this title during each period of 2 consec
utive fiscal years. Each report shall be transmitted to the Congress not later t
han April 1 of the year following the close of the biennial period to which it p
ertains, and shall include the following:
`(1) RECENTLY APPROVED PROGRAMS- An identification of the State pro
grams approved pursuant to this title during the preceding fiscal year and a des
cription of those programs.
`(2) PARTICIPATING STATES- A list of the coastal States participati
ng under this title and a description of the status of each State's program and
its accomplishments during the preceding fiscal year.
`(3) NONPARTICIPATING STATES- A list of the coastal States not part
icipating under this title, a description of efforts by the Under Secretary to e
ncourage their participation, and additional action or incentives needed to secu
re participation.
`(4) FUNDING SUMMARY- An itemization of the allocation of funds to
the various coastal States and a breakdown of the major projects and areas in wh
ich these funds were expended.
`(5) PROGRAM PROBATIONS AND DISAPPROVALS- An identification of any
coastal State program which has been reviewed and placed on probation or disappr
oved, and a statement of the reasons for that action.
`(6) EVALUATION SUMMARY- A summary of evaluation findings prepared
in accordance with section 312(a).
`(7) INCONSISTENT ACTIVITIES AND PROJECTS- A list of all activities
and projects which are not consistent with an applicable approved State managem
ent program.
`(8) REVISED REGULATIONS- A summary of the regulations issued by th
e Under Secretary during the biennial period covered by the report.
`(9) PRIORITY PROBLEMS- A summary of outstanding problems arising i
n the administration of this title, in order of priority.
`(10) MISCELLANEOUS- Any other information as may foster effective
oversight by the Congress.
`(11) STATE VIEWS- Summary views and recommendations from each coas
tal State, including recommendations for additional legislation, necessary to ac
hieve the objectives of this title and enhance its effective operation.
`(b) GUIDELINES- For the purposes of paragraph (11), the Under Secretar
y shall issue guidelines to the coastal States which outline the format for subm
itting summary views and recommendations.
`SEC. 317. RULES AND REGULATIONS.
`The Under Secretary shall develop and promulgate, pursuant to section
553 of title 5, United States Code, after issuance of notice and opportunity for
full participation by relevant Federal agencies, State agencies, local governme
nts, regional organizations, port authorities, and other interested parties, bot
h public and private, any rules and regulations as may be necessary to carry out
the provisions of this title.
`SEC. 318. AUTHORIZATION OF APPROPRIATIONS.
`(a) AUTHORIZATIONS- There are authorized to be appropriated to the Und
er Secretary--
`(1) for grants under sections 306 and 306A, not to exceed $46,670,
000 for fiscal year 1991, $48,770,000 for fiscal year 1992, $50,965,000 for fisc
al year 1993, $53,258,000 for fiscal year 1994, and $55,655,000 for fiscal year
1995, to remain available until expended;
`(2) for grants under section 306B, not to exceed $10,000,000 for f
iscal year 1991, $20,000,000 for fiscal year 1992, $30,000,000 for fiscal year 1
993, $35,000,000 for fiscal year 1994, and $40,000,000 for fiscal year 1995, to
remain available until expended; and
`(3) for grants under section 315, not to exceed $7,000,000 for fis
cal year 1991, $7,355,000 for fiscal year 1992, $7,710,000 for fiscal year 1993,
$8,065,000 for fiscal year 1994, and $8,420,000 for fiscal year 1995, to remain
available until expended.
`(b) LIMITATION ON MATCHING FUNDS- Federal funds received from other so
urces shall not be used to pay a coastal State's share of costs under section 30
6.
`(c) UNOBLIGATED GRANTS- The amount of any grant, or portion of a grant
, made to a coastal State under any section of this Act which is not obligated b
y the State during the fiscal year, for which it was first authorized to be obli
gated by the State, or during the next fiscal year, shall revert to the Under Se
cretary. The Under Secretary shall add the reverted amount to those funds availa
ble for grants under the section for which the reverted amount was originally ma
de available.
`(d) PASSTHROUGH OF GRANT FUNDS- With the approval of the Under Secreta
ry, a coastal State may allocate to a local government, an area-wide agency desi
gnated under section 204 of the Demonstration Cities and Metropolitan Developmen
t Act of 1966, a regional agency, or an interstate agency, a portion of any gran
t made under this title. An allocation of grant funds shall not relieve a State
of the responsibility for ensuring that any funds so allocated are used in confo
rmance with applicable grant terms and conditions and to further the State's app
roved management program.
`SEC. 319. INTERSTATE AGREEMENTS AND COMPACTS.
`The consent of the Congress is hereby given to 2 or more coastal State
s to negotiate, and to enter into, agreements or compacts, which do not conflict
with any law or treaty of the United States, for--
`(1) developing and administering coordinated coastal zone planning
, policies, and programs pursuant to sections 305 and 306; and
`(2) establishing executive instrumentalities or agencies which suc
h States deem desirable for the effective implementation of such agreements or c
ompacts. Such agreements or compacts shall be binding and obligatory upon any St
ate or party thereto without further approval by the Congress.'.
SEC. 7204. DEADLINES FOR COMPLIANCE.
(a) NEW REQUIREMENTS- Each State which submits a management program for
approval under section 306 of the Coastal Zone Management Act of 1972, as amend
ed by this Act (including a State which submitted such a program before the date
of the enactment of this Act), shall demonstrate to the Under Secretary of Comm
erce for Oceans and Atmosphere compliance with the requirements of section 306(d
) (14) and (15) of that Act by not later than 2 years after the date of the enac
tment of this Act.
(b) LAND USE MANAGEMENT PROGRAM GUIDELINES AND REGULATIONS- Within 180
days after the date of the enactment of this Act, the Under Secretary of Commerc
e for Oceans and Atmosphere shall issue guidelines for coastal States to follow
in developing a program under section 306B of the Coastal Zone Management Act of
1972, as amended by this Act. Within 18 months after that date of enactment, th
e Under Secretary shall promulgate regulations governing the receipt, review, an
d approval of programs under that section.
SEC. 7205. PACIFIC ISLAND STATE DEMONSTRATION PROJECT.
(a) AUTHORIZATION- There is authorized to be appropriated not more than
$100,000 for each of fiscal years 1991 through 1995 for use by one Pacific isla
nd coastal State to develop a draft joint Federal-State resource management plan
for ocean resources lying 3 to 12 miles from the baseline from which its territ
orial sea is measured. Amounts appropriated under this section may not be used t
o develop a plan affecting fishery resources subject to management under the Mag
nuson Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.).
(b) REPORT- At the end of fiscal year 1995, the Pacific island coastal
State which develops a management plan pursuant to subsection (a) shall transmit
the plan to the Congress.
SEC. 7206. REFERENCE.
A reference in any law, regulation, record, map, or paper or other docu
ment to the Coastal Zone Management Act of 1972 may be construed to be a referen
ce to such Act, as amended by this Act.
SEC. 7207. FEDERAL AGENCY CONSISTENCY.
The consistency requirements of section 307 of the Coastal Zone Managem
ent Act (16 U.S.C. 1456) shall apply to Federal agency activities or federally p
ermitted activities under title I of the Marine Protection, Research, and Sanctu
aries Act of 1972, if the Federal activity or permitted activity affects land us
es, water uses, or natural resources of the coastal zone.
TITLE VIII--COMMITTEE ON POST OFFICE AND CIVIL SERVICE
Subtitle A--Civil Service
SEC. 8001. ELIMINATION OF LUMP-SUM RETIREMENT BENEFIT.
(a) LUMP-SUM BENEFIT- (1) Sections 8343a and 8420a of title 5, United S
tates Code, are each amended by adding at the end the following:
`(f)(1) Notwithstanding any other provision of this section, and except
as provided in paragraph (2), an alternative form of annuity under this section
may not be elected if the commencement date of the annuity would be later than
November 1, 1990.
`(2) Nothing in this subsection shall prevent an election from being ma
de by an employee or Member who, at the time of retiring under this subchapter,
is at least 65 years of age and has completed at least 30 years of service.
`(3) This subsection shall cease to be effective as of October 1, 1995.
'.
(2) Section 4005 of the Omnibus Budget Reconciliation Act of 1989 (Publ
ic Law 101-239; 103 Stat. 2135) is amended--
(A) in subsection (a), by striking `October 1, 1990.' and inserting
`November 2, 1990.'; and
(B) by adding at the end the following:
`(f) CONTINUED APPLICABILITY- The preceding provisions of this section
(disregarding the provision in subsection (a) limiting this section's applicabil
ity to annuities commencing before the date specified in such provision) shall a
lso apply in the case of any employee or Member whose election of an alternative
form of annuity would not have been allowable under section 8343a(f) or 8420a(f
) of title 5, United States Code (as the case may be), but for paragraph (2) the
reof.'.
(C)(i) Section 6001(b)(2) of the Omnibus Budget Reconciliation Act
of 1987 (5 U.S.C. 8343a note) and section 4005(b)(2) of the Omnibus Budget Recon
ciliation Act of 1989 (103 Stat. 2135) are each amended by striking `described i
n paragraph (1).' and inserting `on which the payment described in paragraph (1)
is paid.'.
(ii) The amendments made by clause (i) shall not apply in any case
in which the first half of the lump-sum payment involved was paid before the beg
inning of the 11-month period which ends on the date of the enactment of this Ac
t.
(D) Section 2 of Public Law 101-227 (103 Stat. 1943) is repealed.
(3) Section 8348(a)(1)(B) of title 5, United States Code, is amended by
inserting `in administering alternative forms of annuities under sections 8343a
and 8420a (and related provisions of law),' before `and in withholding'.
(b) PRIOR REFUNDS- (1) Section 8334(d) of title 5, United States Code,
is amended--
(A) by striking `(d)' and inserting `(d)(1)'; and
(B) by adding at the end the following:
`(2)(A) This paragraph applies with respect to any employee or Member w
ho--
`(i) separates before October 1, 1990, and receives (or elects, in
accordance with applicable provisions of this subchapter, to receive) a refund (
described in paragraph (1)) which relates to a period of service ending before O
ctober 1, 1990;
`(ii) retires on or after November 1, 1990, entitled to an annuity
under this subchapter (other than a disability annuity) based on service of such
employee or Member; and
`(iii) does not make the deposit (described in paragraph (1)) requi
red in order to receive credit for the period of service with respect to which t
he refund relates.
`(B) Notwithstanding the second sentence of paragraph (1), the annuity
to which an employee or Member under this paragraph is entitled shall (subject t
o adjustment under section 8340) be equal to an amount which, when taken togethe
r with the unpaid amount referred to in subparagraph (A)(iii), would result in t
he present value of the total being actuarially equivalent to the present value
of the annuity which would otherwise be provided the employee or Member under th
is subchapter, as computed under subsections (a)-(i) and (n) of section 8339 (tr
eating, for purposes of so computing the annuity which would otherwise be provid
ed under this subchapter, the deposit referred to in subparagraph (A)(iii) as if
it had been timely made).
`(C) The Office of Personnel Management shall prescribe such regulation
s as may be necessary to carry out this paragraph.'.
(2)(A) Section 8334 of title 5, United States Code, is amended in parag
raphs (1) and (2) of subsection (e), and in subsection (h), by striking `(d),' a
nd inserting `(d)(1),'.
(B) Section 8334(f) and section 8339(i)(1) of title 5, United States Co
de, are amended by striking `(d)' and inserting `(d)(1)'.
(C) Section 8339(e) of title 5, United States Code, is amended by strik
ing `8334(d)' and inserting `8334(d)(1)'.
(D) The second sentence of section 8342(a) of title 5, United States Co
de, is amended by inserting `or 8334(d)(2)' after `8343a'.
(3) The amendments made by this subsection shall be effective with resp
ect to any annuity having a commencement date later than November 1, 1990.
SEC. 8002. REFORMS IN THE HEALTH BENEFITS PROGRAM.
(a) HOSPITALIZATION-COST-CONTAINMENT MEASURES- Section 8902 of title 5,
United States Code, is amended by adding at the end the following:
`(n) A contract for a plan described by section 8903(1), (2), or (3), o
r section 8903a, shall require the carrier--
`(1) to implement hospitalization-cost-containment measures, includ
ing measures--
`(A) for verifying the medical necessity of any proposed treatm
ent or surgery;
`(B) for determining the feasibility or appropriateness of prov
iding services on an outpatient rather than on an inpatient basis;
`(C) for determining the appropriate length of stay (through co
ncurrent review or otherwise) in cases involving inpatient care; and
`(D) involving case management, if the circumstances so warrant
; and
`(2) to establish incentives to encourage compliance with measures
under paragraph (1).'.
(b) IMPROVED CASH MANAGEMENT- Section 8909(a) of title 5, United States
Code, is amended by adding at the end (as a flush left sentence) the following:
`Payments from the Fund to a plan participating in a letter-of-credit arr
angement under this chapter shall, in connection with any payment or reimburseme
nt to be made by such plan for a health service or supply, be made only on a che
cks-presented basis (as defined under regulations of the Department of the Treas
ury).'.
(c) EXEMPTION FROM STATE PREMIUM TAXES- Section 8909 of title 5, United
States Code, is amended by adding at the end the following:
`(f)(1) No tax, fee, or other monetary payment may be imposed, directly
or indirectly, on a carrier or an underwriting or plan administration subcontra
ctor of an approved health benefits plan by any State, the District of Columbia,
or the Commonwealth of Puerto Rico, or by any political subdivision or other go
vernmental authority thereof, with respect to any payment made from the Fund.
`(2) Paragraph (1) shall not be construed to exempt any carrier or unde
rwriting or plan administration subcontractor of an approved health benefits pla
n from the imposition, payment, or collection of a tax, fee, or other monetary p
ayment on the net income or profit accruing to or realized by such carrier or un
derwriting or plan administration subcontractor from business conducted under th
is chapter, if that tax, fee, or payment is applicable to a broad range of busin
ess activity.'.
(d) IMPROVED COORDINATION WITH MEDICARE- Section 8910 of title 5, Unite
d States Code, is amended by adding at the end the following:
`(d) The Office, in consultation with the Department of Health and Huma
n Services, shall develop and implement a system through which the carrier for a
n approved health benefits plan described by section 8903 or 8903a will be able
to identify those annuitants or other individuals covered by such plan who are e
ntitled to benefits under part A or B of title XVIII of the Social Security Act
in order to ensure that payments under coordination of benefits with Medicare do
not exceed the statutory maximums which physicians may charge Medicare enrollee
s.'.
(e) EFFECTIVE DATE- The amendments made by this section shall be effect
ive as of January 1, 1991, and shall apply with respect to contract years beginn
ing on or after that date.
Subtitle B--Postal Service
SEC. 8101. FUNDING OF COLAS FOR POSTAL SERVICE ANNUITANTS AND SURVIVOR AN
NUITANTS.
(a) EXPANDED SCOPE OF COVERAGE; CHANGE IN PRORATION RULE- Section 8348(
m) of title 5, United States Code, is amended--
(1) in paragraph (1), by striking `October 1, 1986,' each place it
appears and inserting `July 1, 1971,'; and
(2) in paragraph (3), by striking `civilian service performed after
June 30, 1971,' and inserting `service performed as an employee of the United S
tates Postal Service,'.
(b) REPEAL OF PROVISION RELATING TO CERTAIN EARLIER COLAS- Section 4002
(b) of the Omnibus Budget Reconciliation Act of 1989 (Public Law 101-239; 103 St
at. 2134) is repealed.
(c) PROVISION RELATING TO PRE-1991 COLAS- (1) For the purpose of this s
ubsection--
(A) the term `pre-1991 COLA' means a cost-of-living adjustment whic
h took effect in any of the fiscal years specified in subparagraphs (A)-(N) of p
aragraph (3);
(B) the term `post-1990 fiscal year' means a fiscal year after fisc
al year 1990; and
(C) the term `pre-1991 fiscal year' means a fiscal year before fisc
al year 1991.
(2) Notwithstanding any other provision of law, an installment (equal t
o an amount determined by reference to paragraph (3)) shall be payable by the Un
ited States Postal Service in a post-1990 fiscal year, with respect to a pre-199
1 COLA, if such fiscal year occurs within the 15-fiscal-year period which begins
with the first fiscal year in which that COLA took effect, subject to section 8
104.
(3) Notwithstanding any provision of section 8348(m) of title 5, United
States Code, or any determination thereunder (including any made under such pro
vision, as in effect before October 1, 1990), the estimated increase in the unfu
nded liability referred to in paragraph (1) of such section 8348(m) shall be pay
able, in accordance with this subsection, based on annual installments equal to-
-
(A) $6,500,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1977;
(B) $7,000,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1978;
(C) $10,400,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1979;
(D) $20,500,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1980;
(E) $26,100,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1981;
(F) $28,100,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1982;
(G) $30,600,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1983;
(H) $5,700,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1984;
(I) $19,400,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1985;
(J) $7,400,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1986;
(K) $8,400,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1987;
(L) $38,000,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1988;
(M) $36,600,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1989; and
(N) $41,900,000 each, with respect to the cost-of-living adjustment
which took effect in fiscal year 1990.
(4) Any installment payable under this subsection shall be paid by the
Postal Service at the same time as when it pays any installments due in that sam
e fiscal year under section 8348(m) of title 5, United States Code.
(5) An installment payable under this subsection in a fiscal year, with
respect to a pre-1991 COLA, shall be in lieu of any other installment for which
the Postal Service might otherwise be liable in such fiscal year, with respect
to such COLA, under section 8348(m) of title 5, United States Code.
(d) EFFECTIVE DATE- This section and the amendments made by this sectio
n shall take effect on October 1, 1990.
SEC. 8102. FUNDING OF HEALTH BENEFITS FOR POSTAL SERVICE RETIREES AND SUR
VIVORS OF POSTAL SERVICE EMPLOYEES OR RETIREES.
(a) EXPANDED SCOPE OF COVERAGE- Section 8906(g)(2) of title 5, United S
tates Code, is amended by striking `October 1, 1986,' each place it appears and
inserting `July 1, 1971,'.
(b) CONTRIBUTIONS TO BE PRORATED- Section 8906(g)(2) of title 5, United
States Code, as amended by subsection (a), is further amended--
(1) by striking `(2)' and inserting `(2)(A)'; and
(2) by adding at the end the following:
`(B) In determining any amount for which the Postal Service is liable u
nder this paragraph, the amount of the liability shall be prorated to reflect on
ly that portion of total service which is attributable to service performed (by
the former postal employee or by the deceased individual referred to in subparag
raph (A), as the case may be) as an employee of the United States Postal Service
, as estimated by the Office of Personnel Management.'.
(c) EFFECTIVE DATE- The amendments made by this section shall take effe
ct on October 1, 1990, and shall apply with respect to amounts payable for perio
ds beginning on or after that date.
SEC. 8103. PAYMENTS RELATING TO AMOUNTS WHICH WOULD HAVE BEEN DUE BEFORE
FISCAL YEAR 1987.
(a) DEFINITION- For the purpose of this section, the term `pre-1987 fis
cal year' means a fiscal year before fiscal year 1987.
(b) FOR PAST RETIREMENT COLAS- As payment for any amounts which would h
ave been due in any pre-1987 fiscal year under the provisions of section 8348(m)
of title 5, United States Code (as amended by section 8101) if such provisions
had been in effect as of July 1, 1971, the United States Postal Service shall pa
y into the Civil Service Retirement and Disability Fund--
(1) $253,300,000, not later than September 30, 1991;
(2) $566,200,000, not later than September 30, 1992;
(3) $548,600,000, not later than September 30, 1993;
(4) $530,200,000, not later than September 30, 1994; and
(5) $510,900,000, not later than September 30, 1995.
(c) FOR PAST HEALTH BENEFITS- As payment for any amounts which would, f
or any period ending before the start of fiscal year 1987, have been payable und
er the provisions of section 8906(g)(2) of title 5, United States Code (as amend
ed by section 8102) if such provisions had been in effect as of July 1, 1971, th
e United States Postal Service shall pay into the Employees Health Benefits Fund
--
(1) $88,900,000, not later than September 30, 1991;
(2) $198,700,000, not later than September 30, 1992;
(3) $192,600,000, not later than September 30, 1993;
(4) $186,100,000, not later than September 30, 1994; and
(5) $179,300,000, not later than September 30, 1995.
SEC. 8104. TERMINATION OF CONTRIBUTION REQUIREMENTS.
(a) RETIREMENT COLAS- Section 8348(m) of title 5, United States Code, a
nd section 8101(c) shall cease to be effective at the close of the fiscal year e
nding on September 30, 1995, and the United States Postal Service shall not be l
iable for any amount which would first have come due under such section 8348(m)
or section 8101(c) after that date.
(b) HEALTH BENEFITS- The provisions of section 8906(g)(2) of title 5,
United States Code, shall not be effective with respect to any amount which (but
for this subsection) would otherwise have been payable under such provisions fo
r any period beginning after September 30, 1995.
SEC. 8105. TREATMENT OF CONTRIBUTION REQUIREMENTS FOR POSTAL RATEMAKING P
URPOSES.
(a) DEFINITIONS- For the purpose of this section--
(1) the term `total estimated costs' has the meaning given such ter
m by section 3621 of title 39, United States Code;
(2) the term `pre-1992 fiscal year' means a fiscal year before fisc
al year 1992; and
(3) the term `amount required to be paid by the United States Posta
l Service pursuant to the Omnibus Budget Reconciliation Act of 1990' means an am
ount payable under section 8348(m) or section 8906(g)(2) of title 5, United Stat
es Code (as amended by this title), section 8101(c), or section 8103.
(b) RULES- (1) In making a recommended decision under section 3624 of t
itle 39, United States Code, with respect to a request which was made under sect
ion 3622 of such title and which is pending as of the date of enactment of this
Act, the Postal Rate Commission shall be governed by the following:
(A) Any amount required to be paid by the United States Postal Serv
ice pursuant to the Omnibus Budget Reconciliation Act of 1990 in fiscal year 199
2--
(i) shall be treated as a separate and distinct addition to the
total estimated costs for such fiscal year; and
(ii) shall not result in the diminution of any other amount whi
ch is part of the total estimated costs for such fiscal year.
(B) Any amount required to be paid by the United States Postal Serv
ice pursuant to the Omnibus Budget Reconciliation Act of 1990 in a pre-1992 fisc
al year shall be taken into account to the same extent and in the same manner as
any other cost (comprising part of the total estimated costs) incurred by the P
ostal Service in that same fiscal year.
(C) The deadline by which the Postal Rate Commission must transmit
its recommended decision to the Governors shall be the same as would otherwise a
pply if this section had not been enacted.
(2) Any recommended decision under section 3624 of title 39, United Sta
tes Code, subsequent to the one as to which paragraph (1) applies, and which rel
ates to a request under section 3622(a) of such title, shall be made in a manner
consistent with the requirements of paragraph (1).
Subtitle A--Coordination
SEC. 8201. COORDINATION.
For purposes of section 202 of the Balanced Budget and Emergency Defici
t Reaffirmation Act of 1987, this title and the amendments made by this title sh
all be considered an exception under subsection (b) of such section.
TITLE IX--PUBLIC WORKS AND TRANSPORTATION
Subtitle A--Sense of the House of Representatives
SEC. 9001. SENSE OF THE HOUSE OF REPRESENTATIVES.
It is the sense of the House of Representatives that, if any Senate ame
ndment to H.R. 5835 provides for any increase in motor fuel excise taxes or avia
tion taxes that would be deposited in the Highway Trust Fund or Aviation Trust F
und, respectively, then the managers on the part of the House for the conference
on the reconciliation bill should consider provisions which ensure that an amou
nt equal to the estimated tax payments from any such increases enacted shall be
made available in the fiscal year collected for highway and aviation purposes, r
espectively. Such provisions may include provisions similar to those included in
the reconciliation submission of the Committee on Public Works and Transportati
on, dated October 12, 1990, to the Committee on the Budget.
Subtitle B--Aviation Safety and Capacity Expansion
SEC. 9101. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE- This subtitle may be cited as the `Aviation Safety and
Capacity Expansion Act of 1990'.
Sec. 9101. Short title; table of contents.
Sec. 9102. Construction of firefighting training facilities.
Sec. 9103. Declaration of policy.
Sec. 9104. Airport improvement program.
Sec. 9105. Airway improvement program.
Sec. 9106. FAA operations.
Sec. 9107. Operation and maintenance of aviation system.
Sec. 9108. Weather service.
Sec. 9109. Military airport program.
Sec. 9110. Passenger facility charges.
Sec. 9111. Reduction in airport improvement program apportionments fo
r large and medium hub airports imposing passenger facility charges.
Sec. 9112. Use of PFC reduced apportionment funds.
Sec. 9113. Small community air service program.
Sec. 9114. State block grant pilot program.
Sec. 9115. Auxiliary flight service station program.
Sec. 9116. Airport and airway improvements for the Virgin Islands.
Sec. 9117. Engine condition monitoring systems.
Sec. 9118. Procurement authority.
Sec. 9119. Expanded east coast plan.
Sec. 9120. Transfer of format of geodetic navigation information.
Sec. 9123. Prohibition against fraudulent use of `made in America' la
bels.
Sec. 9124. Restrictions on contract awards.
SEC. 9102. CONSTRUCTION OF FIREFIGHTING TRAINING FACILITIES.
Section 503(a)(2) of the Airport and Airway Improvement Act of 1982 (49
U.S.C. App. 2202(a)(2)) is amended--
(1) by striking `and' at the end of subparagraph (B);
(2) by striking the period at the end of subparagraph (C) and inser
ting `; and'; and
(3) by inserting after subparagraph (C) the following new subparagr
aph:
`(D) any acquisition of land for, or work involved to construct
, a burn area training structure on or off the airport for the purpose of provid
ing live fire drill training for aircraft rescue and firefighting personnel requ
ired to receive such training by a regulation of the Department of Transportatio
n, including basic equipment and minimum structures to support such training in
accordance with standards of the Federal Aviation Administration.'.
SEC. 9103. DECLARATION OF POLICY.
Section 502(a) of the Airport and Airway Improvement Act of 1982 (49 U.
S.C. App. 2201(a)) is amended--
(1) in paragraph (5) by inserting `, including as they may be appli
ed between category and class of aircraft' after `discriminatory practices'; and
(2) in paragraph (13) by inserting `and should not unjustly discrim
inate between categories and classes of aircraft' after `attempted'.
SEC. 9104. AIRPORT IMPROVEMENT PROGRAM.
Section 505 of the Airport and Airway Improvement Act of 1982 (49 U.S.C
. App. 2204) is amended--
(1) in subsection (a) by striking `13,816,700,000' and inserting `$
13,916,700,000'; and
(2) in subsection (b) by striking `September 30, 1987' and insertin
g `September 30, 1992'.
SEC. 9105. AIRWAY IMPROVEMENT PROGRAM.
(a) RENAMING OF AIRWAY PLAN- Section 504(b)(1) of the Airport and Airwa
y Improvement Act of 1982 (49 U.S.C. App. 2203(b)(1)) is amended by inserting af
ter the second sentence the following new sentence: `For fiscal year 1991 and th
ereafter, the revised plan shall be known as the `Airway Capital Investment Plan
'.'.
(b) AIRWAY FACILITIES AND EQUIPMENT- The first sentence of section 506(
a)(1) of such Act (49 U.S.C. App. 2205(a)(1)) is amended by striking `September
30, 1981,' and all that follows through the period and inserting the following:
`September 30, 1990, aggregate amounts not to exceed $2,500,000,000 for fiscal y
ear 1991 and $5,500,000,000 for the fiscal years ending before October 1, 1992.'
.
SEC. 9106. FAA OPERATIONS.
Section 106 of title 49, United States Code, is amended by adding at th
e end the following new subsection:
`(k) AUTHORIZATION OF APPROPRIATIONS FOR OPERATIONS- There is authorize
d to be appropriated for operations of the Administration $4,088,000,000 for fis
cal year 1991 and $4,412,600,000 for fiscal year 1992.'.
SEC. 9107. OPERATION AND MAINTENANCE OF AVIATION SYSTEM.
(a) ELIMINATION OF PENALTY- Section 506(c)(3)(B)(i) of the Airport and
Airway Improvement Act of 1982 (49 U.S.C. App. 2205(c)(3)(B)(i)) is amended--
(1) by inserting `and' after `1989'; and
(2) by striking `$3,770,000,000' and all that follows through `1992
,'.
(b) FUNDING- Section 506(c) of such Act (49 U.S.C. App. 2205(c)) is ame
nded by adding at the end the following new paragraph:
`(4) FISCAL YEARS 1991-1992- The amount appropriated from the Trust
Fund for the purposes of clauses (A) and (B) of paragraph (1) of this subsectio
n for each of fiscal years 1991 and 1992 may not exceed--
`(A) 75 percent of the amount of funds made available under sec
tion 505, subsections (a) and (b) of this section, and section 106(k) of title 4
9, United States Code, for such fiscal year; less
`(B) the amount of funds made available under section 505 and s
ubsections (a) and (b) of this section for such fiscal year.'.
SEC. 9108. WEATHER SERVICE.
The second sentence of section 506(d) of the Airport and Airway Improve
ment Act of 1982 (49 U.S.C. App. 2205(d)) is amended--
(1) by striking `and' the first place it appears and inserting a co
mma; and
(2) by inserting before the period the following: `, $34,521,000 fo
r fiscal year 1991, and $35,389,000 for fiscal year 1992'.
SEC. 9109. MILITARY AIRPORT PROGRAM.
(a) DECLARATION OF POLICY- Section 502(a) of the Airport and Airway Imp
rovement Act of 1982 (49 U.S.C. App. 2201(a)) is further amended--
(1) by striking `and' at the end of paragraph (12);
(2) by striking the period at the end of paragraph (13) and inserti
ng `; and'; and
(3) by adding at the end the following:
`(14) special emphasis should be placed on the conversion of approp
riate former military air bases to civil use and on the identification and impro
vement of additional joint-use facilities.'.
(b) SET-ASIDE- Section 508(d) of such Act (49 U.S.C. App. 2204(d)) is a
mended by striking paragraph (5) and inserting the following:
`(5) MILITARY AIRPORT SET-ASIDE- Not less than 1.5 percent of the f
unds made available under section 505 in each of fiscal years 1991 and 1992 shal
l be distributed during such fiscal year to sponsors of current or former milita
ry airports designated by the Secretary under subsection (f) for the purpose of
developing current and former military airports to improve the capacity of the n
ational air transportation system.
`(6) REALLOCATION- If the Secretary determines that he will not be
able to distribute the amount of funds required to be distributed under paragrap
h (1), (2), (3), (4), or (5) of this subsection for any fiscal year because the
number of qualified applications submitted in compliance with this title is insu
fficient to meet such amount, the portion of such amount the Secretary determine
s will not be distributed shall be available for obligation during such fiscal y
ear for other airports and for other purposes authorized by section 505 of this
title.'.
(c) DESIGNATION OF FORMER MILITARY AIRPORTS- Section 508 of such Act is
further amended by adding at the end the following new subsection:
`(f) Designation of Current or Former Military Airports-
`(1) DESIGNATION- The Secretary shall designate not more than 8 cur
rent or former military airports for participation in the grant program establis
hed under subsection (d)(5) and this subsection. At least 2 such airports shall
be designated within 6 months after the date of the enactment of this subsection
and the remaining airports shall be designated for participation no later than
September 30, 1992.
`(2) SURVEY- The Secretary shall conduct a survey of current and fo
rmer military airports to identify which ones have the greatest potential to imp
rove the capacity of the national air transportation system. The survey shall al
so identify the capital development needs of such airports in order to make them
part of the national air transportation system and shall identify which capital
development needs are eligible for grants under section 505. The survey shall b
e completed by September 30, 1991.
`(3) LIMITATION- In selecting airports for participation in the pro
gram established under subsection (d)(5) and this subsection and in conducting t
he survey under paragraph (2), the Secretary shall consider only those current o
r former military airports whose conversion in whole or in part to civilian comm
ercial or reliever airport as part of the national air transportation system wou
ld enhance airport and air traffic control system capacity in major metropolitan
areas and reduce current and projected flight delays.
`(4) PERIOD OF ELIGIBILITY- An airport designated by the Secretary
under this subsection shall remain eligible to participate in the program under
subsection (d)(5) and this subsection for the 5 fiscal years following such desi
gnation. An airport that does not attain a level of enplaned passengers during s
uch 5 fiscal year period which qualifies it as a small hub airport as defined as
of January 1, 1990, or reliever airport may be redesignated by the Secretary fo
r participation in the program for such additional fiscal years as may be determ
ined by the Secretary.
`(5) ADDITIONAL FUNDING- Notwithstanding the provisions of section
513(b), not to exceed $5,000,000 per airport of the sums to be distributed at th
e discretion of the Secretary under section 507(c) for any fiscal year may be us
ed by the sponsor of a current or former military airport designated by the Secr
etary under this subsection for construction, improvement, or repair of terminal
building facilities, including terminal gates used by aircraft for enplaning an
d deplaning revenue passengers. Under no circumstances shall any gates construct
ed, improved, or repaired with Federal funding under this paragraph be subject t
o long-term leases for periods exceeding 10 years or majority in interest clause
s.'.
SEC. 9110. PASSENGER FACILITY CHARGES.
Section 1113 of the Federal Aviation Act of 1958 (49 U.S.C. App. 1513)
is amended--
(1) in subsection (a) by inserting `except as provided in subsectio
n (e) and' before `except that'; and
(2) by adding at the end the following new subsection:
`(e) Authority for Imposition of Passenger Facility Charges-
`(1) IN GENERAL- Subject to the provisions of this subsection, the
Secretary may grant a public agency which controls a commercial service airport
authority to impose a fee of $1.00, $2.00, or $3.00 for each paying passenger of
an air carrier enplaned at such airport to finance eligible airport-related pro
jects to be carried out in connection with such airport or any other airport whi
ch such agency controls. For purposes of this subsection, financing an eligible
airport-related project includes making payments for debt service on bonds and o
ther indebtedness incurred to carry out such project.
`(2) USE OF REVENUES AND RELATIONSHIP BETWEEN FEES AND REVENUES- Th
e Secretary may grant a public agency which controls a commercial service airpor
t authority to impose a fee under this subsection to finance specific projects o
nly if the Secretary finds, on the basis of an application submitted for such au
thority--
`(A) that the amount and duration of the proposed fee will resu
lt in revenues (including interest and other returns on such revenues) which do
not exceed amounts necessary to finance the specific projects; and
`(B) that each of the specific projects is an eligible airport-
related project which will--
`(i) preserve or enhance capacity, safety, or security of t
he national air transportation system,
`(ii) reduce noise resulting from an airport which is part
of such system, or
`(iii) furnish opportunities for enhanced competition betwe
en or among air carriers.
`(3) LIMITATION REGARDING PASSENGERS OF AIR CARRIERS RECEIVING ESSE
NTIAL AIR SERVICE COMPENSATION- If a passenger of an air carrier is being provid
ed air service to an eligible point under section 419 for which compensation is
being paid under such section, a public agency which controls any other airport
may not impose a fee pursuant to this subsection for enplanement of such passeng
er with respect to such air service.
`(4) LIMITATION REGARDING OBLIGATIONS- No fee may be imposed pursua
nt to this subsection for a project which is not approved by the Secretary under
this subsection on or before September 30, 1992--
`(A) if, during fiscal years 1991 and 1992, the amount availabl
e for obligation, in the aggregate, under section 505 of Airport and Airway Impr
ovement Act of 1982 is less than $3,700,000,000; or
`(B)(i) if, during fiscal year 1991, the amount available for o
bligation, in the aggregate, under section 419 is less than $26,600,000; or
`(ii) if, during fiscal year 1992, the amount available for obl
igation, in the aggregate, under section 419 is less than $38,600,000.
`(5) TWO ENPLANEMENTS PER TRIP LIMITATION- Enplaned passengers on w
hom a fee may be imposed by a public agency pursuant to this subsection include
passengers of air carriers originating or connecting at the commercial service a
irport which the agency controls. A fee may not be collected pursuant to this su
bsection from a passenger with respect to any enplanement of such passenger, on
a one-way trip and on a trip in each direction of a round trip, after the second
enplanement for which a fee has been collected pursuant to this subsection from
such passenger.
`(6) TREATMENT OF REVENUES- Revenues derived from collection of a f
ee by a public agency pursuant to this subsection shall not be treated as airpor
t revenues for the purposes of any contract between such agency and an air carri
er.
`(7) EXCLUSIVITY OF AUTHORITY- No State or political subdivision or
agency thereof which is not a public agency controlling a commercial service ai
rport shall prohibit, limit, or regulate the imposition of fees by the public ag
ency pursuant to this subsection, collection of such fees, or use of revenues de
rived therefrom. No contract between an air carrier and a public agency which co
ntrols a commercial service airport entered into before, on, or after the date o
f the enactment of this subsection shall affect the authority of the public agen
cy to impose fees pursuant to this subsection and to use the revenues derived fr
om such fees in accordance with this subsection.
`(8) NONEXCLUSIVITY OF CONTRACTUAL AGREEMENTS- No project carried o
ut through the use of a fee collected pursuant to this subsection may be subject
to an exclusive long-term lease or use agreement of an air carrier, as defined
by the Secretary by regulation. Any lease or use agreement of an air carrier wit
h respect to a facility con