1.Short title; table of
contents
(a)This Act may be cited as the Advance Directives Improvement and Education Act of
2005
.
(b)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.
2.
(a)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)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.
3.Medicare
coverage of End-of-Life planning consultations
(a)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)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:
(bbb)End-of-Life planning consultationThe 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)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)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’ servicesSection
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)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)The amendments made by this section shall apply to services
furnished on or after January 1, 2006.
4.Improvement of
policies related to the use and portability of advance directives
(a)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)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)
(1)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 amendmentIn 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.
5.Increasing
awareness of the importance of End-of-Life planningTitle 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:
RPrograms to
increase awareness of advance directive planning issues
399Z–1.Advance
directive education campaigns and information clearinghouses
(a)Advance
directive education campaignThe 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
clearinghouseThe 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)
(1)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)Any
grant awarded under paragraph (1) shall be for a period of 3 years.
(d)Authorization
of appropriationsThere are authorized to be appropriated to
carry out this section $25,000,000.
.
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)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)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 establishment of national advance directive registry
(1)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)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)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)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.