II 

116TH CONGRESS 

1ST SESSION S. 1404 

To amend the Public Health Service Act to address the increased burden 

that maintaining the health and hygiene of infants and toddlers places 

on families in need, the resultant adverse health effects on children 

and families, and the limited child care options available for infants 

and toddlers who lack sufficient diapers, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 9, 2019 

Ms. DUCKWORTH (for herself and Mr. CASEY) introduced the following bill; 

which was read twice and referred to the Committee on Finance 

A BILL 

To amend the Public Health Service Act to address the 

increased burden that maintaining the health and hygiene of infants and toddlers places on families in need, 

the resultant adverse health effects on children and families, and the limited child care options available for infants and toddlers who lack sufficient diapers, and for 

other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘End Diaper Need Act 

5 of 2019’’. 


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1 SEC. 2. DIAPER DISTRIBUTION DEMONSTRATION PROJECT. 

2 Part P of title III of the Public Health Service Act 

3 (42 U.S.C. 280g et seq.) is amended by adding at the end 

4 the following: 

5 ‘‘SEC. 399V–7. DIAPER DISTRIBUTION DEMONSTRATION 

6 PROGRAM. 

7 ‘‘(a) ESTABLISHMENT.—The Secretary shall make 

8 grants to assist eligible entities in conducting demonstra9 tion projects that implement and evaluate strategies to 

10 help low-income families address the diaper needs of in11 fants and toddlers. 

12 ‘‘(b) DESIGN OF PROGRAM.—In carrying out the 

13 grant program under subsection (a), the Secretary shall— 

14 ‘‘(1) consult with relevant stakeholders, includ15 ing agencies, professional associations, and nonprofit 

16 organizations, on the design of the program; and 

17 ‘‘(2) design the program in such a way that the 

18 program— 

19 ‘‘(A) decreases diaper need in low-income 

20 families and meets the unmet diaper needs of 

21 infants and toddlers in such families through— 

22 ‘‘(i) the distribution of free diapers 

23 and diapering supplies; 

24 ‘‘(ii) community outreach to assist in 

25 participation in existing diaper distribution 

26 programs; or 


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1 ‘‘(iii) improving access to diapers and 

2 diapering supplies as part of a comprehen3 sive service; and 

4 ‘‘(B) increases the ability of communities 

5 and low-income families in such communities to 

6 provide for the diaper needs of infants and tod7 dlers. 

8 ‘‘(c) ELIGIBLE ENTITIES.—To be eligible for a grant 

9 under this section, an entity shall— 

10 ‘‘(1) be a State or local governmental entity, an 

11 Indian tribe or tribal organization (as defined in sec12 tion 4 of the Indian Self-Determination and Edu13 cation Assistance Act), or a nonprofit organization 

14 described in section 501(c)(3) of the Internal Rev15 enue Code of 1986 and exempt from taxation under 

16 section 501(a) of such Code; 

17 ‘‘(2) have experience in the area of— 

18 ‘‘(A) community distributions of basic need 

19 services, including experience collecting, 

20 warehousing, and distributing basic necessities 

21 such as diapers, food, or menstrual products; 

22 ‘‘(B) child care; 

23 ‘‘(C) child development activities in low-in24 come communities; or 


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1 ‘‘(D) motherhood, fatherhood, or parent2 education efforts serving low-income parents of 

3 young children; 

4 ‘‘(3) demonstrate competency to implement a 

5 project, provide fiscal accountability, collect data, 

6 and prepare reports and other necessary documenta7 tion; 

8 ‘‘(4) demonstrate a willingness to share infor9 mation with researchers, practitioners, and other in10 terested parties; and 

11 ‘‘(5) submit to the Secretary a description of 

12 the design of the evaluation to be carried out under 

13 subsection (d)(2) and receive the Secretary’s ap14 proval of such design based on a determination that 

15 such design is rigorous and is likely to yield informa16 tion that is credible and useful to other States. 

17 ‘‘(d) USE OF FUNDS.—Amounts provided through a 

18 grant under this section shall be used to conduct a dem19 onstration project to implement and evaluate strategies to 

20 help low-income families to address the diaper needs of 

21 infants and toddlers, which may include any of the fol22 lowing: 

23 ‘‘(1) Paying for the purchase of diapers and 

24 diapering supplies and funding diaper distribution 

25 demonstration projects that serve low-income famiVerDate Sep 11 2014 22:58 May 21, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1404.IS S1404

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1 lies with one or more children 3 years of age or 

2 younger. 

3 ‘‘(2) Using not more than 25 percent of the 

4 funds received by the grantee under this section, 

5 evaluating the effect of activities under paragraph 

6 (1) on mitigating the health and developmental risks 

7 of unmet diaper need among infants, toddlers, and 

8 other family members in low-income families, includ9 ing the risks of diaper dermatitis, urinary tract in10 fections, and parental and child depression and anx11 iety. 

12 ‘‘(3) Integrating activities under paragraph (1) 

13 with other basic needs assistance programs serving 

14 eligible children and their families, including the fol15 lowing: 

16 ‘‘(A) Programs funded by the temporary 

17 assistance for needy families program under 

18 part A of title IV of the Social Security Act, in19 cluding the State maintenance of effort provi20 sions of such program. 

21 ‘‘(B) Programs designed to support the 

22 health of eligible children, such as the Chil23 dren’s Health Insurance Program under title 

24 XXI of the Social Security Act, the Medicaid 


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1 program under title XIX of such Act, or State2 funded health care programs. 

3 ‘‘(C) Programs funded through the special 

4 supplemental nutrition program for women, in5 fants, and children under section 17 of the 

6 Child Nutrition Act of 1966. 

7 ‘‘(D) Programs that offer early home vis8 iting services, including the nurse-family part9 nership programs and the Maternal, infant, and 

10 early childhood home visiting program (includ11 ing the Tribal home visiting program) under 

12 section 511 of the Social Security Act. 

13 ‘‘(E) Programs to provide improved and 

14 affordable access to child care, including pro15 grams funded through the Child Care and De16 velopment Fund, the temporary assistance for 

17 needy families program under part A of title IV 

18 of the Social Security Act, or a State-funded 

19 program. 

20 ‘‘(e) NO EFFECT ON OTHER PROGRAMS.—Any as21 sistance or benefits received by a family as a result of a 

22 project established pursuant to this section shall be dis23 regarded for purposes of determining the family’s eligi24 bility for, or amount of, benefits under any other Federal 

25 needs-based programs. 


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1 ‘‘(f) REPORTS.—As a condition of receiving a grant 

2 under this section for a fiscal year, the grantee shall sub3 mit to the Secretary, not later than 6 months after the 

4 end of the fiscal year, a report that specifies, by month 

5 and fiscal year, the following: 

6 ‘‘(1) The number of infants and toddlers and 

7 the age of the infants and toddlers who received as8 sistance from the grantee’s diaper distribution 

9 project. 

10 ‘‘(2) The number of families that have received 

11 assistance from the grantee’s diaper distribution 

12 project. 

13 ‘‘(3) The number of diapers, and the number of 

14 each type of diapering supply, distributed under the 

15 grantee’s diaper distribution project. 

16 ‘‘(4) The ZIP Code or ZIP Codes where the 

17 grantee distributed diapers and diaper supplies. 

18 ‘‘(5) The method or methods the grantee uses 

19 to distribute diapers and diapering supplies. 

20 ‘‘(6) Such other information as the Secretary 

21 may specify. 

22 ‘‘(g) EVALUATION.—The Secretary, in consultation 

23 with each grantee under this section, shall— 

24 ‘‘(1) not later than 2 years after the date of en25 actment of the End Diaper Need Act of 2019— 


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1 ‘‘(A) complete an evaluation of the effec2 tiveness of the program carried out pursuant to 

3 this section; 

4 ‘‘(B) submit to the relevant congressional 

5 committees a report on the results of such eval6 uation; and 

7 ‘‘(C) publish the results of the evaluation 

8 on the internet website of the Department of 

9 Health and Human Services; and 

10 ‘‘(2)(A) not later than 3 years after the date of 

11 enactment of the End Diaper Need Act of 2019, up12 date the evaluation required by paragraph (1)(A); 

13 and 

14 ‘‘(B) not later than 90 days after completion of 

15 the updated evaluation under subparagraph (A)— 

16 ‘‘(i) submit to the relevant congressional 

17 committees a report describing the results of 

18 such updated evaluation; and 

19 ‘‘(ii) publish the results of such evaluation 

20 on the internet website of the Department of 

21 Health and Human Services. 

22 ‘‘(h) DEFINITIONS.—In this section: 

23 ‘‘(1) DIAPER.—The term ‘diaper’ means an ab24 sorbent garment that— 


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1 ‘‘(A) is washable or disposable that may be 

2 worn by an infant or toddler who is not toilet3 trained; and 

4 ‘‘(B) if disposable— 

5 ‘‘(i) does not use any latex or common 

6 allergens; and 

7 ‘‘(ii) meets or exceeds the quality 

8 standards for diapers commercially avail9 able through retail sale in the following 

10 categories: 

11 ‘‘(I) Absorbency (with acceptable 

12 rates for first and second wetting). 

13 ‘‘(II) Waterproof outer cover. 

14 ‘‘(III) Flexible leg openings. 

15 ‘‘(IV) Refastening closures. 

16 ‘‘(2) DIAPERING SUPPLIES.—The term ‘dia17 pering supplies’ means items, including diaper wipes 

18 and diaper cream, necessary to ensure that a child 

19 using a diaper is properly cleaned and protected 

20 from diaper rash. 

21 ‘‘(3) ELIGIBLE CHILD.—The term ‘eligible 

22 child’ means a child who— 

23 ‘‘(A) has not attained 4 years of age; and 

24 ‘‘(B) is a member of a low-income family. 


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1 ‘‘(4) FEDERAL POVERTY LINE.—The term 

2 ‘Federal poverty line’ means the Federal poverty line 

3 as defined by the Office of Management and Budget 

4 and revised annually in accordance with section 

5 673(2) of the Omnibus Budget Reconciliation Act of 

6 1981 applicable to a family of the size involved. 

7 ‘‘(5) LOW-INCOME.—The term ‘low-income’, 

8 with respect to a family, means a family whose self9 certified income is not more than 200 percent of the 

10 Federal poverty line. 

11 ‘‘(i) AUTHORIZATION OF APPROPRIATIONS.— 

12 ‘‘(1) IN GENERAL.—To carry out this section, 

13 there is authorized to be appropriated $100,000,000 

14 for each of fiscal years 2020 through 2023. 

15 ‘‘(2) AVAILABILITY OF FUNDS.—Funds pro16 vided to a grantee under this section for a fiscal 

17 year may be expended by the grantee only in such 

18 fiscal year or the succeeding fiscal year.’’. 

19 SEC. 3. IMPROVING ACCESS TO DIAPERS FOR MEDICALLY 

20 COMPLEX CHILDREN. 

21 Section 1915(c) of the Social Security Act (42 U.S.C. 

22 1396n(c)) is amended by adding at the end the following 

23 new paragraph: 

24 ‘‘(11)(A) In the case of any waiver under this sub25 section that provides medical assistance to a medically 


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1 complex child who has been diagnosed with bowel or blad2 der incontinence, a bowel or bladder condition that causes 

3 excess urine or stool (such as short gut syndrome or diabe4 tes insipidus), or a severe skin condition that causes skin 

5 erosions (such as epidermolysis bullosa), such medical as6 sistance shall include, for the duration of the waiver, the 

7 provision of 200 medically necessary diapers per month 

8 and diapering supplies. Such medical assistance may in9 clude the provision of medically necessary diapers in 

10 amounts greater than 200 if a licensed health care pro11 vider (such as a physician, nurse practitioner, or physician 

12 assistant) specifies that such greater amounts are nec13 essary for such medically complex child. 

14 ‘‘(B) For purposes of this paragraph— 

15 ‘‘(i) the term ‘medically complex child’ means 

16 an individual who is at least three years of age and 

17 for whom a licensed health care provider has pro18 vided a diagnosis of one or more significant chronic 

19 conditions; 

20 ‘‘(ii) the term ‘medically necessary diaper’ 

21 means an absorbent garment that is— 

22 ‘‘(I) washable or disposable; and 

23 ‘‘(II) worn by a medically complex child 

24 who has been diagnosed with a condition de25 scribed in subparagraph (A) and needs such 


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1 garment to correct or ameliorate such condition; 

2 and 

3 ‘‘(iii) the term ‘diapering supplies’ means items, 

4 including diaper wipes and diaper creams, necessary 

5 to ensure that a medically complex child who has 

6 been diagnosed with a condition described in sub7 paragraph (A) and uses a medically necessary diaper 

8 is properly cleaned and protected from diaper rash.’’. 

9 SEC. 4. INCLUSION OF DIAPERS AND DIAPERING SUPPLIES 

10 AS QUALIFIED MEDICAL EXPENSES. 

11 (a) HEALTH SAVINGS ACCOUNTS.—Section 

12 223(d)(2) of the Internal Revenue Code of 1986 is amend13 ed— 

14 (1) by adding at the end of subparagraph (A) 

15 the following: ‘‘For purposes of this subparagraph, 

16 amounts paid for medically necessary diapers and 

17 diapering supplies shall be treated as paid for med18 ical care.’’; and 

19 (2) by adding at the end the following new sub20 paragraph: 

21 ‘‘(D) MEDICALLY NECESSARY DIAPERS

22 AND DIAPERING SUPPLIES.—For purposes of 

23 this paragraph— 

24 ‘‘(i) MEDICALLY NECESSARY DIA25 PERS.—The term ‘medically necessary diaVerDate Sep 11 2014 22:58 May 21, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1404.IS S1404

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1 per’ means an absorbent garment which is 

2 washable or disposable and which is worn, 

3 by an individual who has attained 3 years 

4 of age, because of medical necessity, to 

5 serve a preventative medical purpose, or to 

6 correct or ameliorate defects or physical or 

7 mental illnesses or conditions diagnosed by 

8 a licensed health care provider. 

9 ‘‘(ii) DIAPERING SUPPLIES.—The 

10 term ‘diapering supplies’ means items, in11 cluding diaper wipes and diaper creams, 

12 necessary to ensure that an individual 

13 wearing medically necessary diapers is 

14 properly cleaned and protected from diaper 

15 rash.’’. 

16 (b) ARCHER MSAS.—Section 220(d)(2)(A) of the In17 ternal Revenue Code of 1986 is amended by adding at the 

18 end the following: ‘‘For purposes of this subparagraph, 

19 amounts paid for medically necessary diapers and dia20 pering supplies (as such terms are defined in section 

21 223(d)(2)(D)) shall be treated as paid for medical care.’’. 

22 (c) HEALTH FLEXIBLE SPENDING ARRANGEMENTS

23 AND HEALTH REIMBURSEMENT ARRANGEMENTS.—Sec24 tion 106 of the Internal Revenue Code of 1986 is amended 

25 by adding at the end the following new subsection: 


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1 ‘‘(h) REIMBURSEMENTS FOR MEDICALLY NEC2 ESSARY DIAPERS AND DIAPERING SUPPLIES.—For pur3 poses of this section and section 105, expenses incurred 

4 for medically necessary diapers and diapering supplies (as 

5 such terms are defined in section 223(d)(2)(D)) shall be 

6 treated as incurred for medical care.’’. 

7 (d) EFFECTIVE DATES.— 

8 (1) DISTRIBUTIONS FROM CERTAIN AC9 COUNTS.—The amendments made by subsections (a) 

10 and (b) shall apply to amounts paid after December 

11 31, 2020. 

12 (2) REIMBURSEMENTS.—The amendment made 

13 by subsection (c) shall apply to expenses incurred 

14 after December 31, 2020. 

Æ 


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