110th CONGRESS
1st Session
S. 465
To amend titles XVIII and XIX of the Social Security Act and title
III of the Public Health Service Act to improve access to information about
individuals' health care options and legal rights for care near the end
of life, to promote advance care planning and decisionmaking so that individuals'
wishes are known should they become unable to speak for themselves, to engage
health care providers in disseminating information about and assisting in
the preparation of advance directives, which include living wills and durable
powers of attorney for health care, and for other purposes.
IN THE SENATE OF THE UNITED STATES
January 31, 2007
Mr. NELSON of Florida (for himself, Mr. LUGAR, Mr. ROCKEFELLER, Ms. COLLINS,
Mr. DURBIN, and Mr. BINGAMAN) introduced the following bill; which was read
twice and referred to the Committee on Finance
A BILL
To amend titles XVIII and XIX of the Social Security Act and title
III of the Public Health Service Act to improve access to information about
individuals' health care options and legal rights for care near the end
of life, to promote advance care planning and decisionmaking so that individuals'
wishes are known should they become unable to speak for themselves, to engage
health care providers in disseminating information about and assisting in
the preparation of advance directives, which include living wills and durable
powers of attorney for health care, 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.
This Act may be cited as the `Advance Directives Improvement and Education
Act of 2007'.
SEC. 2. ADVANCE DIRECTIVES.
(a) Findings- Congress makes the following findings:
(1) Every year 2,500,000 people die in the United States. Eighty percent
of those people die in institutions such as hospitals, nursing homes,
and other facilities. Chronic illnesses, such as cancer and heart disease,
account for 2 out of every 3 deaths.
(2) In 1997, the Supreme Court of the United States, in its decisions
in Washington v. Glucksberg and Vacco v. Quill, reaffirmed the constitutional
right of competent adults to refuse unwanted medical treatment. In those
cases, the Court stressed the use of advance directives as a means of
safeguarding that right should those adults become incapable of deciding
for themselves.
(3) A survey published in 2005 estimated that the overall prevalence of
advance directives is 29 percent of the general population, despite the
passage of the Patient Self-Determination Act in 1990, which requires
that health care providers tell patients about advance directives.
(4) Competent adults should complete advance care plans stipulating their
health care decisions in the event that they become unable to speak for
themselves. Through the execution of advance directives, including living
wills and durable powers of attorney for health care according to the
laws of the State in which they reside, individuals can protect their
right to express their wishes and have them respected.
(b) Purposes- The purposes of this section are to improve access to information
about individuals' health care options and legal rights for care near the
end of life, to promote advance care planning and decisionmaking so that
individuals' wishes are known should they become unable to speak for themselves,
to engage health care providers in disseminating information about and assisting
in the preparation of advance directives, which include living wills and
durable powers of attorney for health care, and for other purposes.
(c) Medicare Coverage of End-of-Life Planning and Consultations as Part
of Initial Preventive Physical Examination-
(1) IN GENERAL- Section 1861(ww) of the Social Security Act (42 U.S.C.
1395x(ww)) is amended--
(A) in paragraph (1), by striking `paragraph (2),' and inserting `paragraph
(2) and an end-of-life planning consultation (as defined in paragraph
(3)),'; and
(B) 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 that the development of a comprehensive end-of-life plan
is beneficial and the reasons that 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 (health care proxy); and
`(E) whether or not the physician is willing to follow the individual's
wishes as expressed in an advance directive.'.
(2) EFFECTIVE DATE- The amendments made by paragraph (1) shall apply to
initial preventive physical examinations provided on or after January
1, 2008.
(d) Improvement of Policies Related to the Use and Portability of Advance
Directives-
(1) MEDICARE- Section 1866(f) of the Social Security Act (42 U.S.C. 1395cc(f))
is amended--
(i) 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;
(ii) in subparagraph (D), by striking `and' after the semicolon at
the end;
(iii) in subparagraph (E), by striking the period at the end and inserting
`; and'; and
(iv) by inserting after subparagraph (E) the following new subparagraph:
`(F) to provide each individual with the opportunity to discuss issues
relating to the information provided to that individual pursuant to subparagraph
(A) with an appropriately trained professional.';
(B) in paragraph (3), by striking `a written' and inserting `an'; and
(C) by adding at the end the following new paragraph:
`(5)(A) In addition to the requirements of paragraph (1), a provider of
services, Medicare Advantage organization, or prepaid or eligible organization
(as the case may be) shall give effect to an advance directive executed
outside the State in which such directive is presented, even one that does
not appear to meet the formalities of execution, form, or language required
by the State in which it is presented to the same extent as such provider
or organization would give effect to an advance directive that meets such
requirements, except that a provider or organization may decline to honor
such a directive if the provider or organization can reasonably demonstrate
that it is not an authentic expression of the individual's wishes concerning
his or her health care. Nothing in this paragraph shall be construed to
authorize the administration of medical 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.'.
(2) MEDICAID- Section 1902(w) of the Social Security Act (42 U.S.C. 1396a(w))
is amended--
(i) 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;
(ii) in subparagraph (D), by striking `and' after the semicolon at
the end;
(iii) in subparagraph (E), by striking the period at the end and inserting
`; and'; and
(iv) by inserting after subparagraph (E) the following new subparagraph:
`(F) to provide each individual with the opportunity to discuss issues
relating to the information provided to that individual pursuant to subparagraph
(A) with an appropriately trained professional.';
(B) in paragraph (4), by striking `a written' and inserting `an'; and
(C) by adding at the end the following paragraph:
`(6)(A) In addition to the requirements of paragraph (1), a provider or
organization (as the case may be) shall give effect to an advance directive
executed outside the State in which such directive is presented, even one
that does not appear to meet the formalities of execution, form, or language
required by the State in which it is presented to the same extent as such
provider or organization would give effect to an advance directive that
meets such requirements, except that a provider or organization may decline
to honor such a directive if the provider or organization can reasonably
demonstrate that it is not an authentic expression of the individual's wishes
concerning his or her health care. Nothing in this paragraph shall be construed
to authorize the administration of medical 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.'.
(A) IN GENERAL- Subject to subparagraph (B), the amendments made by
paragraphs (1) and (2) shall apply to provider agreements and contracts
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.
(B) 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 paragraph (2), 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.
(e) 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 R--PROGRAMS TO INCREASE AWARENESS OF ADVANCE DIRECTIVE PLANNING
ISSUES
`SEC. 399Z-1. ADVANCE DIRECTIVE EDUCATION CAMPAIGNS AND INFORMATION CLEARINGHOUSES.
`(a) Advance Directive Education Campaign- The Secretary shall, directly
or through grants awarded under subsection (c), 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.
`(b) Information Clearinghouse- The Secretary, directly or through grants
awarded under subsection (c), shall provide for the establishment of a national,
toll-free, information clearinghouse as well as clearinghouses that the
public may access to find out about State-specific information regarding
advance directive and end-of-life decisions.
`(1) IN GENERAL- The Secretary shall use at least 60 percent of the funds
appropriated under subsection (d) 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) and establishing
information clearinghouses under subsection (b).
`(2) PERIOD- Any grant awarded under paragraph (1) shall be for a period
of 3 years.
`(d) Authorization of Appropriations- There are authorized to be appropriated
to carry out this section $25,000,000.'.
(f) GAO Study and Report on Establishment of National Advance Directive
Registry-
(1) STUDY- The Comptroller General of the United States shall conduct
a study on the feasibility of a national registry for advance directives,
taking into consideration the constraints created by the privacy provisions
enacted as a result of the Health Insurance Portability and Accountability
Act of 1996 (Public Law 104-191).
(2) REPORT- Not later than 18 months after the date of enactment of this
Act, the Comptroller General of the United States shall submit to Congress
a report on the study conducted under paragraph (1) together with recommendations
for such legislation and administrative action as the Comptroller General
of the United States determines to be appropriate.
(g) Effective Date- Except as provided in subsections (c) and (d), this
section and the amendments made by this section shall take effect on the
date of enactment of this Act.
END
