Ron Wyden

Mr. WYDEN

Mr. WYDEN. Thank you, Mr. President. Amendment No. 5352 (Purpose: To authorize the Secretary of the Interior to enter into cooperative agreements for the restoration and enhancement of biotic resources on watershed land)

Mr. WYDEN

Mr. WYDEN. Mr. President, in this Congress, there has been considerable debate on the issue of property rights. But the debate so far has essentially ignored the interests of the largest group of property owners in America--the 60 million homeowners. Until today, property rights legislation has tended to protect only a limited group of property owners, those whose use or development of their property is regulated by the Federal Government. The typical homeowners who we all represent live in already constructed homes; they are not developing their property. When they use their property in a typical fashion, they are not regulated under the wetlands law, the endangered species law, or any other Federal status. The typical homeowner is helped, not hurt, by many government policies that keep our air clean and our water health and pure. When these homeowners' property rights and property values are threatened, the threat is more likely to come from pollution from neighboring factories than from government actions to protect the environment. Today, along with Senator Warner, I am introducing the Homeowners Protection and Empowerment Act to make sure the interests of America's homeowners are protected. Our legislation provides homeowners with the right to sue for compensation whenever their property values are diminished by an action regulated by the Federal Government. It provides homeowners with a Federal right of action against anyone responsible for decreasing a private party homeowner's property value by $10,000 or more, whether it's a Federal agency or a private party acting under authority of Federal law. For example, if a developer fills in federally regulated wetlands, the result may be increased flooding on downstream homeowners' properties, because undeveloped wetlands help to control flooding. This increased risk of flooding diminishes the value of downstream homeowners' properties. Under the Homeowners Protection and Empowerment Act, any affected homeowner whose property value declined by at least $10,000 because of the developer's wetland filling would have the right to sue the developer for compensation. The legislation also requires anyone conducting an activity that both requires a permit or other authorization under Federal law and generates pollution or has other property damaging impacts to give written notice about the activity and its potential impact to each homeowner living within a quarter mile of the activity. I want to thank Senator Warner for working with me on this legislation and for helping to clarify that the intent of the legislation is to protect typical homeowners. I look forward to working with him to move the legislation forward.

Mr. WYDEN

Mr. WYDEN. Mr. President, in this Congress, there has been considerable debate on the issue of property rights. But the debate so far has essentially ignored the interests of the largest group of property owners in America--the 60 million homeowners. Until today, property rights legislation has tended to protect only a limited group of property owners, those whose use or development of their property is regulated by the Federal Government. The typical homeowners who we all represent live in already constructed homes; they are not developing their property. When they use their property in a typical fashion, they are not regulated under the wetlands law, the endangered species law, or any other Federal status. The typical homeowner is helped, not hurt, by many government policies that keep our air clean and our water health and pure. When these homeowners' property rights and property values are threatened, the threat is more likely to come from pollution from neighboring factories than from government actions to protect the environment. Today, along with Senator Warner, I am introducing the Homeowners Protection and Empowerment Act to make sure the interests of America's homeowners are protected. Our legislation provides homeowners with the right to sue for compensation whenever their property values are diminished by an action regulated by the Federal Government. It provides homeowners with a Federal right of action against anyone responsible for decreasing a private party homeowner's property value by $10,000 or more, whether it's a Federal agency or a private party acting under authority of Federal law. For example, if a developer fills in federally regulated wetlands, the result may be increased flooding on downstream homeowners' properties, because undeveloped wetlands help to control flooding. This increased risk of flooding diminishes the value of downstream homeowners' properties. Under the Homeowners Protection and Empowerment Act, any affected homeowner whose property value declined by at least $10,000 because of the developer's wetland filling would have the right to sue the developer for compensation. The legislation also requires anyone conducting an activity that both requires a permit or other authorization under Federal law and generates pollution or has other property damaging impacts to give written notice about the activity and its potential impact to each homeowner living within a quarter mile of the activity. I want to thank Senator Warner for working with me on this legislation and for helping to clarify that the intent of the legislation is to protect typical homeowners. I look forward to working with him to move the legislation forward.

Mr. WYDEN

Mr. WYDEN. Mr. President, I ask unanimous consent to speak on my amendment at this time.

Mr. WYDEN. Mr. President, first, I express my thanks to Senator Kennedy. He has done yeoman work on so many health issues over the years. He has just been so helpful to me as a new Member of the Senate. I thank him for all of his help and that of his staff in preparing this amendment. I think it is clear, Mr. President, that this amendment is not some sort of exotic animal that has just wandered onto the floor of the U.S. Senate to be considered, as if the Members have no awareness of what this issue is all about. This issue has been the subject of extensive hearings in the House of Representatives. This issue has been all over the news media across the country. Suffice it to say that virtually every Member of this body has heard from constituents and from providers at home about this particular issue. I know that virtually every time I am home--I come from a part of the country which has some of the very best managed care in the Nation--that I hear from patients and consumers about this particular issue. It really comes down to a question of whether we are going to keep faith with the Hippocratic oath of doing no harm to patients, making sure they have information about the various treatments and services that are essential to them, or to turn that Hippocratic oath on its head and in effect say the first obligations are to the bottom line. This amendment is rifle-shot legislation. It prohibits only gag provisions in contracts that relate to patient care. It goes only to the question of whether or not patients are going to be able to get full and complete information about their physical and mental condition and about the treatment options that are available to them. It is not going to interfere with proprietary matters. It is not going to allow fishing expeditions into proprietary business information that ought to be the property of the health maintenance organizations. It goes just to the question of whether patients have a right to know. Some may say now is not the time; that maybe next session it can be taken up. I would ask that one not substitute this kind of discussion of maybe tomorrow or maybe next year for what is simple justice and common sense for medical patients in the fastest growing sector of American health care. This has not been a partisan issue. Dr. Ganske, a Republican, a physician on the House side, has done superb work along with Congressman Markey, a Democrat. I have noted that Senator Helms has filed an amendment which is very similar to the one that I will be seeking a vote on in a few moments. But there is a question, it seems to me, of consumer justice, of the patient's right to know, and we should not ask those patients to wait any longer given the documented record of abuses and problems. We know that our health care system involving billions and billions of dollars is now being driven by managed care. One plan after another in the U.S. Senate has looked to managed care as the centerpiece of American health care as we look into the next century. My view is--I come from a part of the country where there are many good managed care plans--that managed care will play a big role, a significant role in delivering quality care in a cost-effective way to the patients and consumers of our country. But let us not let a small number of plans--plans that have been cutting corners and have been found to be cutting corners from hearings that have been held in the Capitol--in effect continue those consumer abuses that take a toll on patients across this country. This is not a vote about an arcane kind of issue with respect to the budget. This is a question of justice for patients, of the patient's right to know, and of patients needing information about the various treatment options available to them. I hope my colleagues will in the spirit that this has been addressed in the House pass this with a bipartisan and significant vote. That is the way it was tackled in the House Commerce Committee. I hope we will send a message today to the vast majority of patients, doctors, and others who offer good medical care that we are on your side, that we are going to isolate those gag rules, that we are going to say that is not what we want American health care to look like in the 21st century, and that we would vote today to ban these insidious, unconscionable gag rules that restrict the right of medical patients in our country to know about essential services. Mr. President, I ask for the yeas and nays on my amendment.

Mr. WYDEN. No, that is not correct. In fact, we specifically protect the rights of States to go further.

Mr. WYDEN. This is in fact a national standard. Yes, we do say-- because managed care plans, many of them, operate in more than one State, we have said, you bet, we have a national problem. It is a national standard. But there are a small number of States that have dealt with this in a thoughtful kind of way. We specifically protect those States.

Mr. WYDEN. Well, the parts that protect the patient and protect Indiana physicians, those parts are in fact protected under my amendment. But if there are parts of the Indiana statute that do not adequately protect Indiana physicians and do not adequately protect Indiana consumers, yes, there would be a Federal standard.

Mr. WYDEN. If the Senator will let me respond, as the Senator knows-- and both of us are veterans of the House Commerce Committee--not very much goes through the House Commerce Committee unanimously. Dr. Ganske is not known as a poster child for the anti-States rights movement. This is a bill that has been worked on so as to be sensitive to the rights of States. What it does essentially is bring the same kind of consumer protections at the Federal level that we do in a number of Medicare areas. The Senator and I worked, for example, in the House on Medicare risk contracts and the like. This does say that on certain matters up to what amounts to a floor of consumer protection there ought to be a national standard. And that is how we deal with it here. That is how Dr. Ganske dealt with it in the House.

Mr. WYDEN. If the Senator will let me respond once more, I cannot imagine that Indiana State law allows these plans to gag Indiana doctors. I have not reviewed the Indiana law, but I just cannot believe that Indiana law does permit these kinds of gag rules. That is all we do in this legislation. If the Senator is looking for a way to vote against what physician groups and patients all across this country have been calling for, so be it. I know the Senator has done a lot of good work in health care. But I cannot believe that Indiana law is coming out in favor of these kinds of gag provisions. All we are seeking to do in this legislation is prevent them as well.

Mr. WYDEN. The Senator from Nebraska has been very helpful. I appreciate it. That is acceptable to me.

Mr. WYDEN. Mr. President, I have not seen the sense of the Senate, offered by Senator Kassebaum, but I would like to discuss this further with her. I also might say that as a new Member of the Senate, she has been especially helpful to me. We have worked on a variety of things, Food and Drug Administration issues and the like. I want her to understand that it has not been particularly pleasant to spend the afternoon taking different positions with somebody I admire. I want her to understand that. Again, I have not seen a copy of the sense of the Senate offered by the chair of the committee. She seeks to offer a study of this issue involving gag rules on medical patients; is that correct? We have my amendment which passed 51 to 48, but did not get 60 votes, on a proposal that keeps these health maintenance plans from imposing gag rules that keep their patients from getting a full range of information about medical services and treatments and their health care options. My amendment does not deal with the abortion issue. Perhaps some may have thought it did. It simply deals with all of those physical and mental health services and the treatment options that patients need to make decisions. The Senate passed my amendment 51 to 48. Of course, it needed 60 votes. I gather now that the Chair of the committee seeks a study of this particular issue. I yield to her to find out whether this, in fact, is a study, or is this legislation with some teeth in it that actually does ban these gag rules, these insidious, offensive, anticonsumer gag rules that keep patients from knowing about their rights?

Mr. WYDEN. Reluctantly, I will have to oppose the sense-of-the-Senate resolution. I want to take a few more minutes to tell the Senate why I am going to oppose the sense-of-the-Senate resolution. You pass the sense-of-the-Senate resolution and you are playing Russian roulette with consumers in our health care system. We have patients and consumers who are being denied the information they need with respect to medical services for their physical and mental problems and the treatment options that are available to them. You pass this sense-of-the-Senate resolution and what you say to those patients, in the fastest growing sector of American health care, is, ``We are not on your side. We don't want you to have any rights now. We are not going to do anything about these pernicious, offensive gag rules that exist today. Instead, what we will do is go out and talk to a whole bunch of the same people that the U.S. Congress has already talked to.'' I think that is unfortunate. I think it is risky business. I think that when you have patients who are in jeopardy--and make no mistake about it, that is what happens when you have these gag rules. These patients are in jeopardy. They are not being told what they need to know as it relates to essential health services and the information they need. I will tell you, I am just absolutely baffled at how the U.S. Senate can say, at a time when patients hunger for information about health care services, at a time when they want to get it on the Internet, at a time when they can go to special programs offered by health care providers, just to know about new treatments and options, I can't understand how the U.S. Senate would then say that we are going to stiff those patients, we are not going to give them the information they need, we are not going to tell them what they need to know to make the essential decisions about the treatment and the services that they think are best for them. So I think that this sense-of-the-Senate resolution puts patients at risk. It means that we are not going to get any help for patients who need it now, who can't wait 6, 8, 10 months, or whenever it might be until the Senate might take this up again. It is not completely clear to me what the timetable of this might possibly be. But I think that this sense-of-the-Senate resolution puts patients at risk. I think it jeopardizes the well-being of vulnerable people. I think it is the antithesis of sensible health care policy, which ought to be built on the patient's right to know--the right to know everything, not just those things that might be in a planned financial interest. I just can't believe that this Senate wants to wrap up the discussion of this topic by telling patients that we are going to be on the side of the gag rules, we are going to be on the side of those who want to keep you from having information. But that is what this sense-of-the-Senate resolution does. Unfortunately, it says we won't protect patients now. We are not going to stand up for them when they face these gag rules that limit their right to know. I want it understood that this Senator is going to oppose this sense-of-the-Senate resolution, because it puts patients at risk. It sends the message--and perhaps some may desire to do this-- that the U.S. Senate is doing something to help patients when, in fact, it is not. The earlier amendment, the amendment that banned these gag clauses, helped patients. It helped them now, because it made sure that they could have access to all the information they need to make informed and thoughtful choices. I can tell my colleagues that I come from a part of the country that has managed care, that has had managed care perhaps longer than any other. We pioneered it. We have good managed care. We still have some of these abuses. But I can assure you that your communities and your States have a whole lot more of these problems than we do. I think it is going to be very, very hard to go home and explain to patients, explain to doctors--because doctors have endorsed this effort to eliminate the gag rules--how it is in the public interest. I cannot possibly believe that you can stand up at a community meeting of physicians, patients, or citizens and say we are not going to give you the information you need about medical services and medical treatments. But instead of giving you the information that you need we are going to have a gag rule, and you can't find out about your rights.

Mr. WYDEN. I will, and I want to yield to Senator Kerrey who has been helping me for the better part of 24 hours.

Mr. WYDEN. I move to waive the point of order and ask for the yeas and nays on the motion.

Mr. WYDEN. If the chairman of the subcommittee would provide me a copy of that, I would very much like to see that. Because the fact is, and let us go to the discussion of this matter, this has nothing to do with the Federal budget. What I am seeking to do is to make sure that managed care plans, the fastest growing part of American health care today, are not allowed to impose gag rules that impede patients from getting all the information that they need with respect to medical services and medical treatments. I come, Mr. President, from a part of the country that has pioneered managed care. The Portland metropolitan area that I represented, first in the House and now as a Senator, has the highest concentration of managed care in our country. We have seen good managed care, and there is plenty of it in Oregon. Unfortunately, there are managed care plans that have cut corners and that have kept a patient from a full range of those who provide necessary services. There are plans in the country where there have been oral communications where a plan says to a particular provider: ``We're watching the number of referrals that you are making out of the network. We don't want you to refer to that particular specialist.'' This is going on in our country. It is not right, and that is what this issue is all about. This is not a budget issue, I say to my colleagues. This is a matter of right and wrong. This is a matter of whether you are going to stand up for consumers, stand on the side of patients, or whether you are going to see those gag rules that keep patients from getting the information that they need and deserve. Mr. President, the preamble of the Hippocratic oath, which guides so much of American health care, is a statement to physicians: ``First, do no harm.'' The message of these gag restrictions, these gag clauses that we are seeing in managed care plans all across the country is not ``First, do no harm.'' Their message is, ``First, support the bottom line.'' That is the issue that we are debating. That is not good health care. That is certainly not good managed care. Several months ago, the Washington Post cited a startling example involving the Mid-Atlantic Medical Services health plan, a large Washington metro area provider. This plan wrote a letter to network practitioners informing them that ``effective immediately, all referrals from (the plan) to specialists may be for only one visit.'' And in bold type, the letter stated: ``We are terminating the contracts of physicians and affiliates who fail to meet the performance patterns for their speciality.'' That is the kind of gag rule, that is the kind of constraint that is being imposed on patients in the American health care system today by some managed care plans. Certainly, not all the managed care plans, and it is certainly not representative of what we are seeing in Oregon, but it is happening across the country. We have even seen it in a State like mine that has good managed care, and this is a bad deal for patients all around. First, patients end up not getting the kind of health care that they need. Second, the plan may restrict the provider, the physician, from informing the patient about referral restrictions so that the patient doesn't even know that they are being medically shortchanged via the plan's policy. So what you have, stemming from the gag clauses, is a situation where our patients are in the dark in the fastest growing sector of American health care. These gag clauses keep the patients from even knowing, from even being in a position to understand that they are being medically shortchanged via a plan's policy. Let me mention a couple of providers who have brought this to my attention in Oregon. One orthopedic surgeon faced a situation where his managed care plan demanded he diagnose problems in patients apart from the ones for which they were referred. He, in effect, was told he had to keep his mouth shut and instead re-refer those folks back to their primary care physician. This physician wrote me: ``This is extremely disappointing to patients, as you might imagine. This requires more visits on their part to their primary care physician and then back to me, which is extremely inefficient.'' Another physician, a family practitioner in a rural part of the State, wrote that antigag legislation was needed because ``when a physician recommends medical treatment for a patient and a plan denies coverage for that treatment, patients and physicians need an effective mechanism to challenge the plan.'' So what we find is that these kinds of communications, communication between a plan and a provider, such as an oral communication, are getting in the way of the doctor-patient relationship, and that is why consumer groups and provider groups all across this country are up in arms and have weighed in on behalf of this particular amendment. There are some protections. A handful of States do offer some protections for the patient, but they vary widely from State to State. So that is why I bring this matter to the Senate's attention. Senator Kennedy joins me in this effort to set a national standard for what has become a national problem, but I would like to emphasize how bipartisan this effort is. Senators need to understand that if they vote against my amendment, they are essentially voting against the amendment that Senator Helms has also filed. It is a little bit different. It has not been formally addressed in the Senate, but it is essentially what Senator Helms has sought. In the House, Dr. Greg Ganske, a Republican, a physician, has done yeoman work on this matter, with Congressman Ed Markey of Massachusetts, a Democrat. They have held voluminous hearings in the House where this has been a problem documented on the record. The Commerce Committee dealt with this issue--I would like all my colleagues to know this, as we move to a vote on this matter--the House Commerce Committee dealt with this on a unanimous basis, on a bipartisan unanimous basis, and I simply want my colleagues to know that while Senator Kennedy joins me formally in this effort, Senator Helms has filed what amounts to almost an identical amendment to what I offer today. Dr. Ganske and Ed Markey, on a bipartisan basis in the House, have engineered committee approval of it, so this is not a partisan issue that comes before the Senate today. This amendment is rifle-shot legislation prohibiting only gag provisions in contracts or in a pattern of oral communications between plans and practitioners which would limit discussion of a patient's physical or mental condition or treatment options. I want to emphasize that health plans would still be able to protect and enforce provisions involving all other aspects of their relationships with practitioners, including confidentiality and proprietary business information. The reason that is important, Mr. President, is obviously it is not in the interest of the American people or this body to have the U.S. Senate fishing about in the proprietary records of health plans. What this is all about is making sure that patients get information about health services, about their physical or mental condition, about treatment options. They deserve the right to information about health services and not face these gag clauses that keep them from getting the information that they deserve. I want my colleagues to know that I have worked hard with leaders in the managed care community, as well as practitioners and consumer advocates in crafting this legislation. The amendment specifies that State laws which meet or exceed the Federal standard set out here would not be preempted by Federal law. The bill has been endorsed by a wide variety of provider groups, physician groups, as well as by consumer organizations. The endorsements for this particular amendment include the Association of American Physicians and Surgeons, the American Association of Retired Persons, the Center for Patient Advocacy, Citizen Action, the Consumers Union, the American College of Emergency Physicians, and a number of other organizations. Here is what the Association of American Physicians had to say with respect to this amendment. They said: Restrictions on communication with our patients not only undermine quality of care, but are a blatant violation of the Hippocratic oath. Prohibition of gag rules is a crucial step toward protecting patients. The Center for Patient Advocacy said: It has become common for insurers to incorporate clauses or policies into providers' contracts that restrict their ability to communicate with their patients. Such gag clauses seriously threaten the quality of care for American patients. So what we have, Mr. President, and colleagues, is essentially a pattern across the country with these gag rules that turns the Hippocratic oath on its head. A Hippocratic oath that tells physicians, ``First, do no harm,'' has become all too often, ``First, think about the bottom line.'' So I am very hopeful that on a bipartisan basis the Senate will pass, hopefully without opposition, my amendment. As I say, a vote against my amendment is essentially a vote against what Senator Helms has filed in this body. It is a vote against what Dr. Ganske has sought to do in the House. And most importantly, it is a vote against patients and consumers all across the country. If you vote against this amendment today, which will undoubtedly be the only chance the Senate gets to go on record on it in this session, then you are sending a message to managed care plans across the country that if you want to stiff the patients, if you want to stiff those who are vulnerable and those who need health care in America, it is all right. You can keep from them information about their physical and mental options and alternatives. You can keep information from them about treatment and kinds of services. I cannot believe that is what the U.S. Senate would want to do. I think what the U.S. Senate would want to do is what Senator Helms has sought to do, what Dr. Ganske has sought to do, what Congressman Markey and Senator Kennedy and I have sought to do, and that is to stand up for the rights of the patients. So I am hopeful that this will be supported widely by Senators today. We should not let these gag rules between plans and an individual physician get in the way of the sacred doctor-patient relationship. These plans are the fastest growing part of American health care today. And we ought to go on record as being on the side of patients, as being on the side of the vast majority of doctors and providers in this country who want their patients to know all their treatment options, all the services that are available to them. I hope that Senators on a bipartisan basis will support this effort. Mr. KENNEDY addressed the Chair.

Mr. WYDEN. I am happy to yield.

Mr. WYDEN. Mr. President, the Senator from Alabama told me that he does not have an official report from the Congressional Budget Office with respect to revenue on it. The Senator has said that the majority staff projects that it will cost $85 million.

Mr. WYDEN. I am happy to yield.

Mr. WYDEN. Mr. President, the Senator from Alabama is raising a point of order on a revenue issue that simply does not apply to this amendment. I believe the Senator from Alabama is talking about a Congressional Budget Office report that was done on the House legislation on this matter, and I would just like to inform my colleagues that this amendment contains a change from the House legislation, a change that was added at the direct request of a number of managed care organizations, that deals with this question of revenue. If I could briefly engage the Senator from Alabama on this matter? The Senator from Alabama, I know, is trying to juggle a number of matters, but I would like to ask the Senator from Alabama, does he have a Congressional Budget Office report at this time that specifically cites this revenue projection on my amendment which is pending before the Senate?

Mr. WYDEN. Mr. President and colleagues, I hope that it is understood that while I think that the Chair of the committee means well and is sincere in this effort, I think that the sense of the Senate that she offers today is very risky business. This is September of 1996. The Senator from Kansas essentially is saying September, October, November, December, January, February, as the next Senate gets into business, that sometime 6 to 8 months from now we can talk again about the rights of patients in the fastest growing sector of American health care. I think this is risky business. It is one thing to study an issue when it is abstract, when it may not have direct and immediate consequences, but what the Senator from Kansas is saying is that when you have patients being hurt today, being subjected to risk today when they do not have access to all the information about the physical and mental health services that may be available to them when they need that information to make decisions about their treatment, the Senator from Kansas is saying they cannot have it. I know that the Senator from Kansas does not intend it that way--putting patients at risk. It means that today in Oregon and in Kansas and all across the country where there are gag rules that keep patients from knowing of their rights, they will not be able to have that information. It is not available to them. The U.S. Senate is saying, instead of voting for legislation or allowing me to get 60 votes on my amendment, what we will do is not give those patients the rights they need, not make sure that they can know of all the physical and mental health services that they deserve, and instead tell them that sometime next year, sometime in the future, we will go on. I think it is a mistake. It puts patients at risk. This Member of the U.S. Senate is not willing to play that kind of Russian roulette with the well-being of patients in the fastest growing sector of American health care. I am happy to yield to the Senator.

Mr. WYDEN. Mr. President and colleagues, there is no question in my mind about the sincerity and good will of the Senator from Kansas. She, along with Senator Kennedy, have done, I think, an especially valuable service this session with the insurance involving portability. For the first time in America, because of the work of the Senator from Kansas, we are going to make sure that workers are not going to be locked into their jobs. They are going to have a chance to enjoy the American dream because of their hard work. No one questions the sincerity and the desire of the Senator from Kansas to tackle these very real and very human kinds of problems that affect so many of our families. I feel very strongly--and looking at the sense of the Senate, it calls for consulting public and private entities with expertise and quality health care service delivery. The fact is that the House, in hearings that were public, shown on C-SPAN and the like, did exactly that. They had extensive discussions with the very people that this sense-of-the-Senate resolution suggests we talk with. It would be one thing if there had been no discussions with these distinguished people in the private sector. Those discussions have taken place. They have been held. That is why Dr. Ganske, a Republican, and Congressman Markey, a Democrat, came together and got a unanimous vote to go forward and protect the rights of health care patients in the fastest growing part of American health care. We have done, it seems to me, the essence of this sense-of-the-Senate resolution, No. 1. No. 2, I think it puts patients at risk because it allows gag rules to go forward unimpeded in the months after this Congress adjourns. I hope my colleagues and the Senate understand just how pernicious these gag rules are. What these gag rules are all about is that a plan may say to a physician, ``You are making too many referrals outside the network, outside the health maintenance plan.'' The plan may say, ``I do not want to have a referral to an ophthalmologist or a cardiologist or another specialist.'' These are very anticonsumer provisions that are becoming a part of American health care. They have been documented. They are a matter of public record. I just think it is very risky business to say that instead of protecting the rights of the patients, instead of protecting the rights of the consumer, what we will do is study it a bit and talk to some of the same people that we already talked to, rather than protecting those rights of the patients. So this Senator believes that we should not have another study, should not have yet another analysis. If I could just briefly engage the chair of the committee, Senator Kassebaum, who I know is having some discussions on several matters. But I wanted to see if it might be possible to have the distinguished chair of the committee lay aside her sense-of-the-Senate resolution at this time, and perhaps we can have some more discussion toward seeing if, on a bipartisan basis, we can come up with some piece of legislation that has some teeth in it before we conclude with this bill, and that we recognize that a majority of Senators voted to put some real teeth into this issue. It wasn't 60; it was 51. But a majority of Senators said that they didn't think these gag clauses were in the interest of American patients. They said this was anticonsumer. I would like to see--like we have done with FDA and other matters--whether the distinguished chair of the committee and I could work a bit further on this between now and the end of the day and perhaps come back to the Senate with a bipartisan proposal that really would provide a measure of relief to patients at this time. Now, to do that, the Senator from Kansas would have to lay aside her sense-of-the-Senate proposal. I just ask if she would be willing to do that at this point, and during the interim, I ask that she and I and Senator Kennedy and our respective staffs, on a bipartisan basis, see if we can come up with a bipartisan proposal that would really have teeth in it and protect the rights of the patients. I yield to the Senator from Kansas.

Mr. WYDEN. If I might say further, I was asking the chair of the committee to lay aside, for the moment, her sense-of-the-Senate resolution so that, hopefully, the next time this comes up in the Senate--hopefully, later today--we would have a bipartisan proposal that would have some real teeth in it that would protect the rights of patients. Is that acceptable to the chair of the committee?

Mr. WYDEN

Mr. WYDEN. Senator Kassebaum and I are continuing to discuss these matters. I think it is fair to say, in fact, that Senator Kassebaum indicated that she thought it was appropriate to go on with further business, and we will continue to discuss the matters with respect to the gag rule a bit more.

Mr. WYDEN. Did the Senator from Alabama ask unanimous consent to lay aside----