[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 570 Placed on Calendar Senate (PCS)]






                                                        Calendar No. 49
109th CONGRESS
  1st Session
                                 S. 570

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

                             March 9, 2005

Mr. Nelson of Florida introduced the following bill; which was read the 
                               first time

                             March 10, 2005

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 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 
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. Improvement of policies related to the use and portability of 
                            advance directives.
Sec. 4. Increasing awareness of the importance of End-of-Life planning.
Sec. 5. GAO study and report on establishment of national advance 
                            directive registry.
Sec. 6. Advance directives at State department of motor vehicles.

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. 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. 4. 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.

    ``The Secretary 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.''.

SEC. 5. GAO STUDY AND REPORT ON ESTABLISHMENT OF NATIONAL ADVANCE 
              DIRECTIVE REGISTRY.

    (a) 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.
    (b) 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 subsection (a) 
together with recommendations for such legislation and administrative 
action as the Comptroller General of the United States determines to be 
appropriate.

SEC. 6. ADVANCE DIRECTIVES AT STATE DEPARTMENT OF MOTOR VEHICLES.

    Each State shall establish a program of providing information on 
the advance directives clearinghouse established pursuant to section 
399Z-1 of the Public Health Service Act to individuals who are 
residents of the State at such State's department of motor vehicles. 
Such program shall be modeled after the program of providing 
information regarding organ donation established at the State's 
department of motor vehicles, if such State has such an organ donation 
program.
                                                        Calendar No. 49

109th CONGRESS

  1st Session

                                 S. 570

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                             March 10, 2005

            Read the second time and placed on the calendar