Pandemic Flu and Medical Biodefense Countermeasure Liability Limitation

Edward C. Liu
Legislative Attorney

Division C of P.L. 109-148 (2005), 42 U.S.C. §§ 247d-6d, 247d-6e, also known as the Public Readiness and Emergency Preparedness Act (PREP Act), limits liability with respect to pandemic flu and other public health countermeasures. Specifically, upon a declaration by the Secretary of Health and Human Services of a public health emergency or the credible risk of such emergency, Division C would, with respect to a "covered countermeasure," eliminate liability, with one exception, for the United States, and for manufacturers, distributors, program planners, persons who prescribe, administer or dispense the countermeasure, and employees of any of the above. The exception to immunity from liability is that a defendant who engaged in willful misconduct would be subject to liability under a new federal cause of action, though not under state tort law, if death or serious injury results. Division C's limitation on liability is a more extensive restriction on victims' ability to recover than exists in most federal tort reform statutes. However, victims could, in lieu of suing, accept payment under a new "Covered Countermeasure Process Fund," if Congress appropriates money for this fund. 

The first PREP Act declaration was issued on January 26, 2007, to limit liability for the administration of the H5N1 influenza vaccine. Since then, declarations have been issued covering countermeasures against other strains of influenza (including H1N1), anthrax, botulism, small pox, and acute radiation syndrome. .


Date of Report: February 12, 2010
Number of Pages: 8
Order Number: RS22327
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Health Care for Dependents and Survivors of Veterans

Sidath Viranga Panangala
Specialist in Veterans Policy

The Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) is primarily a fee-for-service program that provides reimbursement for most medical care for certain eligible dependents and survivors of veterans rated permanently and totally disabled from a service-connected condition. This report provides an overview of CHAMPVA and includes a series of questions and answers about the program.  


Date of Report: February 18, 2010
Number of Pages: 10
Order Number: RS22483
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Social Security Survivors Benefits

Scott Szymendera
Analyst in Disability Policy

Social Security is formally known as the Old-Age, Survivors, and Disability Insurance (OASDI) program. This report focuses on the Survivors Insurance component of Social Security. When workers die, their spouses, former spouses, and dependents may qualify for Social Security survivors benefits. This report describes how a person becomes covered by Survivors Insurance. It outlines the types and amounts of benefits available to survivors, eligibility for those benefits, and the benefit application process. It provides statistics on survivor beneficiaries and a legislative history of Survivors Insurance.  

The Old-Age, Survivors, and Disability Insurance (OASDI) program, better known as Social Security, is administered by the Social Security Administration (SSA). The Survivors Insurance component of OASDI is similar to life insurance. When a person insured by Social Security dies, his or her family may qualify for survivors benefits. SSA's actuaries estimate that the net present value of Survivors Insurance for a young family with two children and average earnings is equivalent to a life insurance policy with a face value of $476,000.1 

At the end of 2009, there were 6.4 million survivor beneficiaries, representing about one in eight OASDI beneficiaries.2 Each month in 2009, over $6.3 billion was paid in survivors benefits. Survivor beneficiaries are almost all either women or children: 30% of survivor beneficiaries receive child's benefits, and 99% of those receiving other types of benefits are women..


Date of Report: February 18, 2010
Number of Pages: 9
Order Number: RS22294
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Americans with Disabilities Act (ADA) Requirements Concerning the Provision of Interpreters by Hospitals and Doctors

Nancy Lee Jones
Legislative Attorney

The Americans with Disabilities Act (ADA) is a broad civil rights act prohibiting discrimination against individuals with disabilities. Title III of the Americans with Disabilities Act (ADA) prohibits places of public accommodation, including hospitals and doctors' offices, from discriminating against individuals with disabilities. The Department of Justice (DOJ) promulgated regulations under Title III requiring the use of auxiliary aids, unless they would fundamentally alter the nature of the service or result in an undue burden. Auxiliary aids could include qualified interpreters as well as note takers or computer-aided transcription services. Attempting to address the myriad of disabilities and public accommodations, the ADA purposely adopted a flexible standard concerning when its nondiscrimination requirements are met. The law and DOJ regulations, then, do not explicitly state when hospitals or doctors are required to provide interpreter services to patients with disabilities and, as is illustrated by the judicial decisions in the area, this issue is largely fact dependent. .


Date of Report: February 3, 2010
Number of Pages: 10
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Teen Pregnancy Prevention: Background andProposals in the 111th Congress

Carmen Solomon-Fears
Specialist in Social Policy

The birth rate for teenagers in the United States increased in 2006 and 2007 after a steady decline since 1991. In 2007, teen births accounted for 10.5% of all U.S. births and 22.6% of all nonmarital births. The birth rate for U.S. teens remains higher than the teenage birth rate of most industrialized nations. In recognition of the negative, long-term consequences associated with teenage pregnancy and births, teen pregnancy prevention is a major goal of this nation. 

President Obama's FY2010 budget supports state, community-based, and faith-based efforts to reduce teen pregnancy using models that have been rigorously evaluated. The Administration's proposed discretionary pregnancy prevention initiative would fund models that stress the importance of abstinence while providing medically-accurate and age-appropriate information to youth who have already become sexually active. The Obama Administration's FY2010 budget would not provide any funding in FY2010 for the Title V Abstinence Education Block Grant to states (which was a mandatory program) or the Community-Based Abstinence Education (CBAE) program (a discretionary program); nor would it continue to provide funding in FY2010 for abstinence-only demonstration grants through the Adolescent Family Life (AFL) program. 

P.L. 111-117, the Consolidated Appropriations for FY2010, includes a new discretionary teenage pregnancy prevention program, identical to the one proposed in the President's FY2010 budget, that would provide grants and contracts, on a competitive basis, to public and private entities to fund "medically accurate and age appropriate" programs that reduce teen pregnancy. Of the $110 million provided, $75 million would be for replicating programs that are proven effective through rigorous evaluation as reducing teenage pregnancy, behavioral factors underlying teen pregnancy, and related risk factors; while $25 million would be for research and demonstration grants. P.L. 111-117 also provides a separate $4.5 million (within the Public Health Service Act program evaluation funding) to carry out evaluations of teenage pregnancy prevention approaches. 

This report provides a brief discussion of the debate on comprehensive sex education and abstinence education, highlights evaluations of both types of programs, describes youth programs that address teen pregnancy, and examines the new teen pregnancy prevention initiative included in the Obama Administration's FY2010 and FY2011 budgets. It also identifies teen pregnancy prevention legislation pending before the 111th Congress (H.R. 463/S. 21, H.R. 1551/S. 611, H.R. 3288, H.R. 3293, H.R. 3312, H.R. 3590, and H.R. 3962). This report will be updated to reflect legislative activity that seeks to reduce or prevent pregnancy among teenagers. .


Date of Report: February 4, 2010
Number of Pages: 18
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The Tax Exclusion for Employer-Provided Health Insurance: Policy Issues Regarding the Repeal Debate

Janemarie Mulvey
Specialist in Aging Policy

Employer-provided health insurance is excluded from the determination of employees' federal income taxes, resulting in significant tax savings for many workers. Comparable exclusions apply to federal employment taxes and to state income and employment taxes. Because employment based health insurance covers three-fifths of the population under the age of 65, the exclusions also result in considerable revenue loss to the government. Ending them could raise several hundred billion dollars a year, depending on exactly what is repealed and how workers and employers adjust. Some see this revenue as a source for financing health care reform without explicitly raising taxes. 

The federal income tax exclusion—the focus of this report—is criticized for several reasons. Because it reduces the after-tax cost of insurance in ways that are not transparent, it likely results in people with insurance obtaining more coverage than they otherwise would. Not being explicitly capped or limited, it does little to restrict the generosity of the insurance or annual premium increases. These attributes contribute to what some economists argue is a welfare (or efficiency) loss from excess health insurance for those with coverage and also contribute to rising health care costs and spending. In addition, the income tax exclusion often is criticized because it gives greater tax savings to higher income individuals and families, an outcome that strikes many observers as wasteful and inequitable. 

These arguments about the exclusion merit careful consideration as Congress is starting to debate broad health care reform for the first time in 15 years. However, the arguments involve complex issues, and other points and perspectives might be taken into account. The welfare loss may be difficult to gauge considering how consumers react to higher cost-sharing. Determining alternative tax benefits to replace the exclusion that would not adversely affect people with high costs could be challenging. The larger tax savings to higher-income people might not be an inequitable subsidy but only a consequence of the proper treatment of losses under a progressive income tax. 

The income tax exclusion has been in the tax code more than 50 years, and its repeal could have unintended consequences. For example, unless exceptions were made, repeal would also terminate the exclusion for employer-paid disability insurance, health care flexible spending accounts, and other benefits some consider useful. 

The exclusion and regulatory decisions in the 1940s sometimes are said to be the reason why employer-paid coverage is the predominant form of private health insurance in the United States. There is something to this argument, but there are other reasons why employment-based insurance arose and why it remains attractive. These reasons make it difficult to predict the effect of ending the exclusion on the future of employment-based insurance, a major policy issue.


Date of Report: February 2, 2010
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Stem Cell Research: Federal Research Funding and Oversight

Judith A. Johnson
Specialist in Biomedical Policy

Erin D. Williams
Specialist in Public Health and Bioethics

Embryonic stem cells have the ability to develop into virtually any cell in the body, and may have the potential to treat injuries as well as illnesses, such as diabetes and Parkinson's disease. Currently, most human embryonic stem cell lines used in research are derived from embryos produced via in vitro fertilization (IVF). Because the process of removing these cells destroys the embryo, some individuals believe the derivation of stem cells from human embryos is ethically unacceptable. In November 2007, research groups in Japan and the United States announced the development of embryonic stem cell-like cells, called induced pluripotent stem (iPS) cells, via the introduction of four genes into human skin cells. Those concerned about the ethical implications of deriving stem cells from human embryos argue that researchers should use iPS cells or adult stem cells (from bone marrow or umbilical cord blood). However, many scientists believe research should focus on all types of stem cells. 

On March 9, 2009, President Barack Obama signed an executive order that reversed the nearly eight-year old Bush Administration restriction on federal funding for human embryonic stem cell research. The Obama decision directed the National Institutes of Health (NIH) to issue new guidelines for the conduct of embryonic stem cell research. Draft guidelines were released on April 23, 2009, and final guidelines were issued on July 6, 2009. In December 2009, NIH created a new registry of human embryonic stem cell lines that are eligible for use in research supported by federal funds under the 2009 guidelines. As of February 1, 2010, a total of 43 stem cell lines are listed in the new registry. 

In August 2001, President George W. Bush had announced that for the first time, federal funds would be used to support research on human embryonic stem cells, but funding would be limited to "existing stem cell lines." NIH established a registry of 78 human embryonic stem cell lines eligible for use in federally funded research, but only 21 cell lines were available due to technical reasons and other limitations. Over time scientists became increasingly concerned about the quality and longevity of these 21 stem cell lines. These scientists believe that research advancement requires access to new human embryonic stem cell lines. 

In the 111th Congress, seven bills have been introduced on the topic of stem cell research but have received no further action. H.R. 873 (DeGette), the Stem Cell Research Enhancement Act of 2009, was introduced on February 4, 2009. The text of H.R. 873 is identical to legislation introduced in the 110th Congress, H.R. 3 (DeGette), and the 109th Congress, H.R. 810 (Castle). The bill would allow federal support of research that utilizes human embryonic stem cells regardless of the date on which the stem cells were derived from a human embryo. Stem cell lines must meet ethical guidelines established by the NIH. H.R. 872 (DeGette), the Stem Cell Research Improvement Act of 2009, was also introduced on February 4, 2009, and is similar to H.R. 873 but would require updates of the ethical guidelines every three years. S. 487 (Harkin), introduced on February 26, 2009, is the same as H.R. 873, except it has an additional section supporting research on alternative human pluripotent stem cells. It is identical to a bill introduced in the 110th Congress, S. 5 (Reid). Other bills introduced in the 111th Congress include H.R. 877, H.R. 1654, H.R. 2107, and S. 99. 

During the 110th Congress, the Senate passed legislation (S. 5) in April 2007 that would have allowed federal support of research that utilizes human embryonic stem cells regardless of the date on which the stem cells were derived from a human embryo. The bill would have also provided support for research on alternatives, such as iPS cells. The House passed the bill in June 2007, and President George W. Bush vetoed it on June 20, 2007. (The 109th Congress passed a similar bill, which also was vetoed by President George W. Bush, the first veto of his presidency; an attempt to override the veto in the House failed.) On the related issue of human cloning, in June 2007 the House failed to pass a bill (H.R. 2560) that would have imposed penalties on anyone who cloned a human embryo and implanted it in a uterus.


Date of Report: February 1, 2010
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Genetic Testing: Scientific Background for Policymakers

Amanda K. Sarata
Analyst in Health Policy and Genetics

Congress has considered, at various points in time, numerous pieces of legislation that relate to genetic and genomic technology and testing. These include bills addressing genetic discrimination in health insurance and employment, personalized medicine, the patenting of genetic material, and the quality of clinical laboratory tests, including genetic tests. The focus on these issues signals the growing importance of the public policy issues surrounding the clinical and public health implications of new genetic technology. As genetic technologies proliferate and are increasingly used to guide clinical treatment, these public policy issues are likely to continue to garner considerable attention. Understanding the basic scientific concepts underlying genetics and genetic testing may help facilitate the development of more effective public policy in this area. 

Most diseases have a genetic component. Some diseases such as Huntington's Disease are caused by a specific gene. Other diseases, such as heart disease and cancer, are caused by a complex combination of genetic and environmental factors. For this reason, the public health burden of genetic disease is substantial, as is its clinical significance. Experts note that society has recently entered a transition period in which specific genetic knowledge is becoming critical to the delivery of effective health care for everyone. Therefore, the value of and role for genetic testing in clinical medicine is likely to increase significantly in the future.


Date of Report: January 29, 2010
Number of Pages: 13
Order Number: RL33832
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Tax Benefits for Health Insurance and Expenses: Overview of Current Law and Legislation

Janemarie Mulvey
Specialist in Aging Policy

How tax policy affects health insurance and health care spending is a perennial subject of discussion in Washington. The issue is prompted by the size of the tax benefits, by their effect on the cost and allocation of health care resources, and by interest in comprehensive tax and health care reform. Health care reform proposals currently being considered could make important tax changes. 

Current law contains significant tax benefits for health insurance and expenses. By far the largest is the exclusion for employer-paid coverage, which employees may omit from their individual income taxes. The exclusion also applies to employment taxes and to health benefits in cafeteria plans. (The exclusion should be distinguished from the deduction employers may take for the payments they make and other costs they incur.) Some see ending or capping the exclusion as a way to raise revenue that might be used to pay for health care reform. Other important tax benefits include the following: 

• Self-employed taxpayers may deduct 100% of their health insurance, even if they do not itemize deductions and taxpayers who itemize may deduct insurance payments and other unreimbursed medical expenses to the extent they exceed 7.5% of adjusted gross income; 

• Some workers eligible for Trade Adjustment Assistance or receiving a pension paid by the Pension Benefit Guarantee Corporation can receive the Health Coverage Tax Credit (HCTC) to purchase certain types of insurance; 

• Four tax-advantaged accounts are available to help taxpayers pay their health care expenses: Flexible Spending Accounts, Health Reimbursement Accounts, Health Savings Accounts, and Medical Savings Accounts; 

• Voluntary Employees' Beneficiary Association plans (VEBAs) are vehicles for prefunding retiree health benefits on a tax-advantaged basis for certain groups of workers, particularly unionized workers; 

• Coverage under Medicare, Medicaid, CHIP, and military and veterans health care programs is not considered taxable income; and 

• A temporary COBRA premium subsidy was included in the American Recovery and Reinvestment Act of 2009 and later expanded in the 2010 Department of Defense Appropriations Act. 

By lowering the after-tax cost of insurance, these tax benefits generally help extend coverage to more people; they also lead some people to obtain more coverage than they otherwise would. The incentives influence how coverage is acquired: the uncapped exclusion for employer-paid insurance is partly responsible for the predominance of employment-based insurance in the United States. In addition, the tax benefits increase the demand for health care by enabling insured people to obtain services at discounted prices; this in turn contributes to rising health care costs. Because many people would likely obtain insurance without tax benefits, they can be an inefficient use of public dollars. When insurance is viewed as a form of personal consumption, most tax benefits appear to be inequitable because taxpayers' savings depend on marginal tax rates. When viewed as spreading catastrophic economic risk over multiple years, however, basing those savings on marginal rates might be justified as the proper treatment for losses under a progressive tax system. .


Date of Report: February 3, 2010
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Older Americans Act: Funding

Angela Napili
Information Research Specialist

Kirsten J. Colello
Specialist in Health and Aging Policy

The Older Americans Act (OAA) is the major federal vehicle for the delivery of social and nutrition services for older persons. These include supportive services, congregate nutrition services (meals served at group sites such as senior centers, community centers, schools, churches, or senior housing complexes), home-delivered nutrition services, family caregiver support, community service employment, the long-term care ombudsman program, and services to prevent the abuse, neglect and exploitation of older persons. The OAA also supports grants to older Native Americans and research, training, and demonstration activities. Funding for most OAA programs is provided through appropriations legislation for the Departments of Labor, Health and Human Services, Education, and Related Agencies (Labor-HHS-Education). 

The FY2010 Consolidated Appropriations Act (P.L. 111-117), signed into law December 16, 2009, provides $2.328 billion for Older Americans Act programs in FY2010. 

The FY2009 Omnibus Appropriations Act (P.L. 111-8) provided $2.052 billion for Older Americans Act programs for FY2009. The American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5) provided $220.0 million in additional FY2009 funding ($100.0 million for nutrition programs and $120.0 million for the Title V Senior Community Service Employment Program). Total FY2009 Older Americans Act funding was $2.272 billion. 

The FY2010 funding level for OAA programs is a 13% increase over the funding provided by the FY2009 Omnibus Appropriations Act, and a 2% increase over total FY2009 funding (including both the Omnibus and ARRA). The Title V Community Service Employment for Older Americans Program received the bulk of this increased funding. Congress appropriated $825.4 million to Title V Community Service Employment for Older Americans in FY2010, compared with $691.9 million in FY2009 funding ($571.9 million from the FY2009 Omnibus, and $120.0 million from ARRA). 

In February 2010, the President's FY2011 Budget and a new report of the White House Task Force on the Middle Class are expected to be released. Full details are not yet available, but an early press release indicates that the Middle Class Task Force report will recommend a "Caregiver Initiative" that would increase funds to federal caregiver support programs. 

This report provides details of FY2010 funding for OAA as well as FY2010 funding for programs such as the Alzheimer's Disease Supportive Services Program (ADSSP) and Lifespan Respite Care Program which are administered by the Administration on Aging (AOA), but authorized under the Public Health Service Act (PHSA). Finally, it provides information about legislation that has been considered in the 111th Congress with respect to health reform proposals that have been passed by the House (H.R. 3962) and the Senate (H.R. 3590, as amended). Provisions in these bills would increase authorizations or funding to certain OAA programs, such as the National Family Caregiver Support Program (NFCSP) and the Aging and Disability Resource Center (ADRC) initiative. .


Date of Report: January 27, 2010
Number of Pages: 25
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Authorized Generic Pharmaceuticals: Effects on Innovation

John R. Thomas
Visiting Scholar

The practice of "authorized generics" has recently been the subject of considerable attention by the pharmaceutical industry, regulators, and members of Congress alike. An "authorized generic" (sometimes termed a "branded," "flanking," or "pseudo" generic) is a pharmaceutical that is marketed by or on behalf of a brand-name drug company, but is sold under a generic name. Although the availability of an additional competitor in the generic drug market would appear to be favorable to consumers, authorized generics have nonetheless proven controversial. Some observers believe that authorized generics potentially discourage independent generic firms both from challenging drug patents and from selling their own products. 

These perceived disincentives result from the provisions of the Drug Price Competition and Patent Term Restoration Act of 1984. Better known as the Hatch-Waxman Act, this legislation provides independent generic firms with a reward for challenging patents held by brand-name firms. That "bounty" consists of a 180-day generic drug exclusivity period awarded to the first patent challenger. During the 180-day period, the brand-name company and the first generic applicant are the only firms that receive authorization to sell that pharmaceutical. At the close of this period, other independent generic competitors may obtain marketing approval and enter the market, ordinarily resulting in lower prices for generic medicines. 

Some commentators view the 180-day exclusivity period as a crucial incentive for generic firms to challenge patents held by brand-name firms. Under this view, the launch of an authorized generic during the 180-day exclusivity period makes the recovery of litigation expenses more difficult. In turn, the possibility that a brand-name firm will sell an authorized generic during the 180-day exclusivity period may decrease the incentives of generic firms to challenge patents in the first instance. 

Other observers believe that authorized generics benefit consumers by increasing competition in the generic market. Because the authorized generic is manufactured by the brand-name firm and identical to its own product, consumers may be encouraged to switch to the lower-cost authorized generic alternative. Authorized generics may also facilitate the settlement of patent litigation between brand-name and independent generic firms. As an historical matter, certain of these settlement agreements have allowed authorized generics to enter the market, and therefore promoted competition, prior to the expiration of the relevant patent term. 

Recent judicial opinions have upheld FDA practices allowing authorized generics. If authorized generic practice is deemed appropriate, then no action need be taken. Legislation introduced in the 111th Congress, H.R. 573, presents another option. Under H.R. 573, authorized generics may not be sold during the term of the 180-day generic exclusivity. 

This report will be updated as needed. .


Date of Report: January 29, 2010
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Abortion: Legislative Response

Jon O. Shimabukuro
Legislative Attorney

In 1973, the U.S. Supreme Court concluded in Roe v. Wade that the U.S. Constitution protects a woman's decision to terminate her pregnancy. In Doe v. Bolton, a companion decision, the Court found that a state may not unduly burden the exercise of that fundamental right with regulations that prohibit or substantially limit access to the means of effectuating the decision to have an abortion. Rather than settle the issue, the Court's rulings since Roe and Doe have continued to generate debate and have precipitated a variety of governmental actions at the national, state, and local levels designed either to nullify the rulings or limit their effect. These governmental regulations have, in turn, spawned further litigation in which resulting judicial refinements in the law have been no more successful in dampening the controversy. 

In recent years, the rights enumerated in Roe have been redefined by decisions such as Webster v. Reproductive Health Services, which gave greater leeway to the States to restrict abortion, and Rust v. Sullivan, which narrowed the scope of permissible abortion-related activities that are linked to federal funding. The Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which established the "undue burden" standard for determining whether abortion restrictions are permissible, gave Congress additional impetus to move on statutory responses to the abortion issue, such as the Freedom of Choice Act. 

Legislation to prohibit a specific abortion procedure, the so-called "partial-birth" abortion procedure, was passed in the 108th Congress. The Partial-Birth Abortion Ban Act appears to be one of the only examples of Congress restricting the performance of a medical procedure. Legislation that would prohibit the knowing transport of a minor across state lines for the purpose of obtaining an abortion has been introduced in numerous Congresses. 

Since Roe, Congress has attached abortion funding restrictions to various appropriations measures. The greatest focus has arguably been on restricting Medicaid abortions under the annual appropriations for the Department of Health and Human Services. This restriction is commonly referred to as the "Hyde Amendment" because of its original sponsor. Similar restrictions affect the appropriations for other federal entities, including the Department of Justice, where federal funds may not be used to perform abortions in the federal prison system, except in cases of rape or if the life of the mother would be endangered. Hyde-type amendments also have an impact in the District of Columbia, where federal funds may not be used to perform abortions except in cases of rape, incest or where the life of the mother would be endangered, and affect international organizations like the United Nations Population Fund, which receives funds through the annual Foreign Operations appropriations measure. 

The debate over abortion has also continued in the context of health reform. Legislation that attempts to reduce the number of uninsured individuals and restructure the private health insurance market includes provisions involving the coverage of abortion by health benefits plans and by a government-run health insurance option. H.R. 3962, the Affordable Health Care for America Act, was passed by the House of Representatives on November 7, 2009, by a vote of 220-215. H.R. 3590, the Patient Protection and Affordable Care Act, was passed by the Senate on December 24, 2009, by a vote of 60-39. .


Date of Report: January 28, 2010
Number of Pages: 22
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Health Care Flexible Spending Accounts

Janemarie Mulvey 
Specialist in Aging Policy

Health care Flexible Spending Accounts (FSAs) are benefit plans established by employers to reimburse employees for health care expenses such as deductibles and copayments. FSAs are usually funded by employees through salary reduction agreements, although employers are permitted to contribute as well. The contributions to and withdrawals from FSAs are tax-exempt. 

Historically, health care FSA contributions were forfeited if not used by the end of the year. However, in 2005 the Internal Revenue Service (IRS) formally determined that employers may extend the deadline for using unspent balances up to 2½ months after the end of the plan year (i.e, until March 15 for most plans). The Tax Relief and Health Care Act of 2006 (P.L. 109-432) allows individuals to make limited, one-time rollovers from balances in their health care FSAs to Health Savings Accounts. In the 110th Congress, as in previous Congresses, legislation has been introduced to permit part or all of remaining balances to be rolled over to accounts next year or to qualified retirement accounts. 

According to the Bureau of Labor Statistics National Compensation Survey, 33% of all workers in 2007 had access to a health care flexible spending account. When viewed by firm size, 51% of workers in firms with more than 100 workers had access to a health care FSA. The accounts were not as common for workers in small businesses. In establishments with fewer than 100 employees, 17% of the workers could choose to participate in an FSA. The average employee participation rate for FSAs has been very stable over the past decade. According to a 2008 Mercer Survey, 22% of employees participated in an FSA in 2008 (compared with 21% the prior year). In 2003, FSAs became available to federal employees for the first time. In September 2008, about 240,000 federal employees had health care FSAs. 

These other points might be noted about health care FSAs: 

• FSAs are limited to employees and former employees. 

• The IRS imposes no dollar limit on health care FSA contributions, but employers generally do. 

• FSAs generally can be used only for unreimbursed medical expenses that would be deductible under the Internal Revenue Code, but not for health insurance or long-term care insurance premiums. 

• Employers may impose additional restrictions. 

In the 111th Congress, both the House and Senate health care reform bills include similar provisions that affect FSAs. The House bill, H.R. 3962, was passed by the House of Representatives on November 7, 2009, and the Senate Bill, H.R. 3590, was passed by the Senate on December 24, 2009. Both bills limit the annual FSA contributions to $2,500 and modify the definition of qualified medical expenses to exclude over-the-counter prescriptions (not prescribed by a physician) as a qualified expense. This report discusses the details of these proposals as well as other legislative proposals in the 111th Congress affecting FSAs. This report will be updated for new data or as legislative activity occurs. .


Date of Report: February 1, 2010
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U.S. Global Health Assistance: Background, Priorities, and Issues for the 111thCongress

Tiaji Salaam-Blyther
Specialist in Global Health

Kellie Moss
Analyst in Global Health

U.S. funding for global health activities has grown significantly over the past decade, from $1.8 billion in FY2001 to $8.5 billion in FY2010. During this time period, Congress has significantly increased funding for responses against infectious disease outbreaks, including the 2009 influenza pandemic (H1N1), H5N1 avian influenza (avian flu), human immunodeficiency/acquired immunodeficiency syndrome (HIV/AIDS), tuberculosis (TB), and malaria. U.S. agencies and departments also supplement funds that Congress appropriates for these purposes with funds from their discretionary budgets. 

Through FY2009 Supplemental Appropriations (P.L. 111-32), Congress appropriated $100 million to the U.S. Agency for International Development (USAID) for an additional contribution to the Multilateral Global Fund to Fight AIDS, Tuberculosis and Malaria and $50 million for international pandemic preparedness and response efforts. The Act also provided $200 million for domestic and global pandemic preparedness response programs conducted by the U.S. Centers for Disease Control and Prevention (CDC), though it did not specify how the funds should be apportioned. 

President Barack Obama sent Congress a FY2010 budget request of $9.1 billion for global health initiatives. Of those funds, he proposed that $7.6 billion be funded through the Global Health and Child Survival Account (GHCS), which is funded through Foreign Operations Appropriations and supports USAID global health programs, global HIV/AIDS programs managed by the Office of the Global AIDS Coordinator (OGAC) at the Department of State and a U.S. contribution to the Global Fund to Fight AIDS, Tuberculosis, and Malaria (Global Fund). The President asked that Congress support his new Global Health Initiative that would provide $63 billion over six years "to shape a new, comprehensive global health strategy" that would focus on "broader global health challenges, including child and maternal health, family planning, and neglected tropical diseases, with cost effective intervention." He also requested $1.5 billion in emergency funds to support U.S. domestic and international responses to the 2009 influenza pandemic and more than $319 million for CDC global health programs. Through the FY2010 Consolidated Appropriations Act (P.L. 111-117), Congress provided more than $8 billion for global health activities. 

Foreign assistance reform, including global health aid, has emerged as a key issue in the 111th Congress. This report discusses some of the policy questions Congress may face as it considers proposals to improve U.S. global health aid, including defining U.S. global health aid, identifying the scope of U.S. global health spending, determining oversight and leadership roles, and coordinating global health and development programs.


Date of Report: January 29, 2010
Number of Pages: 35
Order Number: R40740
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Centers for Disease Control and Prevention Global Health Programs: FY2001-FY2010

Tiaji Salaam-Blyther
Specialist in Global Health

A number of U.S. agencies and departments implement U.S. government global health interventions. Overall, U.S. global health assistance is not always coordinated. Exceptions to this include U.S. international responses to key infectious diseases. For example, U.S. programs to address HIV/AIDS through the President's Emergency Plan for AIDS Relief (PEPFAR), malaria through the President's Malaria Initiative (PMI), and avian and pandemic influenza through the Avian Flu Task Force. Although several U.S. agencies and departments implement global health programs, this report focuses on funding for global health programs conducted by the U.S. Centers for Disease Control and Prevention (CDC), a key recipient of U.S. global health funding. 

Congress appropriates funds to CDC for its global health efforts through five main budget lines: Global HIV/AIDS, Global Immunization, Global Disease Detection, Malaria, and Other Global Health. Although Congress provides funds for some of CDC's global health efforts through the above-mentioned budget lines, CDC does not, in practice, treat its domestic and global programs separately. Instead, the same experts are used in domestic and global responses to health issues. As such, CDC often leverages its own resources in response to global requests for technical assistance in a number of areas that also have domestic components, such as outbreak response; the prevention and control of injuries and chronic diseases; emergency assistance and disaster response; environmental health; reproductive health; and safe water, hygiene, and sanitation. 

President Barack Obama has indicated early in his Administration that global health is a priority and that his Administration would continue to focus global health efforts on addressing HIV/AIDS. When releasing his FY2010 budget request, President Obama indicated that his Administration would increase investments in global health programs and, through his Global Health Initiative, improve the coordination of all global health programs. The President requested that in FY2010, Congress appropriate $319.2 million to CDC for global health programs—an estimated 6.3% increase over FY2009 enacted levels for CDC global health activities. Congress exceeded the President's request and provided CDC $328.4 million for global health activities. From FY2001 to FY2010, Congress made available some $2.3 billion to CDC for global health programs. 

CDC also partners in programs for which it does not have specific appropriations, such as global efforts to address tuberculosis (TB) and respond to pandemic influenza. In addition, the State Department and the U.S. Agency for International Development (USAID) transfer funds to CDC for its role as an implementing partner in U.S. coordinated initiatives, including PEPFAR, PMI, and the Neglected Tropical Diseases (NTD) Initiative. 

There is a growing consensus that U.S. global health assistance needs to become more efficient and effective. There is some debate, however, on the best strategies. This report explains the role CDC plays in U.S. global health assistance, highlights how much the agency has spent on global health efforts from FY2001 to FY2010, and discusses how funding to each of its programs has changed during this period. For more information on U.S. funding for other global health efforts, including those implemented by USAID, the Department of Defense (DOD), and the Global Fund to Fight AIDS, Tuberculosis, and Malaria (Global Fund) and debates about making U.S. global health assistance more efficient, see CRS Report R40740, U.S. Global Health Assistance: Background, Priorities, and Issues for the 111th Congress. .


Date of Report: January 28, 2010
Number of Pages: 26
Order Number: R40239
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Medical Malpractice Insurance and Health Reform

Bernadette Fernandez
Analyst in Health Care Financing

Baird Webel
Specialist in Financial Economics

Vivian S. Chu
Legislative Attorney

Medical malpractice liability insurance has attracted congressional attention numerous times over the past few decades, particularly in the midst of three "crisis" periods in the mid-1970s, the mid- 1980s, and the early 2000s. These crises were marked by sharp increases in physicians' liability insurance premiums, difficulties in finding any insurance in some areas as insurers withdrew from providing coverage, reports of physicians leaving areas or retiring following insurance difficulties, and a variety of public policy measures at both the state and federal levels to address the crises. Which public policy measures have been effective in addressing the successive insurance crises has been a matter of debate, in part because these crises have been at the intersection of the health care, tort, and insurance systems. 

Currently, the medical liability insurance market is not exhibiting crisis symptoms. Over the past four years, losses incurred by medical malpractice insurers have dropped dramatically and premiums paid have fallen, albeit more modestly. Problems with the affordability and availability of malpractice insurance persist but are less acute compared with other time periods. Even during a non-crisis period, the current malpractice system experiences issues with equity and access. For example, some observers have criticized the current system's performance with respect to compensating patients who have been harmed by malpractice, deterring substandard medical care, and promoting patient safety. Yet there are differing opinions as to the extent that each of these particular areas has been affected by the current malpractice system. 

The current legislative interest in medical malpractice reform differs from the past in that it is largely driven by overall health reform, rather than an immediate crisis in medical malpractice insurance. In terms of direct costs, medical malpractice insurance adds relatively little to the cost of health care. According to the National Association of Insurance Commissioners (NAIC), medical malpractice premiums written in 2008 totaled approximately $11.2 billion, while health expenditures are estimated by the Congressional Budget Office (CBO) to total $2.6 trillion. Indirect costs, particularly increased utilization of tests and procedures by physicians to protect against future lawsuits ("defensive medicine"), have been estimated to be much higher than direct premiums. These conclusions, however, are controversial, in part because synthesis studies have claimed that national estimates of defensive medicine are unreliable. 

To date, although slightly different, both the House and Senate health reform bills (H.R. 3962, the Affordable Health Care for America Act, and H.R. 3590, as passed by the Senate, the Patient Protection and Affordable Care Act) include language that would allow states to receive incentive payments to enact and implement medical liability laws. .


Date of Report: January 28, 2010
Number of Pages: 12
Order Number: R40862
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Immigration Policies and Issues on Health-Related Grounds for Exclusion

Chad C. Haddal
Analyst in Immigration Policy

Ruth Ellen Wasem
Specialist in Immigration Policy

Under current law, foreign nationals not already legally residing in the United States who wish to come to the United States generally must obtain a visa and submit to an inspection to be admitted. They must first meet a set of criteria specified in the Immigration and Nationality Act (INA) that determine whether they are eligible for admission. Moreover, they must also not be deemed inadmissible according to specified grounds in the INA. One of the reasons why a foreign national might be deemed inadmissible is on health-related grounds. The diseases that trigger inadmissibility in the INA are those communicable diseases of public health significance as determined by the Secretary of Health and Human Services (HHS). 

The outbreak of the 2009 H1N1 virus (commonly called "Swine Flu") has generated attention in Congress and the media, particularly with its relationship to foreign travel. With Mexico also suffering high infection rates of this strain of influenza, questions have been raised on travel restrictions to the United States, particularly in regard to foreign nationals. Potential issues for Congress are three-fold: (1) are current health-related grounds for exclusion sufficient to ensure public safety in regards to contagious diseases; (2) would increased restrictions on foreign travel (even temporarily) inflict more economic harm than benefit; and (3) are the resources provided for frontline agencies charged with screening foreign travelers sufficient to identify potentially infected travelers? 

From an immigration standpoint, infectious disease outbreaks place the greatest procedural and resource pressures on Customs and Border Protection (CBP), an agency within the Department of Homeland Security (DHS). CBP is charged with screening admissions of all travelers at land, sea, and air ports of entry (POE), and CBP Officers screened approximately 409 million individuals in FY2008 for admissions into the United States. CBP works in conjunction with the Centers for Disease Control and Prevention (CDC) to monitor travelers and attempt to contain any diseases that may be spread by travelers coming from abroad. CDC, in conjunction with CBP, operates 20 quarantine stations and has health officials on call for all ports of entry. DHS has established its role in case of a pandemic outbreak through a memorandum of understanding with other agencies and in The National Strategy for Pandemic Influenza. 

Various federal statutes and legal questions may arise should a response to an influenza pandemic require limiting the use of transportation-related infrastructure, which includes, but is not limited to airports, seaports, and land ports of entry. Constitutional concerns, especially those related to the "right to travel" may also be implicated by decisions impacting transportation-related infrastructure. 

In recent years health-related grounds for exclusion has also been a congressional concern for other contagious diseases. In addition to the H1N1 outbreak, these diseases have included tuberculosis (TB). This report will be updated as circumstances warrant.


Date of Report: January 29, 2010
Number of Pages: 19
Order Number: R40570
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FDA’s Authority to Regulate Drug Compounding: A Legal Analysis

Jennifer Staman
Legislative Attorney

Compounding is a process of combining, mixing, or altering ingredients in order to create a medication for a particular patient. While drug compounding has historically been regulated primarily by states, recent questions have been raised about the extent to which the Federal Food Drug and Cosmetic Act (FFDCA) governs this practice, and what authority the U.S. Food and Drug Administration (FDA) has to regulate a compounded drug as a "new drug," subject to approval by the FDA, as well as other requirements. In general, the FDA maintains that drug compounding activities are subject to FDA oversight, but will exercise discretion in enforcing various provisions of the FFDCA. 

In 1997, Congress enacted the FDA Modernization Act of 1997 (FDAMA), which was a comprehensive revision of the FFDCA. Section 127 of FDAMA added Section 503A to the FFDCA, which excepted compounded drugs from various "new drug" requirements, conditioned upon the compounded drugs meeting a variety of restrictions. One of the restrictions in Section 503A of the FFDCA was that drug providers were prohibited from soliciting or advertising particular compounded drugs. These speech restrictions were challenged on First Amendment grounds and were struck down by the Supreme Court in Thompson v. Western States Medical Center. Following this decision, there has been controversy over the current status of compounded drugs under the FFDCA and whether the remaining provisions of Section 503A remain good law, an issue that the Supreme Court did not address in Western States. The two circuits that addressed this issue took different positions. While the Ninth Circuit in Western States determined that Section 503A was struck down in its entirety, the Fifth Circuit in Medical Center Pharmacy v. Mukasey found that the lawful provisions of Section 503A are still in effect. Accordingly, these cases have created an interesting scenario of non-uniform enforcement throughout the U.S. In the Fifth Circuit, compounded drugs are specifically exempted from newdrug, adulteration, and misbranding requirements of the FFDCA if certain criteria are met; while in the Ninth Circuit (and, according to the FDA, the rest of the United States), compounded drugs are subject to these requirements, but the FDA may exercise discretion in taking action against an entity that violates these provisions. This report provides a brief historical overview of the FDA's regulation of drug compounding and addresses these conflicting decisions. The report will also address the FDA's current authority to regulate compounded drugs under the FFDCA in light of these decisions, and discuss possible future developments, including the recent controversy over compounding bioidentical hormone replacement therapy (BHRT) drugs.


Date of Report: January 29, 2010
Number of Pages: 14
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Global Health: USAID Programs and Appropriations from FY2001 through FY2010

Tiaji Salaam-Blyther
Specialist in Global Health

A number of U.S. agencies and departments implement U.S. government global health interventions. Overall, U.S. global health assistance is not always coordinated. Exceptions to this include U.S. international responses to key infectious diseases—for example, U.S. programs to address HIV/AIDS through the President's Emergency Plan for AIDS Relief (PEPFAR), malaria through the President's Malaria Initiative (PMI), and avian and pandemic influenza through the Avian Flu Task Force. Although a number of U.S. agencies and departments implement global health programs, this report focuses on funding for global health programs conducted by the U.S. Agency for International Development (USAID), a key recipient of U.S. global health funding. 

Congress appropriates funds to USAID for global health activities through five main budget lines: Child Survival and Maternal Health (CS/MH), Vulnerable Children (VC), HIV/AIDS, Other Infectious Diseases (OID), and Family Planning and Reproductive Health (FP/RH). From FY2001 through FY2009, Congress appropriated about $16.1 billion to USAID for global health programs (excluding contributions to the United Nations' Children's Fund [UNICEF] and the Global Fund to Fight AIDS, Malaria, and Tuberculosis [Global Fund]). Much of the growth in global health spending by USAID from FY2001 through FY2009 targeted three diseases: HIV/AIDS, malaria, and avian and pandemic influenza. During this period, Congress supported President Bush's calls for higher spending on these diseases through three key initiatives: the President's International Mother and Child HIV Prevention Initiative (FY2002-FY2004), PEPFAR (FY2004-FY2008), and PMI (FY2006-FY2010). Congress also endorsed the President's Pandemic Influenza Plan to address avian influenza and prepare for any pandemic influenza that might arise. 

Since PEPFAR was launched in 2004, the United States has apportioned the bulk of its global health spending on the plan. In light of the dominant role that PEPFAR has played in shaping U.S. global health assistance, analysis about funding for USAID's global health programs in this report is organized to reflect changes that occurred before and after PEPFAR authorization. 

President Barack Obama has indicated early in his Administration that global health is a priority and that his Administration would continue to focus global health efforts on addressing HIV/AIDS. When releasing his FY2010 budget request, President Obama indicated that his Administration would increase investments in global health programs and, through the Global Health Initiative, improve the coordination of all global health programs. The President requested that Congress approve $7.6 billion for global health programs funded through the Global Health and Child Survival (GHCS) Account, including $2.3 billion for USAID. Congress provided about $7.8 billion for GHCS, including $2.4 million for USAID global health programs. See CRS Report R40740, U.S. Global Health Assistance: Background, Priorities, and Issues for the 111th Congress, for more information on all U.S. global health funding.

There is a growing consensus that U.S. global health assistance needs to become more efficient and effective. There is some debate, however, on the best strategies. This report explains the role USAID plays in U.S. global health assistance, highlights how much the agency has spent on global health efforts from FY2001 to FY2010, discusses how funding to each of its programs has changed during this period, and raises some related policy questions. 


Date of Report: January 29, 2010
Number of Pages: 20
Order Number: RS22913
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Teenage Pregnancy Prevention: Statistics and Programs

Carmen Solomon-Fears
Specialist in Social Policy

In 2007, teen births accounted for 10.5% of all births and 22.6% of all nonmarital births. The birth rate for U.S. teenagers increased in 2006 and 2007 after a steady decline since 1991. This report briefly examines some of the data collected by the National Center for Health Statistics on teenage childbearing, offers potential reasons for high teen pregnancy and birth rates, and provides synopses of select federal programs to prevent teen pregnancy and reduce teen births. This report will be updated as legislative and statistical information warrant.

In 2006, an estimated 743,000 U.S. teenagers became pregnant, approximately 107,000 had miscarriages, and 200,000 had legal abortions (latest available data). 1 The result was that there were 435,000 births to teenagers in 2006. In 2007, 10.5% of all U.S. births were to teens, and 22.6% of all nonmarital births were to teens. In recognition of the negative, long-term consequences associated with teenage pregnancy and births, the prevention of teenage and out-ofwedlock childbearing is a major goal of this nation. Although the birth rate for U.S. teens has dropped in fourteen of the last sixteen years, it remains higher than the teenage birth rate of most industrialized nations.


Date of Report: February 1, 2010
Number of Pages: 10
Order Number: RS20301
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Medicaid: The Federal Medical Assistance Percentage (FMAP)

Chris L. Peterson
Specialist in Health Care Financing

Medicaid is a health insurance program jointly funded by the federal government and the states. Generally, eligibility for Medicaid is limited to low-income children, pregnant women, parents of dependent children, the elderly, and people with disabilities. The federal government's share of a state's expenditures for most Medicaid services is called the federal medical assistance percentage (FMAP). 

Generally determined annually, the FMAP is designed so that the federal government pays a larger portion of Medicaid costs in states with lower per capita income relative to the national average (and vice versa for states with higher per capita incomes). For FY2010, the original FMAPs—that is, excluding the impact of the temporary FMAP increase included in the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5)—range from 50.00% to 75.67%. 

In recent years, the fiscal situation of the states has focused attention on Medicaid expenditures, as well as on changes in the federal share, or FMAP. In the 108th Congress, the Jobs and Growth Tax Relief Reconciliation Act of 2003 (P.L. 108-27) provided temporary fiscal relief for states and local governments through a combination of FMAP increases and direct grants. In the 109th Congress, provisions to exclude certain Hurricane Katrina evacuees and their incomes from FMAP calculations and to prevent Alaska's FY2006-FY2007 FMAPs from decreasing were included in the Deficit Reduction Act of 2005 (P.L. 109-171). In the 110th Congress, a temporary FMAP increase was included in economic stimulus legislation that was debated but not adopted at the end of 2008. 

In the 111th Congress, ARRA included a temporary FMAP increase for nine quarters, subject to certain requirements. The Congressional Budget Office estimated that the provision will increase federal spending by $87.2 billion over five years. For the first quarter of FY2010, the FMAPs reflecting the ARRA increase range from 61.12% (Alaska) to 84.86% (Mississippi). 

Separate from the temporary FMAP increase, a provision excluding certain employer pension and insurance fund contributions from the calculation of Medicaid FMAPs beginning with FY2006 was included in the Children's Health Insurance Program Reauthorization Act of 2009 (P.L. 111- 3). For purposes of calculating Medicaid FMAPs only, the provision will have the effect of reducing certain states' per capita personal income relative to the national average, which in turn could increase their Medicaid FMAPs. HHS has yet to release guidance or revised FMAPs reflecting this provision. 

Date of Report: February 4, 2010
Number of Pages: 20
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Long-Term Care (LTC): Financing Overview and Issues for Congress

Julie Stone
Specialist in Health Care Financing

Most long-term care (LTC) received by people with disabilities and/or other limitations in their capacity for self-care due to a physical, cognitive, or mental disability or condition is provided by informal providers—family and friends—who give care without compensation. Formal LTC services in the United States, however, are financed by a wide variety of public and private sources. The largest public payer of LTC in the country is, by far, the Medicaid program, paying for almost half (48.5%) of all formal LTC services. Medicaid is intended to provide a safety net for those who cannot afford to pay for LTC services. Because Medicaid is administered and partially financed by each state, there is wide variation in eligibility and benefits across the nation. Medicare and other federal and state programs finance an additional quarter (24.8%) of formal LTC services. Each program has distinct eligibility criteria and, thus, distinct target populations, and each covers a different set of services. Multiple programs may also serve persons with long-term care needs simultaneously. 

Private financing, including out-of-pocket spending, pays for just over a quarter (26.8%) of formal LTC services. Of this, about 7% of LTC services are financed by private LTC insurance (LTCI). These policies are intended to provide financial protection to individuals and families to insure against the potentially high cost of care. 

People who do not have access to private LTC insurance and who are not immediately eligible for Medicaid or other public programs must pay for LTC services out-of-pocket, rely on family and friends, or forgo care. The out-of-pocket costs of LTC services can be catastrophic for some individuals and families, often exceeding annual income and, in some cases, personal savings and assets. 

Concern about the way LTC is financed and delivered has drawn congressional attention for several decades. Exacerbating this concern is the potential for increased demand on the nation's LTC system as a result of the aging U.S. population. At the same time, disability among the current cohorts of working-age Americans has been increasing over the past few decades. Congress continues to be concerned about the following issues: (1) barriers to public and private coverage; (2) strains on federal and state Medicaid budgets; (3) coordination of care across Medicaid, Medicare, and other public programs, as well as across provider settings; (4) spending on institutional care versus home and community-based services; (5) challenges facing consumers of LTC; (6) the supply and quality of the LTC workforce; (7) access to affordable housing; and (8) the quality of publicly funded LTC services. 

This report provides an overview of LTC and an explanation of the nation's complex financing system of public and private payers. It also describes some of the major challenges facing Congress as it contemplates LTC reform and whether and how to include LTC in health reform legislation. 


Date of Report: February 1, 2010
Number of Pages: 22
Order Number: R40718
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Premium Conversion of Health Insurance

Janemarie Mulvey
Specialist in Aging Policy

Premium conversion allows employees to pay their share of employment-based health insurance premiums on a pre-tax basis. The tax treatment is difficult for people who are not tax experts to understand, as are the rules that limit its use in a manner some consider arbitrary and unfair. Premium conversion is sometimes referred to as "premium only" or "section 125 plans," causing further confusion. 

Premium conversion is authorized by section 125 of the Internal Revenue Code, a section entitled "cafeteria plans." In general, the section allows taxpayers to choose among taxable and nontaxable benefits offered by an employer without paying taxes if they select the latter. As a rule under tax law, when taxpayers are offered a choice between taxable and normally nontaxable income they will be taxed on whichever they choose. Section 125 makes an exception to this rule for benefits such as health insurance that meet the section's requirements. 

Some cafeteria plans allow workers to choose among a number of benefits (hence the name), though others allow only a choice between cash and one nontaxable benefit. Premium conversion is restricted in this manner, with cash being in the form of wages that are not given up and health insurance being the one nontaxable benefit. Employers that offer premium conversion may also offer separate cafeteria plans with other choices. 

All cafeteria plans must be in writing and meet a number of nondiscrimination rules regarding highly compensated employees and company officers and owners. The rules are complex, and some make it difficult for small businesses to have the plans. 

Section 125 was included in the tax code in 1978, but it is not clear when employers began adopting premium conversion. It likely became more common as rising health care costs led employers to limit their insurance contributions and to help employees manage their own. Employers might obtain results similar to premium conversion by restricting wage growth and using the savings to increase what they pay for premiums. However, only premium conversion allows workers the flexibility to individually choose this outcome. 

Retirees sometimes complain that they cannot take advantage of premium conversion. The barrier is not section 125 but an IRS determination that distributions from qualified retirement plans are always subject to taxes, aside from several minor exceptions. Legislation, H.R. 1203 (Van Hollen) and S. 491 (Webb), has been introduced in the 1111th Congress to allow premium conversion for federal retirees. 

In its 2006 health care reform legislation, Massachusetts required all employers with 11 or more full-time equivalent workers to adopt premium conversion. Consideration might be given to whether a similar requirement might be included in health care reform legislation now before Congress. If it is included, Congress might also consider making it easier for small businesses to establish premium conversion, as it might establishing separate nondiscrimination rules for it. However, some in Congress are considering limiting the tax exclusion for employer-provided coverage, not expanding it; presumably they would not favor extending premium conversion to more employees. 


Date of Report: February 2, 2010
Number of Pages: 10
Order Number: R40729
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Health Insurance Premium Credits in Senate-Passed H.R. 3590

Chris L. Peterson
Specialist in Health Care Financing

Thomas Gabe
Specialist in Social Policy

This report describes the "premium assistance credits" to help certain individuals pay for health insurance in H.R. 3590, the Patient Protection and Affordable Care Act, as passed by the Senate on December 24, 2009. 

Under the bill, state-established "American Health Benefit Exchanges" would have to be established in every state by January 1, 2014. Exchanges would not be insurers, but would provide qualified individuals and small businesses with access to insurers' qualified health plans in a comparable way. 

Only for purchase of coverage within an exchange, advanceable, refundable premium assistance credits would be available to limit the amount of money some individuals would pay for premiums. For example, a family of three just above 133% of the federal poverty line (FPL)— that is, with 2009 annual income of $24,352—would be required to pay approximately 4% of its income toward premiums ($963 annually, if the proposed premium subsidies were currently in effect). A family of three just under 400% FPL ($73,240), where the premium subsidies end, would be required to pay no more than 9.8% of its income in premiums ($7,178 annually, if the proposed premium subsidies were currently in effect). 

Although the premium credits would not be available until 2014 under the bill, the illustrations provided in this report are based on current (2009) FPLs, to reflect how the premiums families would pay compare to their current income levels. 

Relative affordability of health insurance premiums individuals and families might face within health insurance exchanges would likely vary from exchange to exchange based on a host of factors, including enrollees' age, the health of the people actually enrolled in the plan, the varying prices paid by plans for medical goods and services, the breadth of the provider network, the provisions regarding how out-of-network care is paid for (or not), and the use of tools by the plan to reduce health care utilization (e.g., prior authorization for certain tests). Examples shown in this report depict a range by which premiums might reasonably be expected to vary based on enrollees' age, and variation in medical costs across geographic areas, for purposes of illustration only. Actual premiums would likely vary among health insurance exchanges based on a wide range of factors other than those depicted in this report. 


Date of Report: February 3, 2010
Number of Pages: 27
Order Number: R40935
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Health Insurance Premium Credits Under House-Passed H.R. 3962

Chris L. Peterson
Specialist in Health Care Financing

Thomas Gabe
Specialist in Social Policy

This report describes the premium credits—"affordable premium credits"—to help certain individuals pay for health insurance in H.R. 3962, the Affordable Health Care for America Act, as passed by the U.S. House of Representatives on November 7, 2009. 

Under H.R. 3962, a "Health Insurance Exchange" would begin operation in 2013 and would offer private plans alongside a public health insurance option and not-for-profit, member-run health insurance cooperatives. The Exchange would not be an insurer; it would provide eligible individuals and small businesses with access to insurers' plans, including the public option and cooperatives, in a comparable way. Individuals would only be eligible to enroll in an Exchange plan if they were not enrolled in Medicare, Medicaid or, for full-time employees, their employer's coverage. 

Only within the Exchange, credits would be available to limit the amount of money some individuals would pay for premiums. For example, a family of three at 133% of the federal poverty line (FPL)—that is, with 2009 annual income of $24,352—would be required to only pay 1.5% of their income toward premiums ($365 annually) toward a Basic plan in the Exchange, if the proposed premium subsidies were currently in effect. A family of three just under 400% FPL ($73,240), where the premium subsidies end, would be required to pay no more than 12% of their income ($8,789 annually) in premiums for a Basic Exchange plan, if the proposed premium subsidies were currently in effect. 

Although the Exchange and the premium credits would not be available until 2013 under H.R. 3962, the illustrations provided in this report are based on current (2009) FPLs, to reflect how the premiums families would pay compare to their current income levels. 

Relative affordability of health insurance premiums individuals and families might face within health insurance exchanges would likely vary from exchange to exchange based on a host of factors, including enrollees' age, the health of the people actually enrolled in the plan, the varying prices paid by plans for medical goods and services, the breadth of the provider network, the provisions regarding how out-of-network care is paid for (or not), and the use of tools by the plan to reduce health care utilization (e.g., prior authorization for certain tests). Examples shown in this report depict a range by which premiums might reasonably be expected to vary based on enrollees' age, and variation in medical costs across geographic areas, for purposes of illustration only. Actual premiums would likely vary among health insurance exchanges based on a wide range of factors other than those depicted in this report. 


Date of Report: February 3, 2010
Number of Pages: 27
Order Number: R40878
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The Market Structure of the Health Insurance Industry

D. Andrew Austin
Analyst in Economic Policy

Thomas L. Hungerford
Specialist in Public Finance

Congress is now considering proposals to reform the U.S. health care system and address the twin challenges of constraining rapid growth of health care costs and expanding access to high-quality health care. The House has passed the Affordable Health Care for Americans Act (H.R. 3962) and the Senate has passed the Patient Protection and Affordable Care Act (H.R. 3590). The Health Insurance Industry Antitrust Enforcement Act of 2009 (H.R. 3596), which the House Judiciary Committee reported in amended form, would limit the scope of antitrust exemptions provided by the McCarran-Ferguson Act (P.L. 79-15). 

This report discusses how the current health insurance market structure affects the two policy goals of expanding health insurance coverage and containing health care costs. Concerns about concentration in health insurance markets are linked to wider concerns about the cost, quality, and availability of health care. The market structure of the health insurance and hospital industries may have played a role in rising health care costs and in limiting access to affordable health insurance and health care. 

The market structure of the U.S. health insurance industry not only reflects the nature of health care, but also its origins in the 1930s and its evolution in succeeding decades. Before World War II, many commercial insurers doubted that hospital or medical costs were an insurable risk. But after the rapid spread of Blue Cross plans in the mid-1930s, several commercial insurers began to offer health coverage. By the 1950s, commercial health insurers had become potent competitors and began to cut into Blue Cross's market share in many regions, changing the competitive environment of the health insurance market. 

The health insurance market has many features that can hinder markets, lead to concentrated markets, and produce inefficient outcomes. Furthermore, the health insurance market is tightly interrelated with other parts of the health care system. Health insurers are intermediaries in the transaction of the provision of health care between patients and providers: reimbursing providers on behalf of patients, exercising some control over the number and types of services covered, and negotiating contracts with providers on the payments for health services. Consequently, policies affecting health insurers will likely affect the other parts of the health care sector. 

Evidence suggests that health insurance markets are highly concentrated in many local areas. Many large firms that offer health insurance benefits to their employees have self-insured, which may put some competitive pressure on insurers, although this is unlikely to improve market conditions for other consumers. The exercise of market power by firms in concentrated markets generally leads to higher prices and reduced output—high premiums and limited access to health insurance—combined with high profits. Many other characteristics of the health insurance markets, however, also contribute to rising costs and limited access to affordable health insurance. Rising health care costs, in particular, play a key role in rising health insurance costs. 

Health costs appear to have increased over time in large part because of complex interactions among health insurance, health care providers, employers, pharmaceutical manufacturers, tax policy, and the medical technology industry. Reducing the growth trajectory of health care costs may require policies that affect these interactions. Policies focused only on health insurance sector reform may yield some results, but are unlikely to solve larger cost growth and limited access problems.

This report will be updated as events warrant.


Date of Report: February 2, 2010
Number of Pages: 65
Order Number: R40834
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CRS Issue Statement on Health Care for Military Personnel and Veterans

Don J. Jansen, Coordinator
Analyst in Defense Health Care Policy

Current military operations in Iraq (Operation Iraqi Freedom) and Afghanistan (Operation Enduring Freedom) present a number of policy challenges for the second session of the 111th Congress. One serious issue is the care of U.S. servicemembers wounded during these long combat engagements. Medical technology available on the battlefields and in U.S. medical facilities is saving the lives of a high percentage of severely wounded soldiers, but they then often face long-term recovery and rehabilitation challenges. Especially prominent or problematic are cases of amputations, brain injuries, and a variety of operational stress injuries to mental health. During the first session of the 111th Congress, oversight hearings were held on the implementation of previously enacted legislation and efforts by the Departments of Defense (DOD) and Veterans Affairs (VA) to redress longstanding problems in the administrative processes affecting wounded soldiers.


Date of Report: January 12, 2010
Number of Pages: 3
Order Number: IS40322
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Emergency Response: Civil Liability of Volunteer Health Professionals

Vivian S. Chu
Legislative Attorney

The devastation inflicted on the Gulf region by Hurricanes Katrina and Rita in 2005 and Hurricanes Gustav and Ike in 2008, in addition to recent disasters in the Midwest due to tornadoes and flooding, triggered mass relief efforts by local, state, and federal government agencies, as well as private organizations and individuals. As unpaid volunteers have carried out much of the relief effort, some have questioned whether such volunteers—particularly medical personnel, so-called "volunteer health professionals" (VHPs)—will be protected from potential civil liability in carrying out their duties. This report provides a general overview of the various federal and state liability protections available to VHPs responding to disasters. This report does not discuss liability of VHPs who go abroad to render assistance.

In 2008, various communities across America were hit hard by natural disasters ranging from the great floods in Iowa to tornadoes in the Midwest and Hurricanes Ike and Gustav in the Gulf region. When volunteers go to these disaster areas as they did when Hurricane Katrina hit Louisiana and the surrounding states in 2005, questions arise as to the potential civil liability of those volunteer health professionals (VHPs)—individually licensed medical professionals who gratuitously provide medical services in response to these regions' clear need for medical skills and services. The concern is that the potential threat of medical malpractice liability, in particular, may give pause to these VHPs. 

This report discusses the patchwork of federal and state laws that operate to protect volunteers generally, which can include VHPs, and those laws that trigger liability protection only for VHPs1—with a focus on some of the midwestern states in addition to the Gulf region. Whether a VHP is protected from civil liability depends on a number of factors, including under whose control the VHP operates and whether or not a state of emergency has been declared. The liability protections discussed in this report generally shield volunteers from civil liability for negligent conduct (i.e., a failure to take adequate care that results in injuries or losses to others). Civil liability for conduct that is more egregious than mere negligence, such as willful, or grossly negligent conduct, is not protected, unless otherwise noted. Criminal conduct is also not protected.


Date of Report: February 2, 2010
Number of Pages: 10
Order Number: R40176
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Older Americans Act: Title III Nutrition Services Program

Kirsten J. Colello
Specialist in Health and Aging Policy

The elderly nutrition services program, authorized under Title III of the Older Americans Act, provides grants to state agencies on aging to support congregate and home-delivered meals for people aged 60 and older. The program is designed to address problems of food insecurity, promote socialization, and promote the health and well-being of older persons through nutrition and nutrition-related services. It is the largest Older Americans Act program, funded at $819.5 million in FY2010, accounting for over one-third (35%) of the Act's total funding. In FY2008, the most recent year for which data are available, over 240 million meals were served to about 2.6 million people; 61% were served to frail older people living at home, and 39% were served in congregate settings. The number of home-delivered meals served has outpaced congregate meals, growing by almost 44% from FY1990 to FY2008; the number of congregate meals served declined by 34%. The faster growth in home-delivered meals is partially due to relatively higher growth in federal funding for home-delivered meals over that time period, as well as state decisions to focus funds on frail older people living at home. Congress approved the Older Americans Act Amendments of 2006 (P.L. 109-365) extending the Act's authorization of appropriations through FY2011.


Date of Report: February 1, 2010
Number of Pages: 11
Order Number:RS21202
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Reducing Teen Pregnancy: Adolescent Family Life and Abstinence Education Programs

Carmen Solomon-Fears
Specialist in Social Policy

In 2007, 48% of students in grades 9-12 reported that they had experienced sexual intercourse; about 20% of female teens who have had sexual intercourse become pregnant each year. In recognition of the often negative, long-term consequences associated with teenage pregnancy, Congress has provided funding for the prevention of teenage and out-of-wedlock pregnancies. This report discusses three programs that exclusively attempt to reduce teenage pregnancy. The Adolescent Family Life (AFL) demonstration program was enacted in 1981 as Title XX of the Public Health Service Act, and the Abstinence Education program was enacted in 1996 as part of the welfare reform legislation. Also, since FY2001, additional funding for community-based abstinence education programs has been included in annual Department of Health and Human Services (HHS) appropriations. 

No abstinence-only education funding has been appropriated for FY2010. Instead, P.L. 111-117, the Consolidated Appropriations for FY2010, includes a $110 million new discretionary teenage pregnancy prevention program for FY2010. The new program would provide grants and contracts, on a competitive basis, to public and private entities to fund "medically accurate and age appropriate" programs that reduce teen pregnancy. This report will be updated periodically. 

(For information on the Obama Administration's and Congress' new approach to teen pregnancy prevention, see CRS Report R40618, Teen Pregnancy Prevention: Background and Proposals in the 111th Congress.) .


Date of Report: February 2, 2010
Number of Pages: 10
Order Number:RS20873
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CRS Issue Statement on Abortion, Family Planning, and Reproductive Health

Jon O. Shimabukuro, Coordinator
Legislative Attorney

Congress has maintained a longstanding interest in abortion since 1973 when the U.S. Supreme Court first recognized that a woman has a constitutional right to choose whether to terminate her pregnancy. Since the Court's decision in Roe v. Wade, there have been numerous efforts in Congress to restrict the availability of abortion through proposed constitutional and statutory amendments, and through funding restrictions attached to appropriations and authorizations measures. The availability of insurance coverage for elective abortions has also been an issue in the ongoing debate over health reform. Bills that would establish constitutional protection for entities at all stages of life, provide funds for international family planning organizations, and address the abridgement of state parental consent and notification requirements may be considered by Congress during the second session of the 111th Congress. 

Legislation that attempts to reduce the number of uninsured individuals and restructure the private health insurance market has been passed by both the House of Representatives and the Senate. The House- and Senate-passed measures include provisions that address the coverage of abortion by health benefits plans that would be available through a health insurance exchange. The abortion provisions have been controversial, particularly with regard to the use of federal affordability credits or premium subsidies to obtain health coverage that includes coverage for elective abortion services.


Date of Report: January 11, 2010
Number of Pages: 3
Order Number: IS40251
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Supplemental Security Income (SSI):A Fact Sheet

Scott Szymendera 
Analyst in Disability Policy

The Supplemental Security Income (SSI) program, enacted in 1974, is a needs-based program that provides cash benefits designed to ensure a minimum income to aged, blind, or disabled persons with limited income and assets. The SSI program is a means-tested program that does not have work or contribution requirements, but restricts benefits to those who meet asset and resource limitations. In December 2009, the SSI program had 7,676,686 participants, who received more than $4.1 billion in benefits. In FY2009, the total net cost of the SSI program was $45.25 billion, including $42.11 billion in federal benefit payments. Funding for the SSI program is provided by Congress in the annual Departments of Labor, Health and Human Services, Education and Related Agencies appropriations bill.


Date of Report: February 2, 2010
Number of Pages: 6
Order Number: 96-486
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CRS Issue Statement on Disability Benefits

Scott Szymendera, Coordinator
Analyst in Disability Policy

Federal disability benefit programs are primarily intended to provide a measure of income security to persons with disabilities by replacing some of the income lost due to their inability to work or due to the increased medical, housing, transportation, and other costs often associated with disability. The modern federal commitment to provide such benefits to persons with disabilities has its beginnings in the 20th century. At the beginning of the century, during the nation's industrial revolution, the federal government began one of the first workers' compensation programs for railroad workers, who, because of the interstate nature of their work, could not be served by any one state program, and later extended coverage to federal employees and interstate longshore and harbor workers. With the passage of the Social Security Act in 1935, the federal government committed to provide income replacement to persons who stopped working because of their age and 20 years later extended this commitment to persons unable to work because of disability. The first benefits for disabled veterans were paid before the United States was a nation, and this commitment was formalized into a unified federal veterans benefit system in 1930. In addition to these precedents, modern disability programs also find their homes in the federal government because of our nation's constitutional obligation to provide for the "general welfare" and civil rights of all Americans.


Date of Report: January 15, 2010
Number of Pages: 7
Order Number: IS40283
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CRS Issue Statement on the Aging of Society

Janemarie Mulvey, Coordinator
Specialist in Aging Policy

Currently, transfer payments and services to the elderly comprise one-third of the federal budget. As the first wave of the baby boom generation (born between 1946-1964) begins to retire, a combination of an aging population and longer life expectancies will have important implications across many different policy areas for Congress. In addition to their sheer size (approximately 80 million), longer life expectancies means their retirement income from both public and private sources will have to last over a longer period of time. This is also expected to increase health care costs and the likelihood of needing often expensive longterm care (LTC) services. In addition, declining fertility rates will result in relatively fewer workers available to support a growing number of retirees. 

For public programs such as Social Security, Medicare, and Medicaid, benefits will most likely be paid over a longer period of time to a relatively larger cohort of beneficiaries, resulting in spending significantly above current levels. In addition, public programs targeted toward older Americans largely rely on payroll taxes paid by current workers. As the ratio of workers to retirees declines, growth in tax revenues to fund these programs is also expected to slow. Congress may consider policies to address expected shortfalls in these programs.


Date of Report: January 13, 2010
Number of Pages: 5
Order Number: IS40279
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Lead-Based Paint Poisoning Prevention: Summary of Federal Mandates and Financial Assistance for Reducing Hazards in Housing

Linda-Jo Schierow
Specialist in Environmental Policy

Many U.S. children have unacceptably high levels of lead in their blood, which may result in reduced intellectual ability, learning disabilities, or other health concerns. A key source of lead exposure often is house dust containing lead-based paint (LBP) from deteriorated or abraded surfaces of walls, door jambs, and window sashes. The federal Lead-Based Paint Poisoning Prevention Act (LBPPPA), as amended, establishes requirements and authorizes funding for the detection and control of LBP hazards in federally assisted housing. The Residential Lead-Based Paint Hazard Reduction Act of 1992 (Housing and Community Development Act of 1992, Title X; P.L. 102-550) authorizes federal grants to state and local governments to provide assistance to private owners of other housing (i.e., not federally assisted) for low-income residents for LBP hazard reduction. The federal strategy to reduce childhood exposure to LBP promotes interim measures, rather than complete removal of LBP, to eliminate by 2010 hazards from housing units constructed prior to 1960. In 2000, President Clinton's Task Force on Environmental Health Risks and Safety Risks to Children suggested that the use of financial incentives, such as tax credits or deductions, might be explored to reduce LBP hazards in housing for additional low-income families not served by HUD grants and moderate-income families with young children. Legislation (S. 1245) to provide such incentives has been introduced into the 111h Congress.


Date of Report: January 25, 2010
Number of Pages: 8
Order Number: RS21688
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