1.
Short title; table of contents
(a)
This Act may be cited as the
Advance Directives 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. 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.
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.
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 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.
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:
R
Programs to increase awareness of advance directive planning
issues
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.
.
5.
GAO study and report on establishment of national advance
directive registry
(a)
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)
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.
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.
March 10, 2005
Read the second time and placed on the
calendar