LEGISLATIVE UPDATE – NOVEMBER 2009

High Speed Rail

The Federal Railroad Administration (FRA) must figure out how the $8 million stimulus money allocated in the Recovery Act will be distributed. They have received a total of $57 billion in applications for these funds from various states. The FRA had planned to distribute the funds in October, but they are taking a few more months to make sure the monies are invested in the right places. FRA Administrator Joseph Szabo stated: “We want to pick projects that will be successful; success breeds success.” He believes that high-speed rail lines will bring balance to the U.S. transportation system and allow airlines to focus on more lucrative long routes rather than short runs between cities that could be served by rail.

Virgina Railway Awards Contract to Foreign Rail Company

Virginia Railway Express (VRE) recently ended its 17-year relationship with Amtrak when a five-year, $85.7 million contract was awarded to Keolis Rail Services America, which is the U.S. subsidiary of a company based in France. The VRE Operations Board approved the contract on October 16 and it will take effect on July 1, 2010, when Amtrak’s contract expires. Of the four companies that applied for the operations and maintenance contract, VRE officials felt that the Keolis proposal was the strongest and most cost effective. VRE spokesman Mark Roeber stated that the roughly 80 Amtrak employees who work with VRE can remain on the job and retain their pay and benefits. Amtrak challenged VRE’s decision, stating that VRE’s request for bid had stated that 80 percent of the score would be based on an applicant’s “performance and experience,” and that Keolis has no experience operating under U.S. rail safety and security regulations.

Hours of Service Interpretations

The BLET and UTU have asked the FRA to reconsider its interpretation portions of the interim statement of agency policy and interpretation with regard to the hours of service laws enacted as a result of the passage of the Rail Safety Improvement Act of 2008 (RSIA). The RSIA amended the statutory off-duty period be 10 consecutive hours, with the exception of intercity passenger and commuter service.

Under the existing FRA method (the “fresh start look back” analysis), a railroad is required to look back at the last 24 hours of the employee’s on-duty time and determine if that employee had 10 hours of undisturbed rest during that 24-hour period. If yes, then the employee can work for 12 hours. However, this method, which has been in effect for almost 40 years, has been replaced with the “continuous look back analysis,” which requires the railroads to look back at every moment during a duty tour to determine if the employee has had 10 consecutive hours of undisturbed rest during the 24 hours that precede that particular moment. “This would prohibit an employee from working the full 12 hours that are permitted by the law if they have more than a two-hour call, thereby adversely impacting the employee’s earnings as well as interfering with the railroad’s need to maximize employee productivity.

The “continuous look back” approach could also result in employees being forced to remain at away-from-home terminals rather than returning home, which affects family life and imposes greater costs on the railroads. The BLET and UTU assert that a better solution would be to require a 10-hour call, which would permit 12-hour on-duty shifts. In a joint statement signed by BLET Acting National President Paul Sorrow and UTU International President Mike Futhey, the FRA is asked to “reaffirm the ‘fresh-start look back’ analysis, which has served both the industry and the safety of its employees and the public, and reject the proposed “continuous look back.” To read the joint BLET/UTU submission, go to: http://www.ble-t.org/pr/pdf/continuouslookback.pdf.

National Mediation Board Making Progress on Backlog of Cases

This last year, the National Mediation Board (NMB) closed the largest number of cases since the year 2000, and ended FY 2009 on September 30 with the lowest number of pending cases in the agency’s history. The board has received supplemental funds during the past two years which helped to reduce the backlog of 5,551 cases pending as of September 30, 2007, to 1,030 cases. At the end of FY 2009, 75 percent of the NMB’s cases were two years old or less.

Video Monitoring in Metrolink Locomotive Cabs

In response to the fatal Metrolink collision last September in Chatsworth, California, video cameras have been installed in all 52 of Metrolink’s locomotives, at a cost of $1 million. The purpose is to ensure that engineers comply with bans on cell phones, text messaging, and unauthorized passengers.

The BLET has filed lawsuits in federal and state courts in California in an attempt to halt Metrolink from using the recording devices. The union states that the installation of cameras is an invasion of privacy and violates federal wire tap laws as well as the Federal Rail Safety Act of 1970 and the Railway Labor Act. The cameras were installed in violation of the railroad’s collective bargaining agreement with the BLET. Acting President Paul Sorrow states that “A cell phone jamming device would be more effective in prevention, less costly for taxpayers, and less invasive of the privacy of our members.” This system would block all incoming and outgoing cell phone calls and texts, and can alert others of the attempted cell phone use from the locomotive cab.

Railroad Antitrust Legislation

Senator Jay Rockefeller (D-W.Va.), Chairman of the Commerce, Science, and Transportation Committee, stated in early October that they are still working on a rail regulatory reform bill in the Senate. He and his staff have been meeting for months with railroads and shippers to come up with changes that are acceptable to both sides. The bill is expected to instruct the Surface Transportation Board (STB) to give more weight to shippers’ complaints about rail rates and service disputes, and to add more STB staff.

Medicare News:

I received the following announcement from Gary Faley, National Legislative Director for The National Association of Retired and Veteran Railway Employees (NARVRE) on November 9, 2009. He attained the information from the non-political and non-profit Kaiser Family Foundation.

As Medicare Advantage and Drug Benefit Open Enrollment Period nears, new resources analyze 2010 options, premiums and gap coverage for beneficiaries. Beginning November 15, Medicare’s 46 million beneficiaries will have an opportunity to sign up for coverage under a Medicare Advantage plan or a Medicare stand-alone Part D drug plan, or change plans if they are already enrolled in either type of plan. The Kaiser Family Foundation is issuing a collection of new and updated analyses examining critical elements of the private plan options available to Medicare beneficiaries in 2010. 

Medicare beneficiaries continue to have a wide range of options to choose from, with an average of 33 Medicare Advantage plans and 46 stand-alone Part D drug plans available to seniors and disabled Medicare beneficiaries.

For both types of plans, beneficiaries could face substantial increases in their premiums if they stay in the same plan for 2010.  For example, for Medicare Advantage enrollees who stay in the same plan in 2010, monthly premiums will increase by 32 percent on average, with a steeper 78 percent average increase for enrollees in private fee-for-service plans who do not switch plans.

Among the stand-alone Part D plans, relatively few help beneficiaries with the costs of their medications while in the coverage gap, or “doughnut hole,” and those that do usually cover only generics, or a small number of brand-name drugs.  One third of the few plans that offer gap coverage charge more for generic drugs in the gap than they do for the same drugs in the initial coverage period.  Health reform legislation now pending in both chambers of Congress includes provisions aimed at easing the potential impact of the coverage gap on Medicare beneficiaries.

Kaiser’s new and update resources include:

* Medicare Advantage 2010 Data Spotlight:  Plan Availability and Premiums, http://www.kff.org/medicare/8007.cfm, authored by a team of researchers at  Mathematica Policy Research Inc. and the Kaiser Family Foundation.

* Medicare Part D 2010 Data Spotlight: The Coverage Gap, http://www.kff.org/medicare/8008.cfm, authored by a team of researchers at Georgetown University, NORC and the Kaiser Family Foundation. The team also has updated Medicare Part D Spotlight: Part D Plan Availability in 2010 and Key Changes Since 2006, http://www.kff.org/medicare/7986.cfm, released initially last month.

* Updated fact sheets on Medicare Advantage, http://www.kff.org/medicare/2052.cfm, and on the Medicare Prescription Drug Benefit, http://www.kff.org/medicare/7044.cfm.

These new and updated resources build on the Foundation’s wide range of reports, analysis and other resources related to the Medicare drug benefit available online at http://www.kff.org/medicare/rxdrugbenefit.cfm.

For additional information, please contact: Craig Palosky at (202) 347-5270 or cpalosky@kff.org