[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
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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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