HR 1589
112th CONGRESS
1st Session
H. R. 1589
To amend the Social Security Act to provide for coverage of voluntary
advance care planning consultation under Medicare and Medicaid, and for other
purposes.
IN THE HOUSE OF REPRESENTATIVES
April 15, 2011
Mr. BLUMENAUER (for himself, Mr. HOLT, Mr. WU, Ms. BALDWIN, Ms. SCHAKOWSKY,
Mr. KIND, Mrs. CAPPS, and Ms. LINDA T. SANCHEZ of California) introduced the
following bill; which was referred to the Committee on Energy and Commerce,
and in addition to the Committee on Ways and Means, for a period to be subsequently
determined by the Speaker, in each case for consideration of such provisions
as fall within the jurisdiction of the committee concerned
A BILL
To amend the Social Security Act to provide for coverage of voluntary
advance care planning consultation under Medicare and Medicaid, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; FINDINGS; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Personalize Your Care Act of
2011'.
(b) Findings- Congress finds the following:
(1) All individuals should be afforded the opportunity to fully participate
in decisions related to their health care or the care of a person for whom
they are the proxy or surrogate.
(2) Every individual's values and goals should be identified, understood,
and respected. Particular attention should be paid to populations which
have not regularly had the opportunity to express their choices or preferences.
(3) Advance care planning plays a valuable role in achieving quality care
by informing physicians and family members of an individual's treatment
preferences should he or she become unable to direct care.
(4) Early advance care planning is ideal because a person's ability to make
decisions may diminish over time and the person may suddenly lose the capability
to participate in their health care decisions.
(5) Advance directives (such as living wills and durable powers of attorney
for health care) must be prepared while individuals have the capacity to
complete them and only apply to future medical circumstances when decisionmaking
capacity is lost. An individual can change or revoke an advance directive
at any time.
(6) Physician orders for life-sustaining treatment complement advance directives
by providing a process to focus patients' values, goals, and preferences
on current medical circumstances and to translate them into visible and
portable medical orders applicable across care settings. A patient (or proxy
or surrogate) can change or revoke a physician order for life-sustaining
treatment at any time.
(7) Advance care planning should be routinely conducted in community and
clinical practices. Care plans should be periodically revisited to reflect
a person's changes in values and perceptions at different stages and circumstances
of life. This shared decisionmaking and collaborative planning between the
patient (or proxy or surrogate) and the clinician of their choice will lead
to more person-centered, culturally appropriate care.
(8) Effective, respectful, and culturally competent advance care planning
requires recognition that both overtreatment and undertreatment may be concerns
of individuals contemplating future care.
(9) More should be done within local health systems to establish specific
policies and programs to assist people with sensory, mental, and other disabilities
in order to maximize the degree to which they are active participants in
the decisions related to their health care, including training health care
providers to be aware of augmentative communication devices and how to communicate
with people with developmental, psychiatric, speech, and sensory disabilities.
(10) Studies funded by the Agency for Healthcare Research and Quality have
shown that individuals who talked with their families or physicians about
their preferences for care had less fear and anxiety, felt they had more
ability to influence and direct their medical care, believed that their
physicians had a better understanding of their wishes, and indicated a greater
understanding and comfort level than they had before the discussion. Patients
who had advance planning discussions with their physicians continued to
discuss and talk about these concerns with their families. Such discussions
enabled patients and families to reconcile any differences about care and
could help the family and physician come to agreement if they should need
to make decisions for the patient.
(11) A decade of research has demonstrated that physician orders for life-sustaining
treatment effectively convey patient preferences and guide medical personnel
toward medical treatment aligned with patient wishes. Programs for these
orders have developed locally on a statewide or communitywide basis and
have different program names, forms, and policies, but all follow the principle
of patient-centered care.
(12) According to research published in the Archives of Internal Medicine,
between 65 and 76 percent of physicians whose patients had an advance directive
were not aware that it existed.
(13) Including completed advance care planning documents within a patient's
electronic health record can increase the likelihood these documents are
kept up-to-date and available at the right place at the right time.
(c) Table of Contents- The table of contents of this Act is as follows:
Sec. 1. Short title; findings; table of contents.
Sec. 2. Voluntary advance care planning consultation coverage under Medicare
and Medicaid.
Sec. 3. Grants for programs for physician orders for life-sustaining treatment.
Sec. 4. Advance care planning standards for electronic health records.
Sec. 5. Portability of advance directives.
SEC. 2. VOLUNTARY ADVANCE CARE PLANNING CONSULTATION COVERAGE UNDER MEDICARE
AND MEDICAID.
(1) IN GENERAL- Section 1861 of the Social Security Act (42 U.S.C. 1395x)
is amended--
(A) in subsection (s)(2)--
(i) by striking `and' at the end of subparagraph (EE);
(ii) by adding `and' at the end of subparagraph (FF); and
(iii) by adding at the end the following new subparagraph:
`(GG) voluntary advance care planning consultation (as defined in subsection
(iii)(1));'; and
(B) by adding at the end the following new subsection:
`Voluntary Advance Care Planning Consultation
`(iii)(1) Subject to paragraphs (3) and (4), the term `voluntary advance care
planning consultation' means an optional consultation between the individual
and a practitioner described in paragraph (2) regarding advance care planning.
Such consultation may include the following, as specified by the Secretary:
`(A) An explanation by the practitioner of advance care planning and the
uses of advance directives.
`(B) An explanation by the practitioner of the role and responsibilities
of a proxy or surrogate.
`(C) An explanation by the practitioner of the services and supports available
under this title during chronic and serious illness, including palliative
care, home care, long-term care, and hospice care.
`(D) An explanation by the practitioner of physician orders for life-sustaining
treatment or similar orders in States where such orders or similar orders
exist.
`(E) Facilitation by the practitioner of shared decisionmaking with the
patient (or proxy or surrogate) which may include--
`(i) use of decision aids and patient support tools;
`(ii) the provision of patient-centered, easy-to-understand information
about advance care planning or disease-specific care planning; and
`(iii) the incorporation of patient preferences and values into the medical
plan, an advance directive, and a physician order for life-sustaining
treatment as appropriate.
`(2) A practitioner described in this paragraph is a physician (as defined
in subsection (r)(1)), nurse practitioner, or physician assistant.
`(3) Payment may not be made under this title for a voluntary advance care
planning consultation furnished more often than once every 5 years unless
there is a significant change in the health, health-related condition, or
care setting of the individual.
`(4) For purposes of this section, the term `physician order for life-sustaining
treatment' means, with respect to an individual, an actionable medical order
relating to the treatment of that individual that effectively communicates
the individual's preferences regarding life-sustaining treatment, is in a
form that is sanctioned or approved under State law or regulation or is widely
recognized by health care providers in the State, and permits it to be followed
by health care professionals across the continuum of care. Such an order may
be changed or revoked by the individual (or proxy or surrogate) at any time.'.
(2) CONSTRUCTION- The voluntary advance care planning consultation described
in section 1861(iii) of the Social Security Act, as added by paragraph (1),
shall be completely optional. Nothing in this section shall--
(A) require an individual to complete an advance directive or a physician
order for life-sustaining treatment;
(B) require an individual to consent to restrictions on the amount, duration,
or scope of medical benefits an individual is entitled to receive under
this title; or
(C) violate the Assisted Suicide Funding Restriction Act of 1997 (Public
Law 105-12) by encouraging the promotion of suicide or assisted suicide.
(3) PAYMENT- Section 1848(j)(3) of such Act (42 U.S.C. 1395w-4(j)(3)) is
amended by inserting `(2)(GG),' after `(2)(FF),'.
(4) FREQUENCY LIMITATION- Section 1862(a) of such Act (42 U.S.C. 1395y(a))
is amended--
(i) in subparagraph (O), by striking `and' at the end;
(ii) in subparagraph (P) by striking the semicolon at the end and inserting
`, and'; and
(iii) by adding at the end the following new subparagraph:
`(Q) in the case of voluntary advance care planning consultations (as
defined in paragraph (1) of section 1861(iii)), which are performed more
frequently than is covered under such section;'; and
(B) in paragraph (7), by striking `or (P)' and inserting `(P), or (Q)'.
(5) EFFECTIVE DATE- The amendments made by this subsection shall apply to
consultations furnished on or after January 1, 2012.
(1) MANDATORY BENEFIT- Section 1902(a)(10)(A) of the Social Security Act
(42 U.S.C. 1396a(a)(10)(A)) is amended, in the matter preceding clause (i),
by striking `and (28)' and inserting `, (28), and (29)'.
(2) MEDICAL ASSISTANCE- Section 1905(a) of such Act (42 U.S.C. 1396d(a))
is amended--
(A) by striking `and' at the end of paragraph (28);
(B) by redesignating paragraph (29) as paragraph (30); and
(C) by inserting after paragraph (28) the following new paragraph:
`(29) voluntary advance care planning consultation (as defined in section
1861(iii)(1)); and'.
(c) Definition of Advance Directive Under Medicare and Medicaid-
(1) MEDICARE- Section 1866(f)(3) of the Social Security Act (42 U.S.C. 1395cc(f)(3))
is amended by striking `means' and all that follows and inserting the following:
`means a living will, medical directive, health care power of attorney,
durable power of attorney for health care, advance health care directive,
health care directive, or other statement that is recorded and completed
in a manner recognized under State law by an individual with capacity to
make health care decisions and that indicates the individual's wishes regarding
medical treatment in the event of future incapacity of the individual to
make health care decisions.'.
(2) MEDICAID- Section 1902(w)(4) of such Act (42 U.S.C. 1396a(w)(4)) is
amended by striking `means' and all that follows and inserting the following:
`means a living will, medical directive, health care power of attorney,
durable power of attorney for health care, advance health care directive,
health care directive, or other statement that is recorded and completed
in a manner recognized under State law by an individual with capacity to
make health care decisions and that indicates the individual's wishes regarding
medical treatment in the event of future incapacity of the individual to
make health care decisions.'.
(d) Effective Date- The amendments made by this section take effect on January
1, 2012.
SEC. 3. GRANTS FOR PROGRAMS FOR PHYSICIAN ORDERS FOR LIFE-SUSTAINING TREATMENT.
(a) In General- The Secretary of Health and Human Services shall make grants
to eligible entities for the purpose of--
(1) establishing statewide programs for physician orders for life-sustaining
treatment; or
(2) expanding or enhancing existing programs for physician orders for life-sustaining
treatment.
(b) Authorized Activities- Activities funded through a grant under this section
for an area may include--
(1) developing such a program for the area that includes hospitals, home
care, hospice, long-term care, community and assisted living residences,
skilled nursing facilities, and emergency medical services within a State;
and
(2) expanding an existing program for physician orders regarding life-sustaining
treatment to serve more patients or enhance the quality of services, including
educational services for patients and patients' families, training of health
care professionals, or establishing a physician orders for life-sustaining
treatment registry.
(c) Distribution of Funds- In funding grants under this section, the Secretary
shall ensure that, of the funds appropriated to carry out this section for
each fiscal year--
(1) at least one-half are used for establishing new programs for physician
orders regarding life-sustaining treatment; and
(2) remaining funds are to be used for expanding or enhancing existing programs
for physician orders regarding life-sustaining treatment.
(d) Definitions- In this section:
(1) The term `eligible entity' includes--
(A) an academic medical center, a medical school, a State health department,
a State medical association, a multistate task force, a hospital, or a
health system capable of administering a program for physician orders
regarding life-sustaining treatment for a State; or
(B) any other health care agency or entity as the Secretary determines
appropriate.
(2) The term `physician order for life-sustaining treatment' has the meaning
given such term in section 1861(iii)(4) of the Social Security Act, as added
by section 2.
(3) The term `program for physician orders for life-sustaining treatment'
means a program that--
(A) supports the active use of physician orders for life-sustaining treatment
in the State; and
(B) is guided by a coalition of stakeholders that includes patient advocacy
groups and representatives from across the continuum of health care services,
such as disability rights advocates, senior advocates, emergency medical
services, long-term care, medical associations, hospitals, home health,
hospice, the State agency responsible for senior and disability services,
and the State department of health.
(4) The term `Secretary' means the Secretary of Health and Human Services.
(e) Authorization of Appropriations- To carry out this section, there are
authorized to be appropriated such sums as may be necessary for each of the
fiscal years 2012 through 2017.
SEC. 4. ADVANCE CARE PLANNING STANDARDS FOR ELECTRONIC HEALTH RECORDS.
Notwithstanding section 3004(b)(3) of the Public Health Service Act (42 U.S.C.
300jj-14(b)(3)), not later than January 1, 2013, the Secretary of Health and
Human Services shall adopt, by rule, standards for a qualified electronic
health record (as defined in section 3000(13) of such Act (42 U.S.C. 300jj(13)),
with respect to patient communications with a health care provider about values
and goals of care, to adequately display the following:
(1) The patient's current advance directive (as defined in section 1866(f)(3)
of the Social Security Act (42 U.S.C. 1395cc(f)(3)), as applicable.
(2) The patient's current physician order for life-sustaining treatment
(as defined in section 1861(iii)(4) of the Social Security Act (42 U.S.C.
1395x(iii)(4)), as applicable.
A standard adopted under this section shall be treated as a standard adopted
under section 3004 of the Public Health Service Act (42 U.S.C. 300jj-14) for
purposes of certifying qualified electronic health records pursuant to section
3001(c)(5) of such Act (42 U.S.C. 300jj-11(c)(5)).
SEC. 5. PORTABILITY OF ADVANCE DIRECTIVES.
(a) In General- Section 1866(f) of the Social Security Act (42 U.S.C. 1395cc(f))
is amended by adding at the end the following new paragraph:
`(5)(A) An advance directive validly executed outside the State in which such
directive is presented must be given effect by a provider of services or organization
to the same extent as an advance directive validly executed under the law
of the State in which it is presented.
`(B) In the absence of knowledge to the contrary, a physician or other health
care provider or organization may presume that a written advance health care
directive or similar instrument, regardless of where executed, is valid.
`(C) In the absence of a validly executed advance directive, any authentic
expression of a person's wishes with respect to health care shall be honored.
`(D) The provisions of this paragraph shall preempt any State law on advance
directive portability to the extent such law is inconsistent with such provisions.
Nothing in the paragraph shall be construed to authorize the administration
of health care treatment otherwise prohibited by the laws of the State in
which the directive is presented.'.
(b) Medicaid- Section 1902(w) of the Social Security Act (42 U.S.C. 1396a(w))
is amended by adding at the end the following new paragraph:
`(6)(A) An advance directive validly executed outside the State in which such
directive is presented must be given effect by a provider or organization
to the same extent as an advance directive validly executed under the law
of the State in which it is presented.
`(B) In the absence of knowledge to the contrary, a physician, other health
care provider, or organization may presume that a written advance health care
directive or similar instrument, regardless of where executed, is valid.
`(C) In the absence of a validly executed advance directive, any authentic
expression of a person's wishes with respect to health care shall be honored.
`(D) The provisions of this paragraph shall preempt any State law on advance
directive portability to the extent such law is inconsistent with such provisions.
Nothing in the paragraph shall be construed to authorize the administration
of health care treatment otherwise prohibited by the laws of the State in
which the directive is presented.'.
END
