[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2058 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 2058
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 HOUSE OF REPRESENTATIVES
May 3, 2005
Mr. Levin (for himself, Mr. Abercrombie, Mr. Cardin, Mr. Case, Mr.
Castle, Mr. Cleaver, Mr. Cummings, Ms. DeLauro, Mr. Engel, Mr. Farr,
Mr. Holden, Mr. Kildee, Mr. Kind, Mr. Kucinich, Mr. Lewis of Georgia,
Mrs. Maloney, Mrs. McCarthy, Mr. McDermott, Mr. McNulty, Mr. Meek of
Florida, Mr. George Miller of California, Mr. Moore of Kansas, Mr.
Ross, Ms. Slaughter, Mr. Snyder, Mr. Udall of Colorado, Ms. Wasserman
Schultz, Mr. Waxman, Mr. Davis of Illinois, and Mr. Owens) 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 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Advance Directives
Improvement and Education Act of 2005''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Medicare coverage of end-of-life planning consultations.
Sec. 4. Improvement of policies related to the use and portability of
advance directives.
Sec. 5. Increasing awareness of the importance of end-of-life planning.
Sec. 6. GAO studies and reports on end-of-life planning issues.
SEC. 2. FINDINGS AND PURPOSES.
(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 January 2004, a study published in the Journal of
the American Medical Association concluded that many people
dying in institutions have unmet medical, psychological, and
spiritual needs. Moreover, family members of decedents who
received care at home with hospice services were more likely to
report a favorable dying experience.
(3) 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.
(4) A study published in 2002 estimated that the overall
prevalence of advance directives is between 15 and 20 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.
(5) 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 Act 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.
SEC. 3. MEDICARE COVERAGE OF END-OF-LIFE PLANNING CONSULTATIONS.
(a) Coverage.--Section 1861(s)(2) of the Social Security Act (42
U.S.C. 1395x(s)(2)), as amended by section 642(a) of the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003 (Public
Law 108-173; 117 Stat. 2322), is amended--
(1) in subparagraph (Y), by striking ``and'' at the end;
(2) in subparagraph (Z), by inserting ``and'' at the end;
and
(3) by adding at the end the following new subparagraph:
``(AA) end-of-life planning consultations (as defined in
subsection (bbb));''.
(b) Services Described.--Section 1861 of the Social Security Act
(42 U.S.C. 1395x), as amended by section 706(b) of the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003 (Public
Law 108-173; 117 Stat. 2339), is amended by adding at the end the
following new subsection:
``End-of-Life Planning Consultation
``(bbb) The term `end-of-life planning consultation' means
physicians' services--
``(1) consisting of 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; and
``(2) that are furnished to an individual on an annual
basis or immediately following any major change in an
individual's health condition that would warrant such a
consultation (whichever comes first).''.
(c) Waiver of Deductible and Coinsurance.--
(1) Deductible.--The first sentence of section 1833(b) of
the Social Security Act (42 U.S.C. 1395l(b)) is amended--
(A) by striking ``and'' before ``(6)''; and
(B) by inserting before the period at the end the
following: ``, and (7) such deductible shall not apply
with respect to an end-of-life planning consultation
(as defined in section 1861(bbb))''.
(2) Coinsurance.--Section 1833(a)(1) of the Social Security
Act (42 U.S.C. 1395l(a)(1)) is amended--
(A) in clause (N), by inserting ``(or 100 percent
in the case of an end-of-life planning consultation, as
defined in section 1861(bbb))'' after ``80 percent'';
and
(B) in clause (O), by inserting ``(or 100 percent
in the case of an end-of-life planning consultation, as
defined in section 1861(bbb))'' after ``80 percent''.
(d) Payment for Physicians' Services.--Section 1848(j)(3) of the
Social Security Act (42 U.S.C. 1395w-4(j)(3)), as amended by section
611(c) of the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (Public Law 108-173; 117 Stat. 2304), is
amended by inserting ``(2)(AA),'' after ``(2)(W),''.
(e) Frequency Limitation.--Section 1862(a)(1) of the Social
Security Act (42 U.S.C. 1395y(a)(1)), as amended by section 613(c) of
the Medicare Prescription Drug, Improvement, and Modernization Act of
2003 (Public Law 108-173; 117 Stat. 2306), is amended--
(1) by striking ``and'' at the end of subparagraph (L);
(2) by striking the semicolon at the end of subparagraph
(M) and inserting ``, and''; and
(3) by adding at the end the following new subparagraph:
``(N) in the case of end-of-life planning consultations (as
defined in section 1861(bbb)), which are performed more
frequently than is covered under paragraph (2) of such
section;''.
(f) Effective Date.--The amendments made by this section shall
apply to services furnished on or after January 1, 2006.
SEC. 4. 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--
(1) in paragraph (1)--
(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 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, 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.''.
(b) Medicaid.--Section 1902(w) of the Social Security Act (42
U.S.C. 1396a(w)) is amended--
(1) in paragraph (1)--
(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 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 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.''.
(c) Effective Dates.--
(1) In general.--Subject to paragraph (2), the amendments
made by subsections (a) and (b) 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.
(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. 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 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.
``(c) Grants.--
``(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.''.
SEC. 6. GAO STUDIES AND REPORTS ON END-OF-LIFE PLANNING ISSUES.
(a) Study and Report on Compliance With Advance Directives and
Other Advance Planning Documents.--
(1) Study.--The Comptroller General of the United States
shall conduct a study on the effectiveness of advance
directives in making patients' wishes known and honored by
health care providers.
(2) Report.--Not later than the date that is 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.
(b) Study and Report on Implementation of the Medicare Coverage for
End-of-Life Planning Consultations.--
(1) Study.--The Comptroller General of the United States
shall conduct a study on the implementation of the amendments
made by section 3 (relating to medicare coverage of end-of-life
planning consultations).
(2) Report.--Not later than 2 years 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.
(c) 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.
(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.
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