Statements on Introduced Bills and Joint Resolutions
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - March 09, 2005)
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By Ms. COLLINS (for herself and Mr. FEINGOLD):
S. 577. A bill to promote health care coverage for individuals participating in legal recreational activities or legal transportation activities; to the Committee on Health, Education, Labor, and Pensions.
Ms. COLLINS. Mr. President, I am pleased to join with my colleague from Wisconsin, Senator FEINGOLD, in introducing legislation to prohibit health insurers from denying benefits to plan participants if they are injured while engaging in legal recreational activities like skiing, snowmobiling, or horseback riding.
Among the many rules that were issued at the end of the Clinton Administration was one that was intended to ensure non-discrimination in health coverage in the group market. This rule was issued jointly on January 8, 2001, by the Department of Labor, the Internal Revenue Service and the Health Care Financing Administration--now the Centers for Medicare and Medicaid Services--in accordance with the Health Insurance Portability and Accountability Act (HIPAA) of 1996.
While I was pleased that the rule prohibits health plans and issuers from denying coverage to individuals who engage in certain types of recreational activities, such as skiing, horseback riding, snowmobiling or motorcycling, I am extremely concerned that it would allow insurers to deny health benefits for an otherwise covered injury that results from participation in these activities.
The rule states that: ``While a person cannot be excluded from a plan for engaging in certain recreational activities, benefits for a particular injury can, in some cases, be excluded based on the source of the injury.'' A plan could, for example, include a general exclusion for injuries sustained while doing a specified list of recreational activities, even though treatment for those injuries--a broken arm for instance--would have been covered under the plan if the individual had tripped and fallen.
Because of this loophole, an individual who was injured while skiing or running could be denied health care coverage, while someone who is injured while drinking and driving a car would be protected.
This clearly is contrary to Congressional intent. One of the purposes of HIPAA was to prohibit plans and issuers from establishing eligibility rules for health coverage based on certain health-related factors, including evidence of insurability. To underscore that point, the conference report language stated that ``the inclusion of evidence of insurability in the definition of health status is intended to ensure, among other things, that individuals are not excluded from health care coverage due to their participation in activities such as motorcycling, snowmobiling, all-terrain vehicle riding, horseback riding, skiing and other similar activities.'' The conference report also states that ``this provision is meant to prohibit insurers or employers from excluding employees in a group from coverage or charging them higher premiums based on their health status and other related factors that could lead to higher health costs.''
Millions of Americans participate in these legal and common recreational activities which, if practiced with appropriate precautions, do not significantly increase the likelihood of serious injury. Moreover, in enacting HIPAA, Congress simply did not intend that people would be allowed to purchase health insurance only to find out, after the fact, that they have no coverage for an injury resulting from a common recreational activity. If this rule is allowed to stand, millions of Americans will be forced to forgo recreational activities that they currently enjoy lest they have an accident and find out that they are not covered for needed care resulting from that accident.
The legislation that we are introducing today will clarify that individuals participating in activities routinely enjoyed by millions of Americans cannot be denied access to health care coverage or health benefits as a result of their activities. The bill should not be controversial. In fact, it passed the Senate by unanimous consent last November. Unfortunately, however, the House did not have time to act before the end of the Congress.
I am therefore hopeful that we will be able to move quickly on this legislation this year, and I urge all of my colleagues to join us as cosponsors.
Mr. LAUTENBERG. Mr. President, we have the benefit of many resources that provide us with a wealth of information: our dedicated staffs, the agencies of the Federal Government, and the many interested citizens and groups who follow issues.
We rely every day on the information we get from all these sources. But we also rely on plain old common sense. I rise today to introduce a bill that is based on common sense.
The premise is this: if we think somebody is a terrorist or has ties to terrorism, and that person purchases a deadly weapon, we need to know about it and keep track of it.
The bill I am introducing is called the ``Terrorist Apprehension Record Retention (TARR) Act.'' I am introducing it in response to a report that Senator Biden and I requested from the Government Accountability Office (GAO).
The report examined the practices of the National Instant Criminal Background Checks system (NICS) in conducting background checks of people who are on the Federal terrorist watch list and who try to purchase firearms.
The GAO found that from February 3 through June 30 of last year--a period of just five months--a total of 44 known or suspected terrorists attempted to purchase firearms. The GAO Report is available at http://www.gao.gov/new.items/d05127.pdf.
In 35 of these cases, the FBI authorized the transactions to proceed because its field agents were unable to find any disqualifying information, such as felony convictions or illegal immigrant status, within the federally prescribed three business days.
FBI officials told GAO investigators that from June through October 2004, the FBI's NICS handled an additional 14 transactions involving known or suspected terrorists. Of these 14 transactions, the FBI allowed 12 to proceed and denied 2 based on prohibiting information.
These people who are on the terrorist watch list are not even allowed to board a commercial airliner. Yet most of them were allowed to purchase firearms.
Some would say that defies common sense--but it gets worse.
After most of the people with suspected terrorist connections were allowed to purchase these deadly weapons, the FBI was forced to destroy the records of the transactions within 24 hours after the FBI had approved the sale.
These records were destroyed pursuant to the ``Tiahrt Amendment'' which was implemented last July.
The GAO also found that Department of Justice procedures prohibit the NICS from sharing information about gun sales to suspected terrorists with counterterrorism officials.
This restriction of information-sharing is based on the belief at DOJ that information gathered by NICS should not be used for law enforcement purposes or to fight the war against terror. This is despite the fact that FBI counterterrorism officials said that it would help them fight the war on terror if they were to routinely receive all available personal identifying information and other details from valid-match background checks of known or suspected terrorists.
So, not only are people suspected of having links to terrorism allowed to purchase deadly weapons, but then we don't even tell our counterterrorism agents about it--and we destroy the records!
This doesn't seem like common sense to me.
In fact, it seems like a policy that not only allows terrorists to acquire weapons, but then helps them cover their tracks.
In light of the findings in this report, Senators Corzine, Schumer, Clinton, Feinstein, Mikulski, Reed and Kennedy are joining me in introducing the TARR Act, which would do two very important things.
First, the bill would require the Federal Government, specifically the NICS and FBI, to maintain for 10 years all records related to a NICS transaction involving a valid match to the VGTOF terrorist records--a suspected or known terrorist.
It is outrageous that one unit of the FBI--NICS--has information that could help us win the war against terrorism, but that information is deleted.
Second, the TARR Act would require all information related to the transactions involving a valid match to the VGTOF terrorist records must be shared with all appropriate Federal and State counterterrorism officials. Both FBI counterterrorism agents and State counterterrorism agencies should have access to this potentially valuable information. I encourage my colleagues to support this common sense legislation.
I ask unanimous consent that the text of the bill be printed in the RECORD. I also ask unanimous consent that an article from the March 8, 2005 edition of the New York Times be printed in the Record.
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[From the New York Times, March 8, 2005]
Terror Suspects Buying Firearms, Report Finds
(By Eric Lichtblau)
WASHINGTON, March 7.--Dozens of terror suspects on federal watch lists were allowed to buy firearms legally in the United States last year, according to a Congressional investigation that points up major vulnerabilities in federal gun laws.
People suspected of being members of a terrorist group are not automatically barred from legally buying a gun, and the investigation, conducted by the Government Accountability Office, indicated that people with clear links to terrorist groups had regularly taken advantage of this gap.
Since the Sept. 11 terrorist attacks, law enforcement officials and gun control groups have voiced increasing concern about the prospect of a terrorist walking into a gun shop, legally buying an assault rifle or other type of weapon and using it in an attack.
The G.A.O. study offers the first full-scale examination of the possible dangers posed by gaps in the law, Congressional officials said, and it concludes that the Federal Bureau of Investigation ``could better manage'' its gun-buying records in matching them against lists of suspected terrorists.
F.B.I. officials maintain that they are hamstrung by laws and policies restricting the use of gun-buying records because of concerns over the privacy rights of gun owners.
At least 44 times from February 2004 to June, people whom the F.B.I. regards as known or suspected members of terrorist groups sought permission to buy or carry a gun, the investigation found.
In all but nine cases, the F.B.I. or state authorities who handled the requests allowed the applications to proceed because a check of the would-be buyer found no automatic disqualification like being a felon, an illegal immigrant or someone deemed ``mentally defective,'' the report found.
In the four months after the formal study ended, the authorities received an additional 14 gun applications from terror suspects, and all but 2 of those were cleared to proceed, the investigation found. In all, officials approved 47 of 58 gun applications from terror suspects over a nine-month period last year, it found.
The gun buyers came up as positive matches on a classified internal F.B.I. watch list that includes thousands of terrorist suspects, many of whom are being monitored, trailed or sought for questioning as part of terrorism investigations into Islamic-based, militia-style and other groups, official said. G.A.O. investigators were not given access to the identities of the gun buyers because of those investigations.
The report is to be released on Tuesday, and an advance copy was provided to The New York Times.
Senator Frank R. Lautenberg, Democrat of New Jersey, who requested the study, plans to introduce legislation to address the problem in part by requiring federal officials to keep records of gun purchases by terror suspects for a minimum of 10 years. Such records must now be destroyed within 24 hours as a result of a change ordered by Congress last year. Mr. Lautenberg maintains that the new policy has hindered terrorism investigations by eliminating the paper trail on gun purchases.
``Destroying these records in 24 hours is senseless and will only help terrorists cover their tracks,'' Mr. Lautenberg said Monday. ``It's an absurd policy.''
He blamed what he called the Bush administration's ``twisted allegiances'' to the National Rifle Association for the situation.
The N.R.A. and gun rights supporters in Congress have fought--successfully, for the most part--to limit the use of the F.B.I.'s national gun-buying database as a tool for law enforcement investigators, saying the database would amount to an illegal registry of gun owners nationwide.
The legal debate over how gun records are used became particularly contentious months after the Sept. 11 attacks, when it was disclosed that the Justice Department and John Ashcroft, then the attorney general, had blocked the F.B.I. from using the gun-buying records to match against some 1,200 suspects who were detained as part of the Sept. 11 investigation. Mr. Ashcroft maintained that using the records in a criminal investigation would violate the federal law that created the system for instant background gun checks, but Justice Department lawyers who reviewed the issue said they saw no such prohibition.
In response to the report, Mr. Lautenberg also plans to ask Attorney General Alberto R. Gonzales to assess whether people listed on the F.B.I.'s terror watch list should be automatically barred from buying a gun. Such a policy would require a change in federal law.
F.B.I. officials acknowledge shortcomings in the current approach to using gun-buying records in terror cases, but they say they are somewhat constrained by gun laws as established by Congress and interpreted by the Justice Department.
``We're in a tough position,'' said an F.B.I. official who spoke on condition of anonymity because the report has not been formally released. ``Obviously, we want to keep guns out of the hands of terrorists, but we also have to be mindful of privacy and civil rights concerns, and we can't do anything beyond what the law allows us to do.''
After initial reluctance from Mr. Ashcroft over Second Amendment concerns, the Justice Department changed its policy in February 2004 to allow the F.B.I. to do more cross-checking between gun-buying records and terrorist intelligence.
Under the new policy, millions of gun applications are run against the F.B.I.'s internal terrorist watch list, and if there is a match, bureau field agents or other counterterrorism personnel are to be contacted to determine whether they have any information about the terror suspect.
In some cases, the extra review allowed the F.B.I. to block a gun purchase by a suspected terrorist that might otherwise have proceeded because of a lag time in putting information into the database, the accountability office's report said.
In one instance last year, follow-up information provided by F.B.I. field agents revealed that someone on a terror watch list was deemed ``mentally defective,'' even though that information had not yet made its way into the gun database. In a second case, field agents disclosed that an applicant was in the country illegally. Both applications were denied.
Even so, the report concluded that the Justice Department should clarify what information could and could not be shared between gun-buying administrators and terrorism investigators. It also concluded that the F.B.I. should keep closer track of the performance of state officials who handle gun background checks in lieu of the F.B.I.
``Given that these background checks involve known or suspected terrorists who could pose homeland security risks,'' the report said, ``more frequent F.B.I. oversight or centralized management would help ensure that suspected terrorists who have disqualifying factors do not obtain firearms in violation of the law.''
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