Short title; table of contents

(a)

Short title

This Act may be cited as the Advance Directive Promotion Act of 2008. (b)

Table of contents

The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Improvement of policies related to the use and portability of advance directives.

Sec. 3. Medicare coverage of an end-of-life planning consultation as part of an initial preventive physical examination.

Sec. 4. National information hotline for end-of-life decisionmaking and hospice care.

Sec. 5. Increasing awareness of the importance of end-of-life planning.

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 such 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 shall give effect to a valid advance directive executed outside the State in which such directive is presented to the same extent as such provider would give effect to a valid advance directive executed under the law of the State in which it is presented. In the absence of knowledge to the contrary, such a provider may presume that such an advance directive executed outside the State in which it is presented is valid. Nothing in this paragraph shall be construed to authorize the administration of health care 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 with respect to health care.

(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:

;

(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 shall give effect to a valid advance directive executed outside the State in which such directive is presented to the same extent as such provider would give effect to a valid advance directive executed under the law of the State in which it is presented. In the absence of knowledge to the contrary, such a provider may presume that such an advance directive executed outside the State in which it is presented is valid. Nothing in this paragraph shall be construed to authorize the administration of health care 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 with respect to health care.

(c)

Effective dates

(1)

In general

Subject to paragraph (2), the amendments made by subsections (a) and (b) shall apply to provider agreements 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.

Medicare coverage of an end-of-life planning consultation as part of an initial preventive physical examination

(a)

In general

Section 1861(ww) of the Social Security Act (42 U.S.C. 1395x(ww)) is amended— (1)in paragraph (1), by striking paragraph (2), and inserting paragraph (2) and an end-of-life planning consultation (as defined in paragraph (3)),; and (2)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 why the development of a comprehensive end-of-life plan is beneficial and the reasons why 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 (also known as a health care proxy); and (E)whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive.

(b)

Effective date

The amendments made by this section shall apply to initial preventive physical examinations furnished on or after January 1, 2009.

National information hotline for end-of-life decisionmaking and hospice care

The Secretary of Health and Human Services, acting through the Administrator of the Centers for Medicare & Medicaid Services, shall operate directly, or by grant, contract, or interagency agreement, out of funds otherwise appropriated to the Secretary, a clearinghouse and a 24-hour toll-free telephone hotline in order to provide consumer information about advance directives (as defined in section 1866(f)(3) of the Social Security Act (42 U.S.C. 1395cc(f)(3)), as amended by section 2(a)), end-of-life decisionmaking, and available end-of-life and hospice care services. In carrying out the preceding sentence, the Administrator may designate an existing clearinghouse and 24-hour toll-free telephone hotline or, if no such entity is appropriate, may establish a new clearinghouse and a 24-hour toll-free telephone hotline.

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:

Programs to increase awareness of advance directive planning issues

399FF.

Advance directive education campaigns

(a)

Advance directive education campaign

The Secretary shall, directly or through grants awarded under subsection (b), 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)

Grants

(1)

In general

The Secretary shall use at least 60 percent of the funds appropriated under subsection (c) 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). (2)

Period

Any grant awarded under paragraph (1) shall be for a period of 3 years. (c)

Authorization of appropriations

There are authorized to be appropriated to carry out this section $25,000,000.