[Congressional Record Volume 143, Number 34 (Monday, March 17, 1997)]
[Senate]
[Pages S2357-S2358]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL (for himself, Mr. Wyden, Mr. Kennedy, and Mr. 
        Hutchinson):
  S. 449. A bill to prohibit the restriction of certain types of 
medical communications between a health care provider and a patient; to 
the Committee on Labor and Human Resources.


                     the patient right to know act

  Mr. KYL. Mr. President, I rise to join my colleague, Senator Ron 
Wyden, to introduce the Patient Right to Know Act. I also want to 
commend my House colleagues, Representatives Greg Ganske and Ed Markey, 
for their leadership on this issue.


                           procedural history

  The Kyl-Wyden Patient Right to Know Act, originally offered as an 
amendment on September 10, 1996 to the fiscal year 1997 Treasury, 
Postal appropriations bill, received 51 bipartisan votes; but 60 votes 
were required to overcome a procedural obstacle on the Senate floor.


                              the problem

  Mr. President, the purpose of this legislation is to return to 
patients their basic right to receive all relevant information from 
their doctor, or provider, about costs, benefits, risks, and legal, and 
appropriate treatment options that are important to their health. This 
bill would allow doctors and other providers to comply with their 
ethical and legal responsibility to fully inform patients of all their 
reasonable and legal options, regardless of cost or coverage 
limitations in a particular plan.
  Some managed care plans forbid doctors and other providers from even 
mentioning all legal and reasonable treatment options to patients, 
either because the managed care plan's benefits will not pay for a 
particular treatment, or because of the relative cost of different 
treatments for the same condition offered by the plan.
  In recent years, there have been media accounts of a few of the 
countless individuals who have been denied care by physicians and plans 
in an effort to control costs. In April 1994, ABC's ``20-20'' reported 
on the case of a woman who was denied information about a bone-marrow 
transplant to treat her breast cancer. In October 1995, CBS presented a 
story about a woman who was denied information about and access to 
specialists, and who was later diagnosed with cancer.
  The national press has revealed the extent of this problem in 
publications such as the New England Journal of Medicine and the New 
York Times. For instance, the Times ran an article in September 22, 
1996, entitled, the ``Tricky Business of Keeping Doctors Quiet.''
  Americans have clearly noticed the deficiencies in some managed care 
plans. In a 1996 poll by the Patient Access to Speciality Care 
Coalition, 92.7 percent responded that it was very important that they 
be told of all treatment options, and 53 percent believe that they do 
not now receive enough information about how HMO's or managed care 
plans make treatment decisions.


                         attempts at a solution

  Sixteen State legislatures have addressed the existence of gag rules, 
and several more are in the process of doing so.
  The industry itself has acknowledged this problem, possibly realizing 
that gag rules make good managed care companies look bad. On December 
18, 1996, the American Association of Health Plans, which represents 
over 1,000 providers and 140 million Americans, announced voluntary 
guidelines

[[Page S2358]]

that would end the use of gag clauses by member plans.
  Limited antigag regulations have been promulgated by the Health Care 
Financing Administration that apply to Medicare and Medicaid managed 
care insurance contracts.
  However, this still leaves us without a systematic approach to the 
problem. I believe we need a single, clear Federal standard, enforced 
by the States, that provides consistent protection of medical 
communications, for all health plan beneficiaries, no matter which 
State they live in, or which health plan they buy. This is the only 
certain way to stop individuals or entities whose goal is to reduce 
costs--at the expense of health care quality--by restricting medical 
communications between providers and patients.


                     the congress may and must act

  It is clear that the Congress may act in this area since the offering 
and operation of health plans affects commerce among the States.
  It is also clear that the Congress must act. With the emphasis that 
health care reform places on managed care, it is essential that the 
Congress ensure that managed care techniques and procedures protect 
patients and guarantee the integrity of the provider-patient 
relationship.
  Mr. President, gag clauses in health care provider contracts attack 
the heart of the provider-patient relationship, and undermine the 
fundamental factor in the healing process: trust. The Congress has a 
substantial interest in preserving this relationship in the managed 
care environment it helped to create.
  This legislation is measured in its approach. It provides for State 
enforcement of a clear, reasonable Federal standard. And, before a 
floor vote, the legislation will include a conscience clause exception 
for providers and entities. After months of good-faith, bipartisan 
discussion, the precise legislative language to establish a conscience 
clause exception to the gag rule has not yet been crafted.
  However, all parties agree in principle that the rights and 
prerogatives of health plans and individual providers who, for 
religious or moral reasons, choose not to discuss certain treatments, 
must be protected. The question is, how best to accomplish this.
  I am committed to continuing to work with all interested parties to 
achieve the greatest consensus possible on this critical issue. I will 
continue to work to see that all interested parties have been heard on 
this issue and the greatest amount of consensus possible has been 
reached.
                                 ______