[Congressional Record Volume 142, Number 135 (Thursday, September 26, 1996)]
[Senate]
[Pages S11414-S11415]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 WYDEN-KENNEDY AMENDMENT PROHIBITING GAG RULE IN HEALTH INSURANCE PLANS

  Mr. KENNEDY. Mr. President, gag rules have no place in American 
medicine. Americans deserve straight talk from their physicians. 
Physicians deserve protection against insurance companies that abuse 
their economic power and compel doctors to pay more attention to the 
health of the company's bottom line than to the health of their 
patients.
  You would think everyone would endorse that principle. But the 
insurance companies that profit from abusing their patients do not--and 
neither does the Republican leadership in the House and Senate. Senator 
Wyden and I offered an amendment to the Treasury-Postal appropriations 
bill to end this outrageous practice. A 51-48 majority of the Senate 
voted with us. But the Republican leadership used a technicality of the 
budget process to raise a point of order requiring 60 votes for our 
proposal to pass. We have now revised our proposal so that there will 
be no point of order when we offer it again.
  But the delaying tactics of our opponents still continue. We first 
offered our amendment on September 10. The point of order was raised 
against it on September 11. We tried to offer the revised version later 
that day. We waited on the Senate floor all afternoon and evening, and 
through the next day as well. We were ready to agree on a time limit to 
permit a prompt vote. Still the Republican leadership said, ``no.'' 
Finally, the Republican leadership abandoned the whole bill, rather 
than allow our amendment to pass.
  Since September 12, we have waited for another bill on which to offer 
this proposal. We were prepared to offer it on the pipeline safety 
bill, but the Republican leadership will not allow that bill to move 
forward unless we agree to drop our amendment. The pipeline bill was 
first offered on September 19--and then abandoned in order to block our 
amendment.
  Since September 19, we have also been attempting to negotiate a 
reasonable compromise with the Republicans that would achieve the goal 
of protecting doctor-patient communications, but each time agreement 
has seemed close, new demands have surfaced. Rolling holds were used to 
block the Kassebaum-Kennedy bill for months. A similar tactic is being 
used now.
  This issue could be resolved in a few minutes of debate on the Senate 
floor. A stricter approach than the one we proposed was approved by a 
25-0 bipartisan vote in the House Health Subcommittee last June, and 
the full House Commerce Committee approved it by a voice vote in July. 
The only thing that stands between the American people and ending these 
outrageous HMO gag rules is the insistence of the Republican leadership 
on putting the insurance companies first--and patients last.
  The need for this proposal is urgent, which is why we are pressing 
this issue so strongly in the closing days of this session. Patients 
deserve this protection--and so do doctors. So why is the Republican 
leadership in Congress protecting the insurance industry?
  One of the most dramatic changes in the health care system in recent 
years has been the growth of health maintenance organizations and other 
types of managed care. Today, more than half of all Americans with 
private insurance are enrolled in such plans. In businesses with more 
than ten employees the figure is 70 percent.
  Between 1990 and 1995 alone, the proportion of Blue Cross and Blue 
Shield enrollees in managed care plans more than doubled--from 20 
percent to almost 50 percent. Even conventional fee-for-service health 
insurance plans have increasingly adopted features of managed care, 
such as continuing medical review and case management.
  In many ways, these are positive developments. Managed care offers 
the opportunity to extend the best medical practice to all medical 
practice. It emphasizes helping people to stay healthy, rather than 
just caring for them when they are sick. Managed care often means more 
coordinated care and more effective care for people with multiple 
medical needs. It offers a needed antidote to profit incentives in the 
current system to order unnecessary care. These incentives have 
contributed a great deal to the high cost of health care in recent 
years.
  But the same financial incentives that enable HMOs and other managed 
care providers to practice more cost-effective medicine can also be 
abused. They can lead to under-treatment or arbitrary restrictions on 
care, especially when expensive treatments are involved or are likely 
to reduce HMO profits.
  There is a delicate balance between the business side of medicine and 
the medical side of medicine, and Congress has an important role to 
play, especially in cases such as this, where doctors and patients are 
on one side and

[[Page S11415]]

the insurance industry is on the other side.
  As Dr. Raymond Scalettar, speaking on behalf of the Joint Commission 
on Accreditation of Health Care Organizations, recently testified:
       The relative comfort with which the fee-for-service sector 
     has ordered and provided health care services has been 
     replaced with strict priorities for limiting the volume of 
     services, especially expensive specialty services, whenever 
     possible * * * [T]hese realities are legitimate causes for 
     concern, because no one can predict the precise point at 
     which overall cost-cutting and quality care intersect. The 
     American public wants to be assured that managed care is a 
     good value, and that they will receive the quality of care 
     they expect, regardless of age, type of disorder, existence 
     of a chronic condition or other potential basis for 
     discrimination.

  It is easy for insurance companies to put their bottom line ahead of 
their patients' well-being--and to pressure physicians in their plans 
to do the same. Common abuses include failure to inform patients of 
particular treatment options; barriers to reduce referrals to 
specialists for evaluation and treatment; unwillingness to order needed 
diagnostic tests; and reluctance to pay for potentially life-saving 
treatments. It is hard to talk to a physician these days without 
hearing a story about insurance company behavior that raises questions 
about quality of care.
  In some cases, insurance company behavior has had tragic 
consequences. The experience of Alan and Christy DeMeurers is a case in 
point. An HMO cancer specialist recommended--in violation of the HMO's 
rules--that Christy should obtain a bone marrow transplant. The doctor 
made the necessary referral. The DeMeurers then spent months trying to 
obtain this treatment. The HMO tried to deny the treatment. It also 
attempted to prevent the DeMeurers from obtaining information about the 
treatment. The delays they experienced may have cost Christy her life.
  Alan DeMeurers made the trip to Washington from Oregon several weeks 
ago to speak out in support of our amendment. I had the opportunity to 
meet with him. His story is powerful support for ending abuse as soon 
as possible--now, this year, not next year.
  Our amendment bans the most abusive types of gag rule--those that 
forbid physicians to discuss all possible treatment options with the 
patient and make the best medical recommendation, including 
recommendations for a service not covered by the HMO.
  Specifically, our amendment forbids plans from ``prohibiting or 
restricting any medical communication'' with a patient with respect to 
the patient's physical or mental condition or treatment options.''
  This is a basic rule which almost everyone endorses in theory, even 
though it is being violated in practice. The standards of the Joint 
Commission on Accreditation of Health Care Organizations require that 
``Physicians cannot be restricted from sharing treatment options with 
their patients, whether or not the options are covered by the plan.''
  As Dr. John Ludden of the Harvard Community Health Plan, testifying 
for the American Association of Health Plans has said, The AAHP firmly 
believes that there should be open communications between health 
professionals and their patients about health status, medical 
conditions, and treatment options.
  But too often these days, that basic principle is being ignored.
  The best HMO plans do not use gag rules. In our view, no plan should 
be allowed to use them. Most of us came to this debate with the 
assumption that HMOs which prevent physicians from giving the best 
possible medical advice to their patients are rare exceptions. But the 
vehemence with which the insurance industry opposes this simple, 
obvious rule--a rule which is entirely consistent with every ethical 
statement issued by the industry--leads us to wonder just how 
widespread this practice is.
  Our amendment has strong support from both the American Medical 
Association and Consumer's Union--because it is a cause that unites the 
interests of patients and doctors. It has been strongly endorsed by 
President Clinton. It passed the House Commerce Committee by an 
overwhelming, bi-partisan vote. It has already received a majority vote 
in the Senate. The only thing that stands between this bill and passage 
is the insurance industry and its allies in the Republican leadership 
in Congress.
  These are the same groups that fought the Kassebaum-Kennedy insurance 
reform bill. They tried to defeat the Domenici mental health parity 
bill and the Bradley bill to protect mothers and newborn infants from 
being forced prematurely out of the hospital.
  In each case, the Republican leadership knew it could not win the 
battle in the open. So they resorted to the tactic of delay in public 
and denial behind closed doors. That tactic failed on those bills, and 
it should fail on the gag rule bill. Unscrupulous insurance companies 
have no right to gag doctors and keep patients in the dark.
  If this bill does not pass this year, the American people will have a 
chance in November to cast their votes for a Democratic Congress and a 
Democratic President that will make fair play for patients our first 
priority next year.

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