HR 5702
110th CONGRESS
2d Session
H. R. 5702
To amend titles XVIII and XIX of the Social Security Act to promote
the use of advance directives, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
April 3, 2008
Mr. LEVIN (for himself, Mr. CASTLE, Mr. MCDERMOTT, Mr. KILDEE, Mrs. MCCARTHY
of New York, Mr. MOORE of Kansas, Mr. FARR, Ms. DELAURO, Ms. SLAUGHTER, Ms.
WASSERMAN SCHULTZ, Mr. GEORGE MILLER of California, Ms. HOOLEY, Mr. CUMMINGS,
Mr. BLUMENAUER, Mr. HIGGINS, Mr. WU, and Mr. COHEN) introduced the following
bill; which was referred to the Committee on Energy and Commerce
A BILL
To amend titles XVIII and XIX of the Social Security Act to promote
the use of advance directives, 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; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Advance Directive Promotion
Act of 2008'.
(b) Table of Contents- The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Improvement of policies related to the use and portability of advance
directives.
Sec. 3. Medicare coverage of an end-of-life planning consultation as part
of an initial preventive physical examination.
Sec. 4. National information hotline for end-of-life decisionmaking and
hospice care.
Sec. 5. Increasing awareness of the importance of end-of-life planning.
SEC. 2. IMPROVEMENT OF POLICIES RELATED TO THE USE AND PORTABILITY OF ADVANCE
DIRECTIVES.
(a) Medicare- Section 1866(f) of the Social Security Act (42 U.S.C. 1395cc(f))
is amended--
(A) in subparagraph (B), by inserting `and if presented by the individual
(or on behalf of the individual), to include the content of such advance
directive in a prominent part of such record' before the semicolon at
the end;
(B) in subparagraph (D), by striking `and' after the semicolon at the
end;
(C) in subparagraph (E), by striking the period at the end and inserting
`; and'; and
(D) by inserting after subparagraph (E) the following new subparagraph:
`(F) to provide each such individual with the opportunity to discuss issues
relating to the information provided to that individual pursuant to subparagraph
(A) with an appropriately trained professional.';
(2) in paragraph (3), by striking `a written' and inserting `an'; and
(3) by adding at the end the following new paragraph:
`(5)(A) In addition to the requirements of paragraph (1), a provider of services
shall give effect to a valid advance directive executed outside the State
in which such directive is presented to the same extent as such provider would
give effect to a valid advance directive executed under the law of the State
in which it is presented. In the absence of knowledge to the contrary, such
a provider may presume that such an advance directive executed outside the
State in which it is presented is valid. Nothing in this 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) The provisions of this paragraph shall preempt any State law to the extent
such law is inconsistent with such provisions. The provisions of this paragraph
shall not preempt any State law that provides for greater portability, more
deference to a patient's wishes, or more latitude in determining a patient's
wishes with respect to health care.'.
(b) Medicaid- Section 1902(w) of the Social Security Act (42 U.S.C. 1396a(w))
is amended--
(A) in subparagraph (B)--
(i) by striking `in the individual's medical record' and inserting `in
a prominent part of the individual's current medical record'; and
(ii) by inserting `and if presented by the individual (or on behalf
of the individual), to include the content of such advance directive
in a prominent part of such record' before the semicolon at the end;
(B) in subparagraph (D), by striking `and' after the semicolon at the
end;
(C) in subparagraph (E), by striking the period at the end and inserting
`; and'; and
(D) by inserting after subparagraph (E) the following new subparagraph:
`(F) to provide each such individual with the opportunity to discuss issues
relating to the information provided to that individual pursuant to subparagraph
(A) with an appropriately trained professional.';
(2) in paragraph (4), by striking `a written' and inserting `an'; and
(3) by adding at the end the following paragraph:
`(6)(A) In addition to the requirements of paragraph (1), a provider shall
give effect to a valid advance directive executed outside the State in which
such directive is presented to the same extent as such provider would give
effect to a valid advance directive executed under the law of the State in
which it is presented. In the absence of knowledge to the contrary, such a
provider may presume that such an advance directive executed outside the State
in which it is presented is valid. Nothing in this 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) The provisions of this paragraph shall preempt any State law to the extent
such law is inconsistent with such provisions. The provisions of this paragraph
shall not preempt any State law that provides for greater portability, more
deference to a patient's wishes, or more latitude in determining a patient's
wishes with respect to health care.'.
(1) IN GENERAL- Subject to paragraph (2), the amendments made by subsections
(a) and (b) shall apply to provider agreements entered into, renewed, or
extended under title XVIII of the Social Security Act (42 U.S.C. 1395 et
seq.), and to State plans under title XIX of such Act (42 U.S.C. 1396 et
seq.), on or after such date as the Secretary of Health and Human Services
specifies, but in no case may such date be later than 1 year after the date
of enactment of this Act.
(2) EXTENSION OF EFFECTIVE DATE FOR STATE LAW AMENDMENT- In the case of
a State plan under title XIX of the Social Security Act (42 U.S.C. 1396
et seq.) which the Secretary of Health and Human Services determines requires
State legislation in order for the plan to meet the additional requirements
imposed by the amendments made by subsection (b), the State plan shall not
be regarded as failing to comply with the requirements of such title solely
on the basis of its failure to meet these additional requirements before
the first day of the first calendar quarter beginning after the close of
the first regular session of the State legislature that begins after the
date of enactment of this Act. For purposes of the previous sentence, in
the case of a State that has a 2-year legislative session, each year of
the session is considered to be a separate regular session of the State
legislature.
SEC. 3. MEDICARE COVERAGE OF AN END-OF-LIFE PLANNING CONSULTATION AS PART
OF AN INITIAL PREVENTIVE PHYSICAL EXAMINATION.
(a) In General- Section 1861(ww) of the Social Security Act (42 U.S.C. 1395x(ww))
is amended--
(1) in paragraph (1), by striking `paragraph (2),' and inserting `paragraph
(2) and an end-of-life planning consultation (as defined in paragraph (3)),';
and
(2) by adding at the end the following new paragraph:
`(3) For purposes of paragraph (1), the term `end-of-life planning consultation'
means a consultation between the physician and an individual regarding--
`(A) the importance of preparing advance directives in case an injury or
illness causes the individual to be unable to make health care decisions;
`(B) the situations in which an advance directive is likely to be relied
upon;
`(C) the reasons why the development of a comprehensive end-of-life plan
is beneficial and the reasons why such a plan should be updated periodically
as the health of the individual changes;
`(D) the identification of resources that an individual may use to determine
the requirements of the State in which such individual resides so that the
treatment wishes of that individual will be carried out if the individual
is unable to communicate those wishes, including requirements regarding
the designation of a surrogate decision maker (also known as a health care
proxy); and
`(E) whether or not the physician is willing to follow the individual's
wishes as expressed in an advance directive.'.
(b) Effective Date- The amendments made by this section shall apply to initial
preventive physical examinations furnished on or after January 1, 2009.
SEC. 4. NATIONAL INFORMATION HOTLINE FOR END-OF-LIFE DECISIONMAKING AND
HOSPICE CARE.
The Secretary of Health and Human Services, acting through the Administrator
of the Centers for Medicare & Medicaid Services, shall operate directly,
or by grant, contract, or interagency agreement, out of funds otherwise appropriated
to the Secretary, a clearinghouse and a 24-hour toll-free telephone hotline
in order to provide consumer information about advance directives (as defined
in section 1866(f)(3) of the Social Security Act (42 U.S.C. 1395cc(f)(3)),
as amended by section 2(a)), end-of-life decisionmaking, and available end-of-life
and hospice care services. In carrying out the preceding sentence, the Administrator
may designate an existing clearinghouse and 24-hour toll-free telephone hotline
or, if no such entity is appropriate, may establish a new clearinghouse and
a 24-hour toll-free telephone hotline.
SEC. 5. INCREASING AWARENESS OF THE IMPORTANCE OF END-OF-LIFE PLANNING.
Title III of the Public Health Service Act (42 U.S.C. 241 et seq.) is amended
by adding at the end the following new part:
`PART S--PROGRAMS TO INCREASE AWARENESS OF ADVANCE DIRECTIVE PLANNING
ISSUES
`SEC. 399FF. ADVANCE DIRECTIVE EDUCATION CAMPAIGNS.
`(a) Advance Directive Education Campaign- The Secretary shall, directly or
through grants awarded under subsection (b), conduct a national public education
campaign--
`(1) to raise public awareness of the importance of planning for care near
the end of life;
`(2) to improve the public's understanding of the various situations in
which individuals may find themselves if they become unable to express their
health care wishes;
`(3) to explain the need for readily available legal documents that express
an individual's wishes, through advance directives (including living wills,
comfort care orders, and durable powers of attorney for health care); and
`(4) to educate the public about the availability of hospice care and palliative
care.
`(1) IN GENERAL- The Secretary shall use at least 60 percent of the funds
appropriated under subsection (c) for the purpose of awarding grants to
public or nonprofit private entities (including States or political subdivisions
of a State), or a consortium of any of such entities, for the purpose of
conducting education campaigns under subsection (a).
`(2) PERIOD- Any grant awarded under paragraph (1) shall be for a period
of 3 years.
`(c) Authorization of Appropriations- There are authorized to be appropriated
to carry out this section $25,000,000.'.
END
