[Congressional Record Volume 142, Number 136 (Friday, September 27, 1996)]
[Senate]
[Pages S11534-S11536]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         THE GAG RULE AMENDMENT

  Mr. KYL. Senator Wyden and I want to take a few minutes right now to 
try to brief our colleagues, as well as our constituents and others, 
who have been interested in the issue on the status of the so-called 
gag rule amendment. That is not perhaps a very glamorous name for what 
we are talking about, so let me describe that briefly. Then we will try 
to provide a report, as I said, about the status of the negotiations 
and how we might try to conclude this matter.
  People have heard the distinguished majority leader speak on several 
occasions about the effort to resolve this question. I think we are 
very close to it and want to report that to our colleagues. First of 
all, what we are talking about is an assurance for physicians that they 
are able to communicate freely with their patients about their 
patients' health and about the medical care or treatment options that 
might be important for their patients' health.
  When these physicians are a part of a plan, like an HMO, for example, 
they are constrained in certain ways with respect to what the plan 
provides in the way of coverage and, therefore, in the way of 
treatment. So this issue has evolved.
  To what extent can the HMO limit the physicians in their 
communications with patients? Well, virtually no one wants to create 
that kind of a conflict, at least intentionally, because clearly the 
physician has an obligation to his patient, and we all want the 
patients to have the maximum degree of care. So we want to ensure that 
this communication is not inhibited. What we have been involved in over 
the last several days is trying to craft legislation that is not overly 
broad but still ensures that degree of protection.
  We have also tried to ensure that this is done to the maximum extent 
possible at the State level. We are not interested in some kind of a 
new Federal mandate or new Federal program here. But, of course, we do 
at least need to get the process started here so that the States who 
have not yet adopted statutes--and many have--but for those who have 
not done so yet, that there would be an incentive for them to provide 
the kind of protection for the kind of communication which we are 
talking about.
  We also want to ensure that there is a conscience clause provision 
here that enables physicians who, for moral or religious beliefs, do 
not want to get into certain discussions, that they would not have to 
do so, and, likewise, that a provider, an HMO or other kind of insurer 
that may have based its benefits on its beliefs, including religious 
beliefs, be protected as well.
  So these are not necessarily easy issues, but I think in terms of a 
general concept, there has not been a great deal of disagreement. But 
nevertheless, trying to put this all together at this time of the year 
has not been real easy.
  I want to thank several people for their involvement in this, in 
particular the majority leader, who has been most patient in waiting 
for us to try to get this resolved; the assistant majority leader, who 
has been personally involved in discussions on this to try to craft it 
in the right way; Senator Dan Coats, who has been involved; and several 
others who have expressed an interest and given their input.

  Senator Wyden and I have developed a series of drafts. Our most 
recent draft, we think, is a very good product which achieves this goal 
but with the minimum of difficulty. As we speak, even this draft is 
being revised to some extent to try to reflect the views of other 
Senators.
  I urge that anyone who has an interest in this issue and would like 
to give us their views, or who has heard about a particular version of 
this and would like to know what the actual most current version of it 
is, that they please communicate with us because we would be most 
pleased to share our ideas with them and to get their ideas as well.
  The majority leader would very much like to get this wrapped up. We 
would, too. Therefore, again, I thank those who have been involved. We 
stand ready to try to wrap it up if people will give us their views. 
But I think we have come to a point now where there are not very many 
issues that prevent us from doing this. I really urge any Senators who 
have an interest to help us bring this to conclusion.
  Under the previous agreement, at this time I yield the floor to 
Senator Wyden.
  Mr. WYDEN. I want to thank the Senator from Arizona for not just his 
very thoughtful statement, but for all of the effort over these last 
few weeks. He and I got to know each other in the House and enjoyed 
working together, and it has been a pleasure to work with my friend 
from Arizona on it. I share Senator Kyl's view that we have had a 
number of Senators--I see Senator Nickles is here and Senator Coats on 
the Republican side; Senator Kennedy, for example, on the Democratic 
side--that have been working some very long hours and working in good 
faith to try to deal with this. I believe we are now very close in 
terms of dealing with the issue.
  I just want to spend a minute and try to outline the problem and then 
talk a bit more about some of the remedies that Senator Kyl has talked 
about.
  The reason this issue is so important is that managed care is the 
fastest growing part of American medicine. Now, health care, we know, 
is a multibillion dollar industry. The fastest growing part of it is 
managed care. I want to make it clear that there is a lot of good 
managed care in our country. I come from a part of our Nation, the 
State of Oregon, that has been a pioneer in the managed care field. We 
have seen good managed care. If you want to see 21st century medicine, 
you can come to my State and see a lot of it in action every day.
  But, unfortunately, too often we have seen that financial concerns, 
concerns about expensive treatments or referrals, have replaced what is 
the important essence of American health care, which is free and 
unfettered communication between doctors and patients.
  These limitations are what is known as gag clauses. A health 
maintenance organization may say to the doctors, ``We're watching you 
in terms of those expensive treatments.'' Or the health maintenance 
organization will say to the doctors, ``We're keeping track of the 
referrals that you're making,'' with an idea that perhaps a doctor who 
tells about an additional provider outside the network is doing 
something detrimental to the plan.
  We can have differences of opinion--and Senator Kyl and I have talked 
about this before--on a lot of health care issues. Reasonable people 
surely differ with respect to the role of the Federal Government, the 
role of the private sector. There are lots of issues in American health 
care that there can be legitimate differences of opinion on.

  I offer up the judgment that what should never be in dispute is the 
importance of patients and families to get all the facts, to get the 
truth, to get all the information about the various issues relating to 
their medical condition and the treatments that are available. In fact, 
I think 21st century health care is about getting information over the 
Internet. The kind of legislation we are talking about today is going 
to be built around empowering patients to get the information so as 
they look at the various options that they might consider for their 
treatment, they can do it on the basis of having all the facts.
  Now, Senator Kyl has outlined briefly a few of the issues that we 
have focused on in some depth. Let me just add to them very briefly. 
The first is on the matter of the regulatory framework and the role of 
the Federal Government and the States. What Senator Kyl and I have 
done, in very blunt, straightforward terms, is make it clear

[[Page S11535]]

the States will take the lead with respect to carrying out this 
statute. Congress has done this before in a number of areas, done it in 
the Medigap area, done it in the maternity stay legislation. The 
legislation that we offer up and is based on our discussion, basically 
makes it clear when a State acts in a way that is rationally connected 
to the purposes of this statute, the State is going to be in a position 
to take the lead.
  Second, we know there are many who are concerned with respect to an 
issue that comes up in this body quite often, and that is reproductive 
health issues, in the matter of abortion specifically. We have sought 
to make sure that each individual practitioner or doctor can exercise 
what amounts to a ``conscience clause'' and be able to express that for 
religious or moral reasons, there are certain matters--abortion--that 
they would not be comfortable discussing. We also thought to make it 
clear that plans would have certain rights, particularly to make it 
clear to their individual practitioners, doctors, and others, that the 
plan did not offer abortion services.
  There are other ideas that may be worth exploring, built principally 
on the concept of disclosure. Plans ought to know they are not going to 
be subject to unexpected legal consequences, and the consumer ought to 
be in a position to get full disclosure of exactly what their plan 
offers. I believe we have made considerable headway in that regard.
  We believe, with a bit more work and the kind of good faith we have 
seen over these last few weeks--and it is important to note that the 
same spirit exists in the House. Dr. Ganske of Iowa and Congressman 
Markey, like Senator Kyl and I, have been working on a bipartisan 
basis, with the idea that these gag clauses have no place in 21st 
century American health care.
  Mr. President, 21st century American health care ought to be built 
around the idea that when patients and families sit down with their 
physician, their physician would give them all the facts, all the 
information they need, to make these choices.
  I want to thank Senator Kyl. He knows when I offered this the first 
time we got a majority of votes in the U.S. Senate, but the point is to 
get something that is going to bring the entire Senate together, to 
bring all the Members together around a proposition of full consumer 
disclosure and consumer empowerment. I think we can do that.

  We are putting the States in the lead. This is not an example of 
Federal micromanagement or Federal Government run wild. We are going to 
make sure that plans and practitioners, who, for religious or moral 
reasons, have concerns about discussing abortion, and others, would be 
protected. I think we do it in a way that is sensitive to legitimate 
concerns of many in the field for managed care plans. For example, we 
have important provisions on utilization review. Those managed care 
plans ask for those. That is part of our compromise.
  Let me at this time yield, because I know there are a number of 
Senators who have been working in good faith and want to participate in 
this. Therefore, I yield back to Senator Kyl and our other colleagues 
who have been putting some long hours on this. I am looking forward to 
staying with this until we get these protections for consumers and 
doctors, and do it in a fair way.
  Mr. KYL. Mr. President, before the distinguished acting majority 
leader speaks to this, I thank Senator Wyden for his bipartisan 
cooperation and make the point with all of the things we have to do 
here at the end of the session to finish the Nation's business, the 
assistant majority leader, the Senator from Oklahoma, is right in the 
middle of all of that, yet he has taken the time to personally be 
involved to improve this legislation.
  If we are able to craft an agreement here, it will be in no small 
part due to the ideas that he brought into the debate to ensure, for 
example, that the State control was preeminent and that some of the 
other protections that we have in here are here.
  Again, I want to thank him, as well as Senator Coats, for all of 
their contributions to this effort, too. It has gotten us much closer 
to the goal line than we otherwise would have been.
  Mr. NICKLES. Mr. President, to the Senator from Arizona and the 
Senator from Oregon, flattery will get you everywhere, and may well end 
up getting an amendment.
  Let me state, Mr. President, my thoughts. Originally, I will tell my 
friends and colleagues that I thought this was not the right way or the 
right time to legislate such an important matter. I am very dubious at 
the outset when I see legislative actions taking play the last day or 
two of the session, when measures have not had time to have hearings 
and have the benefit of congressional thought, hearings, markup, input 
from people on all sides.
  This is important legislation. I will tell my colleague from Oregon 
who originally introduced this and had the assistance of the Senator 
from Arizona, the thrust of it I would concur. I also want to 
compliment the Senators from Oregon and Arizona for their willingness 
to be flexible, to understand that some of us did have serious 
concerns, concerns about making sure we protect the rights of States. 
They have shown a willingness to do that. Some States have acted. We 
want to compliment those States. We do not want to preempt their 
actions.
  Also, dealing with religious institutions, I think, we still have a 
little way to go there. I know we will confer more tonight, and maybe 
tomorrow we can bring that to a conclusion. I, for one, want to make 
sure we would not be mandating to, for example, a religious 
institution, a Catholic hospital, or something that might have a clause 
that physicians that would work within this institution would not 
provide assistance to suicide, for example. I do not want to pass 
legislation in the wee hours that might outlaw or ban that particular 
clause or section of their contract.

  I want to be careful. I know we are probably on about the ninth 
draft. I think the legislation has been improved significantly.
  Again, I thank my colleagues who have worked so hard, including 
Senator Coats, as well as Senator Wyden and Senator Kyl, for their 
input on this legislation, and just state to my colleagues that we will 
continue working in good faith, and if we are able to resolve some of 
the few remaining differences, it may well be that we can have some 
legislation that would be acceptable, and maybe as an amendment to the 
continuing resolution or as independent legislation. So I compliment my 
colleagues for their willingness and their patience to work with some 
of us, and we will continue working.
  I see an effort by many to legislate a whole agenda in the last two 
days of Congress. I urge people to be maybe a little more patient and 
wait for next year. The continuing resolution is growing, and that, to 
me, is not really the best way to legislate. So I urge our colleagues 
to realize that they don't have to do everything on this one bill. I 
also urge my colleagues to speak out on the public lands bill that 
Senator Murkowski has been working so hard on. There is no reason for 
us not to be able to pass this package, which I believe will probably 
have an overwhelming vote of support by both Houses of Congress.
  I think the administration is, unfortunately, moving the goal posts. 
We removed the major veto threats in that legislation in the last 24 to 
48 hours. Yet, now they are finding more objections. I even say that 
maybe that is not in good faith, and that bothers me. There has been a 
lot of work by Members on both sides of the aisle. That bill was a 
bipartisan bill, and it should pass. I know the Senator from Minnesota 
reluctantly dropped an amendment that was very important to him. The 
Senator from Alaska dropped an amendment that was very important to 
him, and others were able to make concessions so we could pass an 
omnibus bill that is important to most of the Members in this body. It 
would be unfortunate indeed if we didn't pass this bill before we 
adjourn this Congress.
  Finally, I want to say something on the immigration bill. The 
administration sent signals that they would sign that if we dropped the 
Gallegly amendment. We did drop the Gallegly amendment. Now there have 
been additional requests for additional modifications. I find that, 
too, moving the goal posts. I hope we will take up the immigration bill 
and pass it, as amended, without the Gallegly amendment. I think we

[[Page S11536]]

will have an overwhelming vote in both Houses--well, the House already 
passed it by an overwhelming vote. I think in the Senate we will, as 
well. I urge colleagues to be patient and not try to pass everything on 
their legislative agenda in the next two days.
  Let us work together and finish the unfinished appropriations bills, 
the continuing resolution, do it responsibly. Again, I thank my 
colleague from Oregon and my colleague from Arizona for their 
willingness to be at least flexible enough for some of us who had 
concerns about their amendments. Perhaps we can get that resolved.
  I yield the floor.
  Mr. WYDEN. Mr. President, I ask unanimous consent to address the 
Senate for 5 additional minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. I want to tell the Senator from Oklahoma that we very much 
appreciate his involvement in this. I only asked for 5 additional 
minutes because I want to go back to negotiating with him and his staff 
on it. As you know, Senator Kennedy has done yeoman work on this and 
has been very involved in this as well. I think we are going to have 
good input and involvement on both sides of the aisle if we try to 
finish it up.
  I think it is important that the Senate and the country understand 
that what we are talking about is ensuring that straightforward, honest 
conversation could take place between doctors, nurses, chiropractors, 
therapists, and their patients. That is all we are talking about here--
information, and those honest, straightforward discussions. Right now, 
because of these gag clauses, that kind of communication so often can't 
take place. That is not right. That is what we are going to try to 
change.
  Mr. President, I thank the Senate for the additional time. I yield 
the floor.
  Mr. NICKLES. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. NICKLES. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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