II 

108TH CONGRESS 

2D SESSION S. 2730

To amend titles V, XVIII, and XIX of the Social Security Act to promote 

cessation of tobacco use under the medicare program, the medicaid 

program, and the maternal and child health services block grant program. 

IN THE SENATE OF THE UNITED STATES 

JULY 22, 2004

Mr. DURBIN introduced the following bill; which was read twice and referred 

to the Committee on Finance 

A BILL

To amend titles V, XVIII, and XIX of the Social Security 

Act to promote cessation of tobacco use under the medicare program, the medicaid program, and the maternal 

and child health services block grant program.

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 ‘‘Medicare, Medicaid, 

5 and MCH Tobacco Cessation Promotion Act of 2004’’. 
2

•S 2730 IS 

1 SEC. 2. MEDICARE COVERAGE OF COUNSELING FOR CES2 SATION OF TOBACCO USE. 

3 (a) COVERAGE.—Section 1861(s)(2) of the Social Se4 curity Act (42 U.S.C. 1395x(s)(2)) is amended—

5 (1) in subparagraph (Y), by striking ‘‘and’’ at 

6 the end; 

7 (2) in subparagraph (Z), by inserting ‘‘and’’ at 

8 the end; and 

9 (3) by adding at the end the following new sub10 paragraph: 

11 ‘‘(AA) counseling for cessation of tobacco use 

12 (as defined in subsection (bbb));’’. 

13 (b) SERVICES DESCRIBED.—Section 1861 of the So14 cial Security Act (42 U.S.C. 1395x) is amended by adding 

15 at the end the following new subsection: 

16 ‘‘Counseling for Cessation of Tobacco Use 

17 ‘‘(bbb)(1)(A) Subject to subparagraph (B), the term 

18 ‘counseling for cessation of tobacco use’ means diagnostic, 

19 therapy, and counseling services for cessation of tobacco 

20 use for individuals who use tobacco products or who are 

21 being treated for tobacco use which are furnished—

22 ‘‘(i) by or under the supervision of a physician; 

23 ‘‘(ii) by a practitioner described in clause (i), 

24 (iii), (iv), (v) or (vi) of section 1842(b)(18)(C); or 

25 ‘‘(iii) by a licensed tobacco cessation counselor 

26 (as defined in paragraph (2)). 
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•S 2730 IS 

1 ‘‘(B) Such term is limited to—

2 ‘‘(i) services recommended in ‘Treating Tobacco 

3 Use and Dependence: A Clinical Practice Guideline’, 

4 published by the Public Health Service in June 

5 2000, or any subsequent modification of such Guide6 line; and 

7 ‘‘(ii) such other services that the Secretary rec8 ognizes to be effective. 

9 ‘‘(2) In this subsection, the term ‘licensed tobacco 

10 cessation counselor’ means a tobacco cessation counselor 

11 who—

12 ‘‘(A) is licensed as such by the State (or in a 

13 State which does not license tobacco cessation coun14 selors as such, is legally authorized to perform the 

15 services of a tobacco cessation counselor in the juris16 diction in which the counselor performs such serv17 ices); and 

18 ‘‘(B) meets uniform minimum standards relat19 ing to basic knowledge, qualification training, con20 tinuing education, and documentation that are es21 tablished by the Secretary for purposes of this sub22 section.’’. 

23 (c) PAYMENT AND ELIMINATION OF COST-SHARING

24 FOR COUNSELING FOR CESSATION OF TOBACCO USE.—
4

•S 2730 IS 

1 (1) PAYMENT AND ELIMINATION OF COINSUR2 ANCE.—Section 1833(a)(1) of the Social Security 

3 Act (42 U.S.C. 1395l(a)(1)) is amended—

4 (A) by striking ‘‘and’’ before ‘‘(V)’’; and 

5 (B) by inserting before the semicolon at 

6 the end the following: ‘‘, and (W) with respect 

7 to counseling for cessation of tobacco use (as 

8 defined in section 1861(ww)), the amount paid 

9 shall be 100 percent of the lesser of the actual 

10 charge for the service or the amount determined 

11 by a fee schedule established by the Secretary 

12 for purposes of this subparagraph’’. 

13 (2) ELIMINATION OF COINSURANCE IN OUT14 PATIENT HOSPITAL SETTINGS.—

15 (A) EXCLUSION FROM OPD FEE SCHED16 ULE.—Section 1833(t)(1)(B)(iv) of the Social 

17 Security Act (42 U.S.C. 1395l(t)(1)(B)(iv)) is 

18 amended by striking ‘‘and diagnostic mammog19 raphy’’ and inserting ‘‘, diagnostic mammog20 raphy, or counseling for cessation of tobacco 

21 use (as defined in section 1861(bbb))’’. 

22 (B) CONFORMING AMENDMENTS.—Section 

23 1833(a)(2) of the Social Security Act (42 

24 U.S.C. 1395l(a)(2)) is amended—
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•S 2730 IS 

1 (i) in subparagraph (F), by striking 

2 ‘‘and’’ after the semicolon at the end; 

3 (ii) in subparagraph (G)(ii), by strik4 ing the comma at the end and inserting ‘‘; 

5 and’’; and 

6 (iii) by inserting after subparagraph 

7 (G)(ii) the following new subparagraph: 

8 ‘‘(H) with respect to counseling for ces9 sation of tobacco use (as defined in section 

10 1861(bbb)) furnished by an outpatient depart11 ment of a hospital, the amount determined 

12 under paragraph (1)(W),’’. 

13 (3) ELIMINATION OF DEDUCTIBLE.—The first 

14 sentence of section 1833(b) of the Social Security 

15 Act (42 U.S.C. 1395l(b)) is amended—

16 (A) by striking ‘‘and’’ before ‘‘(6)’’; and 

17 (B) by inserting before the period the fol18 lowing: ‘‘, and (7) such deductible shall not 

19 apply with respect to counseling for cessation of 

20 tobacco use (as defined in section 1861(bbb))’’. 

21 (d) APPLICATION OF LIMITS ON BILLING.—Section 

22 1842(b)(18)(C) of the Social Security Act (42 U.S.C. 

23 1395u(b)(18)(C)) is amended by adding at the end the 

24 following new clause: 
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•S 2730 IS 

1 ‘‘(vii) A licensed tobacco cessation counselor (as 

2 defined in section 1861(bbb)(2)).’’. 

3 (e) INCLUSION AS PART OF INITIAL PREVENTIVE

4 PHYSICAL EXAMINATION.—Section 1861(ww)(2) of the 

5 Social Security Act (42 U.S.C. 1395x(ww)(2)) is amended 

6 by adding at the end the following new subparagraph:

7 ‘‘(L) Counseling for cessation of tobacco use (as 

8 defined in subsection (bbb)).’’. 

9 (f) EFFECTIVE DATE.—The amendments made by 

10 this section shall apply to services furnished on or after 

11 the date that is 1 year after the date of enactment of this 

12 Act. 

13 SEC. 3. MEDICARE COVERAGE OF TOBACCO CESSATION 

14 PHARMACOTHERAPY. 

15 (a) INCLUSION OF TOBACCO CESSATION AGENTS AS

16 COVERED DRUGS.—Section 1860D–2(e)(1) of the Social 

17 Security Act (42 U.S.C. 1395w–102(e)(1)) is amended—

18 (1) in subparagraph (A), by striking ‘‘or’’ after 

19 the semicolon at the end; 

20 (2) in subparagraph (B), by striking the comma 

21 at the end and inserting ‘‘; or’’; and 

22 (3) by inserting after subparagraph (B) the fol23 lowing new subparagraph: 

24 ‘‘(C) any agent approved by the Food and 

25 Drug Administration for purposes of promoting, 
7

•S 2730 IS 

1 and when used to promote, tobacco cessation 

2 that may be dispensed without a prescription 

3 (commonly referred to as an ‘over-the-counter’ 

4 drug), but only if such an agent is prescribed 

5 by a physician (or other person authorized to 

6 prescribe under State law),’’. 

7 (b) ESTABLISHMENT OF CATEGORIES AND CLASSES

8 CONSISTING OF TOBACCO CESSATION AGENTS.—Section 

9 1860D–4(b)(3)(C) of the Social Security Act (42 U.S.C. 

10 1395w–104(b)(3)(C)) is amended by adding at the end the 

11 following new clause: 

12 ‘‘(iv) CATEGORIES AND CLASSES OF

13 TOBACCO CESSATION AGENTS.—There 

14 shall be a therapeutic category or class of 

15 covered part D drugs consisting of agents 

16 approved by the Food and Drug Adminis17 tration for cessation of tobacco use. Such 

18 category or class shall include tobacco ces19 sation agents described in subparagraphs 

20 (A) and (C) of section 1860D–2(e)(1).’’. 

21 (c) CONFORMING AMENDMENT.—Section 1860D–

22 2(e)(2)(A) of the Social Security Act (42 U.S.C. 1395w–

23 102(e)(2)(A)) is amended by striking ‘‘, other than sub24 paragraph (E) of such section (relating to smoking ces25 sation agents),’’. 
8

•S 2730 IS 

1 SEC. 4. PROMOTING CESSATION OF TOBACCO USE UNDER 

2 THE MEDICAID PROGRAM. 

3 (a) COVERAGE OF TOBACCO CESSATION COUN4 SELING SERVICES.—

5 (1) IN GENERAL.—Section 1905(a) of the So6 cial Security Act (42 U.S.C. 1396d(a)) is amend7 ed— 

8 (A) in paragraph (26), by striking ‘‘and’’ 

9 after the semicolon at the end; 

10 (B) by redesignating paragraph (27) as 

11 paragraph (28); and 

12 (C) by inserting after paragraph (26) the 

13 following new paragraph: 

14 ‘‘(27) at the option of the State, counseling for 

15 cessation of tobacco use (as defined in section 

16 1861(bbb)); and’’. 

17 (2) CONFORMING AMENDMENT.—Section 

18 1902(a)(10)(C)(iv) of the Social Security Act (42 

19 U.S.C. 1396a(a)(10)(C)(iv)) is amended by inserting 

20 ‘‘or (27)’’ after ‘‘(24)’’. 

21 (b) ELIMINATION OF OPTIONAL EXCLUSION FROM

22 MEDICAID PRESCRIPTION DRUG COVERAGE FOR TO23 BACCO CESSATION MEDICATIONS.—Section 1927(d)(2) of 

24 the Social Security Act (42 U.S.C. 1396r–8(d)(2)) is 

25 amended—

26 (1) by striking subparagraph (E); 
9

•S 2730 IS 

1 (2) by redesignating subparagraphs (F) 

2 through (J) as subparagraphs (E) through (I), re3 spectively; and 

4 (3) in subparagraph (F) (as redesignated by 

5 paragraph (2)), by inserting before the period at the 

6 end the following: ‘‘, other than agents approved by 

7 the Food and Drug Administration for purposes of 

8 promoting, and when used to promote, tobacco ces9 sation’’. 

10 (c) REMOVAL OF COST-SHARING FOR TOBACCO CES11 SATION COUNSELING SERVICES AND MEDICATIONS.—

12 Subsections (a)(2) and (b)(2) of section 1916 of the Social 

13 Security Act (42 U.S.C. 1396o) are each amended—

14 (1) in subparagraph (D), by striking ‘‘or’’ after 

15 the comma at the end; 

16 (2) in subparagraph (E), by striking ‘‘; and’’ 

17 and inserting ‘‘, or’’; and 

18 (3) by adding at the end the following new sub19 paragraph: 

20 ‘‘(F)(i) counseling for cessation of tobacco 

21 use described in section 1905(a)(27); or 

22 ‘‘(ii) covered outpatient drugs (as defined 

23 in paragraph (2) of section 1927(k), and in24 cluding nonprescription drugs described in 

25 paragraph (4) of such section) that are pre-
10

•S 2730 IS 

1 scribed for purposes of promoting, and when 

2 used to promote, tobacco cessation; and’’. 

3 (d) INCREASED FMAP FOR TOBACCO CESSATION

4 COUNSELING SERVICES AND MEDICATIONS.—The first 

5 sentence of section 1905(b) of the Social Security Act (42 

6 U.S.C. 1396d(b)) is amended—

7 (1) by striking ‘‘and’’ before ‘‘(4)’’; and 

8 (2) by inserting before the period the following: 

9 ‘‘, and (5) for purposes of this title, the Federal 

10 medical assistance percentage shall be 80 percent 

11 with respect to amounts expended as medical assist12 ance for counseling for cessation of tobacco use de13 scribed in subsection (a)(27) and for covered out14 patient drugs (as defined in paragraph (2) of section 

15 1927(k), and including nonprescription drugs de16 scribed in paragraph (4) of such section) that are 

17 prescribed for purposes of promoting, and when used 

18 to promote, tobacco cessation’’. 

19 (e) EFFECTIVE DATE.—The amendments made by 

20 this section shall apply to services furnished on or after 

21 the date that is 1 year after the date of enactment of this 

22 Act. 
11

•S 2730 IS 

1 SEC. 5. PROMOTING CESSATION OF TOBACCO USE UNDER 

2 THE MATERNAL AND CHILD HEALTH SERV3 ICES BLOCK GRANT PROGRAM. 

4 (a) QUALITY MATERNAL AND CHILD HEALTH SERV5 ICES INCLUDES TOBACCO CESSATION COUNSELING AND

6 MEDICATIONS.—Section 501 of the Social Security Act 

7 (42 U.S.C. 701) is amended by adding at the end the fol8 lowing new subsection: 

9 ‘‘(c) For purposes of this title, quality maternal and 

10 child health services include the following: 

11 ‘‘(1) Counseling for cessation of tobacco use (as 

12 defined in section 1861(bbb)). 

13 ‘‘(2) The encouragement of the prescribing and 

14 use of agents approved by the Food and Drug Ad15 ministration for purposes of tobacco cessation. 

16 ‘‘(3) The inclusion of messages that discourage 

17 tobacco use in health promotion counseling.’’. 

18 (b) EFFECTIVE DATE.—The amendment made by 

19 subsection (a) shall take effect on the date that is 1 year 

20 after the date of enactment of this Act.

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