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[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2183 Introduced in Senate (IS)]

109th CONGRESS
  2d Session
                                S. 2183

  To provide for necessary beneficiary protections in order to ensure 
access to coverage under the Medicare part D prescription drug program.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            January 20, 2006

Mr. Rockefeller (for himself, Mr. Reid, Mrs. Murray, Mr. Bingaman, Mrs. 
 Lincoln, Mr. Kennedy, Mrs. Clinton, Mr. Lautenberg, Ms. Stabenow, Mr. 
 Durbin, Mr. Kerry, Mr. Schumer, Mr. Pryor, Mr. Leahy, Mr. Dayton, Mr. 
  Jeffords, Mr. Harkin, Ms. Mikulski, Mr. Johnson, Ms. Cantwell, Mr. 
 Akaka, Mr. Lieberman, Mr. Kohl, Ms. Landrieu, Mr. Sarbanes, and Mrs. 
Boxer) introduced the following bill; which was read twice and referred 
                      to the Committee on Finance

_______________________________________________________________________

                                 A BILL

 
  To provide for necessary beneficiary protections in order to ensure 
access to coverage under the Medicare part D prescription drug program.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Requiring 
Emergency Pharmaceutical Access for Individual Relief (REPAIR) Act of 
2006''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Transition requirements.
Sec. 3. Federal fallback for full-benefit dual eligible individuals for 
                            2006.
Sec. 4. Identifying full-benefit dual eligible individuals in data 
                            records.
Sec. 5. Prohibition on conditioning Medicaid eligibility for 
                            individuals enrolled in certain creditable 
                            prescription drug coverage on enrollment in 
                            the Medicare part D drug program.
Sec. 6. Ensuring that full-benefit dual eligible individuals are not 
                            overcharged.
Sec. 7. Reimbursement of States for 2006 transition costs.
Sec. 8. Facilitation of identification and enrollment through 
                            pharmacies of full-benefit dual eligible 
                            individuals in the Medicare part D drug 
                            program.
Sec. 9. State health insurance program assistance regarding the new 
                            Medicare prescription drug benefit.
Sec. 10. Additional Medicare part D informational resources.
Sec. 11. GAO study and report on the imposition of co-payments under 
                            part D for full-benefit dual eligible 
                            individuals residing in a long-term care 
                            facility.
Sec. 12. State coverage of non-formulary prescription drugs for full-
                            benefit dual eligible individuals during 
                            2006.
Sec. 13. Protection for full-benefit dual eligible individuals from 
                            plan termination prior to receiving 
                            functioning access in a new part D plan.

SEC. 2. TRANSITION REQUIREMENTS.

    (a) Requirement.--
            (1) In general.--Section 1860D-4(b) of the Social Security 
        Act (42 U.S.C. 1395w-104(b)) is amended by adding at the end 
        the following new paragraph:
            ``(4) Formulary transition.--The sponsor of a prescription 
        drug plan is required to provide at least a 30-day supply of 
        any drug that a new enrollee in the plan was taking prior to 
        enrolling in such plan. For individuals residing in a long-term 
        care setting, the sponsor of a prescription drug plan is 
        required to provide at least a 90-day supply of any drug such 
        individual was taking prior to enrolling in such plan. A 
        formulary transition supply provided under this section shall 
        be made by the sponsor of a prescription drug plan without 
        imposing any prior authorization requirements or other access 
        restrictions for individuals stabilized on a course of 
        treatment and at the dosage previously prescribed by a 
        physician or recommended by a physician going forward.
            ``(5) Customer service.--The sponsor of a prescription drug 
        plan is required to provide--
                    ``(A) accessible and trained customer service 
                representatives available for full business hours from 
                coast to coast to provide knowledgeable assistance to 
                individuals seeking help with Medicare Part D 
                including, but not limited to, beneficiaries, 
                caseworkers, SHIP counselors, pharmacists, doctors, and 
                caregivers;
                    ``(B) at least one dedicated phone line for 
                pharmacists with sufficient staff to reduce wait times 
                for pharmacists seeking Medicare Part D assistance to 
                no more than 20 minutes; and
                    ``(C) sufficient staff to reduce wait times for all 
                Medicare Part D-related calls to plan phone lines to no 
                more than 20 minutes.''.
            (2) Application.--The requirements under paragraphs (4) and 
        (5) of section 1860D-4(b) of the Social Security Act (42 U.S.C. 
        1395w-104(b)), as added by subsection (a), shall apply to the 
        plan serving as the national point of sale contractor under 
        part D of title XVIII of such Act.
    (b) Effective Date and Enforcement.--
            (1) Effective date.--The amendment made by subsection (a) 
        shall take effect on the date of enactment of this Act.
            (2) Enforcement.--The Secretary may impose a civil monetary 
        penalty in an amount not to exceed $15,000 for conduct that a 
        sponsor of a prescription drug plan or an organization offering 
        an MA-PD plan knows or should know is a violation of the 
        provisions of paragraph (4) or (5) of section 1860D-4(b) of the 
        Social Security Act (42 U.S.C. 1395w-104(b)), as added by 
        subsection (a). The provisions of section 1128A of the Social 
        Security Act (42 U.S.C. a-7a), other than subsections (a) and 
        (b) and the second sentence of subsection (f), shall apply to a 
        civil monetary penalty under the previous sentence in the same 
        manner as such provisions apply to a penalty or proceeding 
        under subsection (a) of such section 1128A(a).

SEC. 3. FEDERAL FALLBACK FOR FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS FOR 
              2006.

    (a) In General.--
            (1) In general.--If a full-benefit dual eligible individual 
        (as defined in section 1935(c)(6) of the Social Security Act 
        (42 U.S.C. 1396u-5(c)(6))), or an individual who is presumed to 
        be such an individual pursuant to subsection (b), presents a 
        prescription for a covered part D drug (as defined in section 
        1860D-2(e) of such Act (42 U.S.C. 1395w-102(e))) at a pharmacy 
        in 2006 and the pharmacy is unable to locate or verify the 
        individual's enrollment through a reasonable effort, including 
        the use of the pharmacy billing system or by calling an 
        official Medicare hotline, or to bill for the prescription 
        through the plan serving as the national point of sale 
        contractor, the pharmacy may provide a 30-day supply of the 
        drug to the individual.
            (2) Refill.--The pharmacy may provide an additional 30-day 
        supply of a drug if the pharmacy continues to be unable to 
        locate the individual's enrollment through such reasonable 
        efforts or to bill for the prescription through the plan 
        serving as the national point of sale contractor when a 
        prescription is presented on or after the date that a 
        prescription refill is appropriate, but in no case after 
        December 31, 2006.
            (3) Cost-sharing.--The cost-sharing for a prescription 
        filled pursuant to this subsection shall be cost-sharing 
        provided for under section 1860D-14(a) of the Social Security 
        Act (42 U.S.C. 1395w-114(a)).
    (b) Presumptive Eligibility.--An individual shall be presumed to be 
a full-benefit dual eligible individual (as so defined) if the 
individual presents at the pharmacy with--
            (1) a government issued picture identification card;
            (2) reliable evidence of Medicaid enrollment, such as a 
        Medicaid card, recent history of Medicaid billing in the 
        pharmacy patient profile, or a copy of a current Medicaid award 
        letter; and
            (3) reliable evidence of Medicare enrollment, such as a 
        Medicare identification card, a Medicare enrollment approval 
        letter, a Medicare Summary Notice, or confirmation from an 
        official Medicare hotline.
    (c) Payments to Pharmacists.--
            (1) In general.--The Secretary of Health and Human Services 
        shall reimburse pharmacists, to the extent that such 
        pharmacists are not otherwise reimbursed by States or plans, 
        for the costs incurred in complying with the requirements under 
        subsection (a), including acquisition costs, dispensing costs, 
        and other overhead costs. Such payments shall be made in a 
        timely manner from the Medicare Prescription Drug Account under 
        section 1860D-16 of the Social Security Act (42 U.S.C. 1395w-
        116) and shall be deemed to be payments from such Account under 
        subsection (b) of such section.
            (2) Retroactive application to beginning of 2006.--The 
        costs incurred by a pharmacy which may be reimbursed under 
        paragraph (1) shall include costs incurred during the period 
        beginning on January 1, 2006, and before the date of enactment 
        of this Act.
    (d) Recovery of Costs From Plans by Secretary Not Pharmacies.--The 
Secretary of Health and Human Services shall establish a process for 
recovering the costs described in subsection (c)(1) from prescription 
drug plans (as defined in section 1860D-1(a)(3)(C) of the Social 
Security Act (42 U.S.C. 1394w-101(a)(3)(C))) and MA-PD plans (as 
defined in section 1860D-41(a)(14) of such Act (42 U.S.C. 1395w-
151(a)(14))) if the Secretary determines that such plans should have 
incurred such costs. Amounts recovered pursuant to the preceding 
sentence shall be deposited in the Medicare Prescription Drug Account 
described in subsection (c)(1).

SEC. 4. IDENTIFYING FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS IN DATA 
              RECORDS.

    (a) In General.--The Secretary of Health and Human Services and a 
prescription drug plan or an MA-PD plan shall clearly identify all 
full-benefit dual eligible individuals (as defined in section 
1935(c)(6) of the Social Security Act (42 U.S.C. 1396u-5(c)(6))) and 
reflect the low-income subsidy status of such individual for each 
calender year (beginning with 2006) in every data record file used to 
enroll or adjudicate claims for such individuals.
    (b) Enrollment.--For each calendar year (beginning with 2006) and 
for each Medicaid beneficiary who is a full-benefit dual eligible 
individual (as so defined), the Secretary of Health and Human Services 
shall--
            (1) identify in the Medicare enrollment database that such 
        individual has dual eligible status that has been verified with 
        a State or the District of Columbia; and
            (2) ensure that such dual eligible status is reflected in 
        each data file necessary to ensure that such status is 
        transmitted to a prescription drug plan or an MA-PD plan when 
        the Secretary certifies the enrollment of such an individual in 
        a plan.
    (c) Definition of MA-PD Plan and Prescription Drug Plan.--For 
purposes of this section, the terms ``MA-PD plan'' and ``prescription 
drug plan'' have the meaning given such terms in sections 1860D-
1(a)(3)(C) and 1860D-41(a)(14) of the Social Security Act (42 U.S.C. 
1395w-101(a)(3)(C); 1395w-151(a)(14)), respectively.

SEC. 5. PROHIBITION ON CONDITIONING MEDICAID ELIGIBILITY FOR 
              INDIVIDUALS ENROLLED IN CERTAIN CREDITABLE PRESCRIPTION 
              DRUG COVERAGE ON ENROLLMENT IN THE MEDICARE PART D DRUG 
              PROGRAM.

    (a) In General.--Section 1935 of the Social Security Act (42 U.S.C. 
1396v) is amended by adding at the end the following:
    ``(f) Prohibition on Conditioning Eligibility for Medical 
Assistance for Individuals Enrolled in Certain Creditable Prescription 
Drug Coverage on Enrollment in Medicare Prescription Drug Benefit.--
            ``(1) In general.--A State shall not condition eligibility 
        for medical assistance under the State plan for a part D 
        eligible individual (as defined in section 1860D-1(a)(3)(A)) 
        who is enrolled in creditable prescription drug coverage 
        described in any of subparagraphs (C) through (H) of section 
        1860D-13(b)(4) on the individual's enrollment in a prescription 
        drug plan under part D of title XVIII or an MA-PD plan under 
        part C of such title.
            ``(2) Coordination of benefits with part d for other 
        individuals.--Nothing in this subsection shall be construed as 
        prohibiting a State from coordinating medical assistance under 
        the State plan with benefits under part D of title XVIII for 
        individuals not described in paragraph (1).''.
    (b) Nullification of State Plan Amendments, Redetermination of 
Eligibility.--In the case of a State that, as of the date of enactment 
of this Act, has an approved amendment to its State plan under title 
XIX of the Social Security Act with a provision that conflicts with 
section 1935(f) of such Act (as added by subsection (a)), such 
provision is, as of such date of enactment, null and void. The State 
shall redetermine any applications for medical assistance that have 
been denied solely on the basis of the application of such a State plan 
amendment not later than 90 days after the date of enactment of this 
Act.

SEC. 6. ENSURING THAT FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS ARE NOT 
              OVERCHARGED.

    (a) In General.--Section 1860D-14 of the Social Security Act (42 
U.S.C. 1395w-114) is amended--
            (1) by redesignating subsection (d) as subsection (e); and
            (2) by inserting after subsection (c) the following new 
        subsection:
    ``(d) Ensuring Full-Benefit Dual Eligible Individuals Are Not 
Overcharged.--
            ``(1) In general.--The Secretary shall, as soon a possible 
        after the date of enactment of this subsection, establish 
        processes for the following:
                    ``(A) Tracking inappropriate payments.--The 
                Secretary shall track full-benefit dual eligible 
                individuals enrolled in a prescription drug plan or an 
                MA-PD plan to determine whether such individuals were 
                inappropriately subject under the plan to a deductible 
                or cost-sharing that is greater than is required under 
                section 1860D-14.
                    ``(B) Reduction in payments to plans and refunds to 
                individuals.--If the Secretary determines under 
                subparagraph (A) that an individual was overcharged, 
                the Secretary shall--
                            ``(i) reduce payments to the sponsor of the 
                        prescription drug plan under section 1860D-15 
                        or to the organization offering the MA-PD plan 
                        under section 1853 that inappropriately charged 
                        the individual by an amount equal to the 
                        inappropriate charges; and
                            ``(ii) refund such amount to the individual 
                        within 60 days of the determination that the 
                        individual was inappropriately charged.
                If the Secretary does not provide for the refund under 
                clause (i) within the 60 days provided for under such 
                clause, interest at the rate established under section 
                6621(a)(1) of the Internal Revenue Code of 1986 shall 
                be payable from the end of such 60-day period until the 
                date of the refund.
            ``(2) Requirement.--The processes established under 
        paragraph (1) shall provide for the ability of an individual to 
        notify the Secretary if the individual believes that they were 
        inappropriately subject under the plan to a deductible or cost-
        sharing that is greater than is required under section 1860D-
        14.''.
    (b) Report to Congress.--Not later than January 1, 2007, the 
Secretary of Health and Human Services shall submit a report to 
Congress on the implementation of the processes established under 
subsection (d) of section 1860D-14 of the Social Security Act (42 
U.S.C. 1395w-114), as added by subsection (a).

SEC. 7. REIMBURSEMENT OF STATES FOR 2006 TRANSITION COSTS.

    (a) Reimbursement.--
            (1) In general.--Notwithstanding section 1935(d) of the 
        Social Security Act (42 U.S.C. 1396u-5(d) or any other 
        provision of law, the Secretary of Health and Human Services 
        shall reimburse States for 100 percent of the costs incurred by 
        the State during 2006 for covered part D drugs (as defined in 
        section 1860D-2(e) of such Act (42 U.S.C. 1395w-102(e))) for 
        part D eligible individuals (as defined in section 1860D-
        1(a)(3)(A) of the Social Security Act (42 U.S.C. 1394w-
        101(a)(3)(A))) which the State reasonably expected would have 
        been covered under such part but were not because the 
        individual was unable to access on a timely basis prescription 
        drug benefits to which they were entitled under such part. Such 
        payments shall be made from the Medicare Prescription Drug 
        Account under section 1860D-16 of the Social Security Act (42 
        U.S.C. 1395w-116) and shall be deemed to be payments from such 
        Account under subsection (b) of such section.
            (2) Retroactive application to beginning of 2006.--The 
        costs incurred by a State which may be reimbursed under 
        paragraph (1) shall include costs incurred during the period 
        beginning on January 1, 2006, and before the date of enactment 
        of this Act.
    (b) Recovery of Costs From Plans by Secretary Not States.--The 
Secretary of Health and Human Services shall establish a process for 
recovering the costs described in subsection (a)(1) from prescription 
drug plans (as defined in section 1860D-1(a)(3)(C) of the Social 
Security Act (42 U.S.C. 1394w-101(a)(3)(C))) and MA-PD plans (as 
defined in section 1860D-41(a)(14) of such Act (42 U.S.C. 1395w-
151(a)(14))) if the Secretary determines that such plans should have 
incurred such costs. Amounts recovered pursuant to the preceding 
sentence shall be deposited in the Medicare Prescription Drug Account 
described in subsection (a)(1).
    (c) State.--For purposes of this section, the term ``State'' 
includes the District of Columbia.

SEC. 8. FACILITATION OF IDENTIFICATION AND ENROLLMENT THROUGH 
              PHARMACIES OF FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS IN 
              THE MEDICARE PART D DRUG PROGRAM.

    (a) In General.--The Secretary of Health and Human Services shall 
provide for outreach and education to every pharmacy that has 
participated in the Medicaid program under title XIV of the Social 
Security Act, particularly independent pharmacies, on the following:
            (1) The needs of full-benefit dual eligible individuals and 
        the challenges of meeting those needs.
            (2) The processes for the transition from Medicaid 
        prescription drug coverage to coverage under such part D for 
        such individuals.
            (3) The processes established by the Secretary to 
        facilitate, at point of sale, identification of drug plan 
        assignment of such population or enrollment of previously 
        unidentified or new full-benefit dual eligible individuals into 
        Medicare part D prescription drug coverage, including how 
        pharmacies can use such processes to help ensure that such 
        population makes a successful transition to Medicare part D 
        without a lapse in prescription drug coverage.
    (b) Holding Pharmacies Harmless for Certain Costs.--
            (1) In general.--The Secretary of Health and Human Services 
        shall provide for such payments to pharmacies as may be 
        necessary to reimburse pharmacies fully for--
                    (A) transaction fees associated with the point-of-
                sale facilitated identification and enrollment 
                processes referred to in subsection (a)(3); and
                    (B) costs associated with technology or software 
                upgrades necessary to make any identification and 
                enrollment inquiries as part of the processes under 
                subsection (a)(3).
            (2) Time.--Payments under paragraph (1) shall be made with 
        respect to fees and costs incurred during the period beginning 
        on December 1, 2005, and ending on June 1, 2006.
            (3) Payments from account.--Payments under paragraph (1) 
        shall be made from the Medicare Prescription Drug Account under 
        section 1860D-16 of the Social Security Act (42 U.S.C. 1395w-
        116) and shall be deemed to be payments from such Account under 
        subsection (b) of such section.

SEC. 9. STATE HEALTH INSURANCE PROGRAM ASSISTANCE REGARDING THE NEW 
              MEDICARE PRESCRIPTION DRUG BENEFIT.

    During the period beginning on the date that is 7 days after the 
date of enactment of this Act and ending on May 15, 2006 (or a later 
date if determined appropriate by the Secretary of Health and Human 
Services), the Secretary shall ensure that an employee of the Centers 
for Medicare & Medicaid Services is stationed at each State health 
insurance counseling program (receiving funding under section 4360 of 
the Omnibus Budget Reconciliation Act of 1990) in order to--
            (1) assist Medicare beneficiaries and counselors under such 
        program in better understanding the Medicare prescription drug 
        benefit under part D of title XVIII of the Social Security Act; 
        and
            (2) act as a liaison to the Secretary and the Administrator 
        of the Centers for Medicare & Medicaid Services regarding 
        issues related to oversight and enforcement of provisions under 
        the Medicare prescription drug benefit.

SEC. 10. ADDITIONAL MEDICARE PART D INFORMATIONAL RESOURCES.

    (a) 1-800-MEDICARE.--The Secretary of Health and Human Services 
shall increase the number of trained employees staffing the toll-free 
telephone number 1-800-MEDICARE in order to ensure that the average 
wait time for a caller does not exceed 20 minutes.
    (b) Pharmacy Hotline.--The Secretary of Health and Human Services 
shall--
            (1) establish a toll-free telephone number that is 
        dedicated to providing information regarding the Medicare 
        prescription drug benefit under title XVIII of the Social 
        Security Act to pharmacists; and
            (2) staff such telephone number in order to ensure that the 
        average wait time for a caller does not exceed 20 minutes.
    (c) State Health Insurance Program Hotline.--The Secretary of 
Health and Human Services shall--
            (1) establish a toll-free telephone number that is 
        dedicated to providing information regarding the Medicare 
        prescription drug benefit under title XVIII of the Social 
        Security Act to counselors working in State health insurance 
        counseling programs (receiving funding under section 4360 of 
        the Omnibus Budget Reconciliation Act of 1990); and
            (2) staff such telephone number in order to ensure that the 
        average wait time for a caller does not exceed 20 minutes.

SEC. 11. GAO STUDY AND REPORT ON THE IMPOSITION OF CO-PAYMENTS UNDER 
              PART D FOR FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS 
              RESIDING IN A LONG-TERM CARE FACILITY.

    (a) Study.--The Comptroller General of the United States shall 
conduct a study on how mental health patients who are full-benefit dual 
eligible individuals (as defined in section 1935(c)(6) of the Social 
Security Act (42 U.S.C. 1396u-5(c)(6))) and who reside in long-term 
care facilities, including licensed assisted living facilities, will be 
affected by the imposition of co-payments for covered part D drugs 
under part D of title XVIII of such Act. Such study shall include a 
review of issues that relate to the potential harm of displacement due 
to an inability to access needed medications because of such co-
payments.
    (b) Report.--Not later than 6 months after the date of enactment of 
this Act, the Comptroller General of the United States shall submit a 
report to Congress on the study conducted under subsection (a) together 
with recommendations for such legislation as the Comptroller General 
determines is appropriate.

SEC. 12. STATE COVERAGE OF NON-FORMULARY PRESCRIPTION DRUGS FOR FULL-
              BENEFIT DUAL ELIGIBLE INDIVIDUALS DURING 2006.

    (a) State Coverage of Non-Formulary Prescription Drugs for Full-
Benefit Dual Eligible Individuals During 2006.--For prescriptions 
filled during 2006, notwithstanding section 1935(d) of the Social 
Security Act (42 U.S.C. 1396v(d)), a State (as defined for purposes of 
title XIX of such Act) may provide (and receive Federal financial 
participation for) medical assistance under such title with respect to 
prescription drugs provided to a full-benefit dual eligible individual 
(as defined in section 1935(c)(6) of such Act (42 U.S.C. 1396v(c)(6)) 
that are not on the formulary of the prescription drug plan under part 
D or the MA-PD plan under part C of title XVIII of such Act in which 
such individual is enrolled.
    (b) Application.--
            (1) Medicare as primary payer.--Nothing in subsection (a) 
        shall be construed as changing or affecting the primary payer 
        status of a prescription drug plan under part D or an MA-PD 
        plan under part C of title XVIII of the Social Security Act 
        with respect to prescription drugs furnished to any full-
        benefit dual eligible individual (as defined in section 
        1935(c)(6) of such Act (42 U.S.C. 1396v(c)(6)) during 2006.
            (2) Third party liability.--Nothing in subsection (a) shall 
        be construed as limiting the authority or responsibility of a 
        State under section 1902(a)(25) of the Social Security Act (42 
        U.S.C. 1396a(a)(25)) to seek reimbursement from a prescription 
        drug plan, an MA-PD plan, or any other third party, of the 
        costs incurred by the State in providing prescription drug 
        coverage during 2006.

SEC. 13. PROTECTION FOR FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS FROM 
              PLAN TERMINATION PRIOR TO RECEIVING FUNCTIONING ACCESS IN 
              A NEW PART D PLAN.

    (a) In General.--Notwithstanding any other provision of law, the 
Secretary of Health and Human Services shall not terminate coverage of 
a full-benefit dual eligible individual (as defined in section 
1935(c)(6) of the Social Security Act (42 U.S.C. 1396v(c)(6)) unless 
such individual has functioning access to a prescription drug plan 
under part D or an MA-PD plan under part C of title XVIII of such Act. 
Such access shall include entry of the individual into the computer 
system of such plan and an acknowledgment by the plan that the 
individual is eligible for a full premium subsidy under section 1860D-
14 of such Act (42 U.S.C. 1395w-114).
    (b) Effective Date.--This section shall take effect on the date of 
enactment of this Act.
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