[Congressional Record Volume 142, Number 135 (Thursday, September 26, 1996)]
[Senate]
[Pages S11412-S11414]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     ACCESS TO PATIENT INFORMATION

  Mr. WYDEN. Mr. President, I rise to take just a few moments to talk a 
bit about the gag clause that involves the right of patients across 
this country to know all the information about their medical condition 
and the treatments that are appropriate and ought to be made available. 
I wish to discuss it in the context of the pipeline safety bill.
  In the beginning. I particularly wish to thank the bipartisan 
leadership of Senator Daschle and Senator Lott who have worked closely 
with us on this also, the continued bipartisan effort of Senators 
Kennedy and Kyl who, in particular, have worked very hard to try to 
address this legislation in a responsible way and to demonstrate the 
bipartisan spirit of this effort. It really all began with Dr. Ganske 
of Iowa and Congressman Ed Markey on the House side, where both pursued 
this effort in a bipartisan way. Senators Lott and Daschle, Kyl, 
Kennedy, and I and others have spent several days working to reach an 
agreement with respect to the legislation that I originally sought to 
offer several weeks ago with respect to the patient's right to know. 
These negotiations have been lengthy, they certainly have been 
difficult, and they are not yet concluded.
  Because there has been much good faith on the part of a number of 
Members on both sides of the aisle, on both the Democratic and 
Republican side of the aisle, I think it is fair to say that we have 
made a considerable amount of progress, and I want to make it very 
clear to the Senate I intend to keep up this fight throughout the 
session because it is so fundamentally important that the patients of 
this country in the fastest growing sector of American health care, the 
health management organization sector, have all the information they 
need in order to make choices about their health care.
  I do think it is important to say tonight that I do not think it is 
appropriate to withhold any longer a vote on the pipeline safety bill 
as these negotiations go forward. The pipeline safety bill, in my view, 
is a good bill. It is an important bill. It, too, has bipartisan 
support as a result of a great deal of effort, and I would like to put 
in a special word for the efforts of Senator Exon,  of Nebraska, who 
has labored for a long time on this measure. He is, of course, retiring 
from the Senate. His leaving will be much felt, and it seems 
appropriate that this important and good bill to protect the safety of 
our energy pipelines go forward. And so I want to make it clear to the 
Senate tonight I do not think the Senate should withhold a vote on the 
pipeline safety bill any further as the negotiations go forward with 
respect to the gag clause in health maintenance organizations that is 
so often found in plans around this country.
  If I might, I wish to take a few minutes to explain why this issue is 
so important in American health care. Most people say to themselves, 
what is a gag clause? What does this have to do with me? Why is it so 
important that it has generated all this attention in the Senate?
  A gag clause is something that really keeps the patients in our 
country from full and complete information about the medical condition 
and the treatments that are available to them. I think it is fair to 
say--I know the Senator from Utah, Mr. Bennett, has done a lot of work 
in the health care field--reasonable people have differences of opinion 
with respect to the health care issue. People can differ about the role 
of the Federal Government; they can differ about the role of the 
private sector, but it seems to me absolutely indisputable that 
patients ought to have access to all the information--not half of it, 
not three-quarters, but all the information--with respect to their 
medical condition.

  What is happening around the country is some managed care plans--this 
is not all of them. There is good managed care in this country. My part 
of the Nation pioneered managed care. Too often managed care plans, the 
scofflaws in the managed care field are cutting corners, and so what 
they do either in writing or through a pattern of oral communication, 
these managed care plans tell their doctors, ``Don't fill those 
patients in on all the information about their medical condition.'' Or 
they say, ``There are some treatments that may be expensive and we 
think you shouldn't be telling everybody about them.'' Or maybe they 
say, ``We're watching the referrals that you're making and if you make 
a lot of referrals outside the health maintenance organization to other 
physicians, other providers, we're going to watch that. If you make too 
many of them, we're going to consider getting some other people to 
deliver our health services.''
  So these are gag clauses in the literal sense. They get in the way of 
the doctor-patient relationship and either in writing in the contract 
established by the health maintenance organization or orally through a 
pattern of communications between the health maintenance plan and the 
physician, the doctor is told in very blunt, straightforward terms, 
``Look, you're not supposed to tell those patients all the facts about 
their medical condition or all the treatments that might be available 
to them.'' I think these restrictions on access to patient information

[[Page S11413]]

care turn American health care on its head. The Hippocratic oath, for 
example, to physicians starts with, ``First do no harm.''
  If you have these gag clauses, essentially, instead of ``First do no 
harm,'' in these health maintenance organizations the charge is, first, 
think about the bottom line. Think about the financial condition of the 
plan and that maybe the plan will have a little less revenue if 
physicians really tell their patients what is going on and tell them 
about referrals and the like. Trust, in my view, is the basis of the 
doctor-patient relationship. Without that trust, physicians cannot 
perform adequately as caregivers. The patients get shortchanged, in 
terms of the quality of their health care. And I think that, when you 
limit straightforward and complete information between physicians and 
their patients, what you are doing is prescribing bad medicine.
  Mr. President, there are a number of provisions that are central to 
this debate and there are two or three that have consumed most of our 
attention over the last few days, in terms of trying to work this 
legislation out on a bipartisan basis. Let me say, especially Senator 
Kyl has done yeoman work, in terms of trying to bring all sides 
together. He has led the effort on the Republican side. He has worked 
particularly hard with me on a couple of the provisions that I would 
like to take just a minute or two of the Senate's time to discuss this 
evening.
  The first is with respect to enforcement provisions in this bill. 
Senator Kyl and I both share the view that the States should take the 
leadership role with respect to enforcement of these gag clause 
provisions. There is precedent for this in the medigap legislation, the 
legislation to protect older people from ripoffs in the supplemental 
policies sold in addition to their Medicare. We have looked at other 
approaches. In particular, the enforcement provisions that the Senate 
came together on in a bipartisan way in the maternity legislation 
looked attractive, but Senator Kyl and I have spent a special effort, 
trying to work out the provisions with respect to ensuring that the 
States are given the lead in terms of enforcing the anti-gag clause 
legislation. I think we have made considerable progress. All Senator 
ought to know there is bipartisan interest in not having some Federal 
micromanagement, run-from-Washington kind of operation with respect to 
the enforcement provisions in this gag clause legislation.
  The second area that has consumed considerable amount of time in our 
discussions involves matters of religious and moral expression. Here, 
the issue, as it does so often in the U.S. Senate, involves especially 
abortion. Senator Kyl and I have worked hard to try to ensure that an 
individual physician who has religious or moral views with respect to 
abortion would not be required to express those views in a way that was 
contrary to deeply held religious or moral principles that that 
physician had. At the same time, I think it is understood that, if this 
is not carefully done, such provisions could become a new form of 
institutional gag, which would limit communication between doctors and 
patients. Senator Kyl and I have, I think, been able to bring about an 
approach that does allow an individual physician who, for religious or 
moral reasons, desires not to discuss abortion issues to be able to do 
that. I think we will be able to resolve that in a way that is good 
health policy, is fair, and bipartisan.
  Now, the continuing resolution, of course, is before us. The Senate 
will be dealing with this in the hours ahead. Some may consider it will 
be the days ahead--but certainly the hours ahead. I want the Senate to 
understand that I think, with respect to the future of American health 
care, making sure that patients have access to all information about 
their medical condition and the treatments that are available to them 
is about as important as it gets.

  The Senator from Vermont also has done a great deal of work in the 
health care area over the years. We have had a chance to work together 
on ERISA legislation, and a variety of other matters.
  I come back to the proposition that there are a lot of areas where 
people can differ in the health field. Health is a complex riddle by 
anybody's calculus. And these debates about the role of the Federal 
Government and the role of the private sector--these are areas where 
reasonable people do have differences of opinion. What I think is 
indisputable, however, is the importance of patients getting all the 
facts and the patients being in a position to know all of the matters 
that relate to their getting the best treatment for them, given the 
kind of medical problems that they face.
  So, this ultimately, this question of how to deal with this issue, is 
not an issue about abortion. No abortions are being performed or 
referrals made. It is not a question of Federal micromanagement, 
because the States are put clearly in the lead position with respect to 
enforcement. It is not a regulatory paradigm, in the sense that Members 
may have different views with respect to the type of approach. Whether 
it is a medical savings account approach that some have favored, or 
single-payer approach that some have favored, this bill does not touch 
any of those issues. This bill gets to one question and that is: As we 
look to the decisions involving 21st century health care, are we going 
to put patients in the driver's seat with respect to their own health 
care so they can get information?
  It seems almost absurd to me that, at a time when we look at how 
medical information may be exchanged in the future using the Internet, 
so that folks in rural Vermont and rural Oregon can tap all these 
exciting new technologies so as to get more information about their 
health care and about the treatments available to them, it seems almost 
fundamental to say that, when a patient and a doctor or a nurse or 
chiropractor at a health plan sits down with a patient and that 
patient's family, that provider, that doctor or nurse or chiropractor, 
is in a position to say to the family, ``Look, here are all the facts 
that you and your loved ones face with respect to your medical 
condition. You may want to pursue this particular treatment. Perhaps I 
should refer you to Dr. A or Dr. B, who is outside the health plan.'' 
But whatever the ultimate choice of the consumer is at that point, at 
least the consumer can make it in an informed way.
  Right now, while there is good managed care in our country, and I 
have seen it in my part of the United States, in the Pacific Northwest, 
too often there have been managed care plans that do not meet those 
high standards. There are plans that have told their physicians, their 
nurses, their chiropractors and others: We are going to be watching 
you, with respect to making referrals.
  We want you to know, we are looking over your shoulder with respect 
to expensive treatments, and those kinds of gag provisions are getting 
in the way of the doctor-patient relationship, and the trust that is so 
important.
  So I want it understood, Mr. President, that I am going to use every 
ounce of my strength, working with Senator Kyl and Senators on both 
sides of the aisle, to make sure that this legislation is part of the 
continuing resolution.
  I want to, again, let the Senate know that we are very appreciative 
of Senators Daschle and Lott and the bipartisan leadership that has 
worked cooperatively with us. We want to make sure that this 
legislation gets into the continuing resolution.
  Managed care is the fastest growing part of American health care. 
Both Democrats and Republicans throughout this Congress have looked to 
managed care repeatedly as the discussions have gone forward on 
Medicare and other issues. So it is important that patients in these 
plans get all the facts, get all the information, and we are going to 
go forward in good faith, as we have done over the last week.
  Senator Kyl and I have put a big chunk of our waking hours into this 
effort to try to do it in a bipartisan way. I believe we can get it 
done. And in the spirit of the progress that has been made and to 
facilitate the passage of other important legislation, I would like to 
make it clear that I believe that the Senate should no longer withhold 
a vote on the pipeline safety bill.
  Mr. President, I yield the floor.
  Mr. LOTT addressed the Chair.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. LOTT. Thank you, Mr. President. Mr. President, I would like to 
express

[[Page S11414]]

my appreciation to the distinguished Senator from Oregon for his 
comments. We have been working together in a cooperative fashion. I 
think progress has been made. It has been one of those things where I 
thought it was worked out, and it didn't seem to be quite worked out.
  I know there is good faith all around. Senator Daschle and I have 
been following it closely. I thank the Senator for allowing this 
pipeline safety legislation to go forward. It is very important 
legislation, and if it expired, it certainly would pose problems for 
pipeline safety in the country. We will work with him to see if we can 
come to an agreement. There is at least one more vehicle it can be 
attached to if we can get it worked out.
  So I thank the Senator for allowing this important legislation to go 
forward.

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