1.Short title; table of contents
(a)This Act may be cited as the
Advance Planning and Compassionate
Care Act of 2007
.
(b)The table of contents of this Act is as
follows:
Sec. 1. Short title; table of
contents.
Sec. 2. Development of
standards to assess end-of-life care.
Sec. 3. Study and report by the
Secretary of Health and Human Services regarding the establishment and
implementation of a national uniform policy on advance directives.
Sec. 4. Improvement of policies
related to the use of advance directives.
Sec. 5. National information
hotline for end-of-life decisionmaking and hospice care.
Sec. 6. Demonstration project
for innovative and new approaches to end-of-life care for Medicare, Medicaid,
and SCHIP beneficiaries.
Sec. 7. Establishment of
End-of-Life Care Advisory Board.
2.Development of standards to assess
end-of-life care
(a)The Secretary of Health and Human Services,
in consultation with the Administrator of the Centers for Medicare &
Medicaid Services, the Director of the National Institutes of Health, the
Administrator of the Agency for Health Care Policy and Research, and the
End-of-Life Care Advisory Board (established under section 7), shall develop
outcome standards and measures to—
(1)evaluate the performance of health care
programs and projects that provide end-of-life care to individuals, including
the quality of the care provided by such programs and projects; and
(2)assess the access to, and utilization of,
such programs and projects, including differences in such access and
utilization in rural and urban areas and for minority populations.
(b)Not later than 2 years after the date of
enactment of this Act, the Secretary of Health and Human Services shall submit
to Congress a report on the outcome standards and measures developed under
subsection (a), together with recommendations for such legislation and
administrative actions as the Secretary considers appropriate.
3.Study and report by the secretary of health
and human services regarding the establishment and implementation of a national
uniform policy on advance directives
(a)
(1)The Secretary of Health and Human Services
shall conduct a thorough study of all matters relating to the establishment and
implementation of a national uniform policy on advance directives for
individuals receiving items and services under titles XVIII and XIX of the
Social Security Act (42 U.S.C. 1395 et
seq.; 1396 et seq.).
(2)The matters studied by the Secretary of
Health and Human Services under paragraph (1) shall include issues
concerning—
(A)family satisfaction that a patient’s
wishes, as stated in the patient’s advance directive, were carried out;
(B)the portability of advance directives,
including cases involving the transfer of an individual from 1 health care
setting to another;
(C)immunity from civil liability and criminal
responsibility for health care providers that follow the instructions in an
individual’s advance directive that was validly executed in, and consistent
with the laws of, the State in which it was executed;
(D)conditions under which an advance directive
is operative;
(E)revocation of an advance directive by an
individual;
(F)the criteria used by States for determining
that an individual has a terminal condition;
(G)surrogate decisionmaking regarding
end-of-life care;
(H)the provision of adequate palliative care
(as defined in paragraph (3)), including pain management; and
(I)adequate and timely referrals to hospice
care programs.
(3)For purposes of paragraph (2)(H), the term
palliative care means interdisciplinary care for individuals with
a life-threatening illness or injury relating to pain and symptom management
and psychological, social, and spiritual needs and that seeks to improve the
quality of life for the individual and the individual’s family.
(b)Not later than 18 months after the date of
enactment of this Act, the Secretary of Health and Human Services shall submit
to Congress a report on the study conducted under subsection (a), together with
recommendations for such legislation and administrative actions as the
Secretary considers appropriate.
(c)In conducting the study and developing the
report under this section, the Secretary of Health and Human Services shall
consult with the End-of-Life Care Advisory Board (established under section 7),
the Uniform Law Commissioners, and other interested parties.
4.Improvement of policies related to the use
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, 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)An advance directive validly executed
outside of the State in which such advance directive is presented by an adult
individual to a provider of services, a Medicare Advantage organization, or a
prepaid or eligible organization shall be given the same effect by that
provider or organization as an advance directive validly executed under the law
of the State in which it is presented would be given effect.
(B)(i)The definition of an advanced directive
shall also include actual knowledge of instructions made while an individual
was able to express the wishes of such individual with regard to health
care.
(ii)For purposes of clause (i), the term
actual knowledge means the possession of information of an
individual’s wishes communicated to the health care provider orally or in
writing by the individual, the individual’s medical power of attorney
representative, the individual’s health care surrogate, or other individuals
resulting in the health care provider’s personal cognizance of these wishes.
Other forms of imputed knowledge are not actual knowledge.
(C)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, 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)An advance directive validly executed
outside of the State in which such advance directive is presented by an adult
individual to a provider or organization shall be given the same effect by that
provider or organization as an advance directive validly executed under the law
of the State in which it is presented would be given effect.
(B)(i)The definition of an advanced directive
shall also include actual knowledge of instructions made while an individual
was able to express the wishes of such individual with regard to health
care.
(ii)For purposes of clause (i), the term
actual knowledge means the possession of information of an
individual’s wishes communicated to the health care provider orally or in
writing by the individual, the individual’s medical power of attorney
representative, the individual’s health care surrogate, or other individuals
resulting in the health care provider’s personal cognizance of these wishes.
Other forms of imputed knowledge are not actual knowledge.
(C)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)Study and report regarding
implementation
(1)The Secretary of Health and Human Services
shall conduct a study regarding the implementation of the amendments made by
subsections (a) and (b).
(2)Not later than 18 months after the date of
enactment of this Act, the Secretary of Health and Human Services shall submit
to Congress a report on the study conducted under paragraph (1), together with
recommendations for such legislation and administrative actions as the
Secretary considers appropriate.
(d)
(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.National information hotline for
end-of-life decisionmaking and hospice careThe 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 4(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.
6.Demonstration project for innovative and
new approaches to end-of-life care for medicare, medicaid, and SCHIP
beneficiaries
(a)
(1)The Secretary, acting through the
Administrator of the Centers for Medicare & Medicaid Services, shall
conduct a demonstration project under which the Secretary contracts with
entities operating programs in order to develop new and innovative approaches
to providing end-of-life care to Medicare beneficiaries, Medicaid
beneficiaries, and SCHIP beneficiaries.
(2)Any entity seeking to participate in the
demonstration project shall submit to the Secretary an application in such form
and manner as the Secretary may require.
(3)The authority of the Secretary to conduct
the demonstration project shall terminate at the end of the 5-year period
beginning on the date the Secretary implements the demonstration
project.
(b)
(1)Subject to paragraphs (2) and (3), in
selecting entities to participate in the demonstration project, the Secretary
shall select entities that will allow for programs to be conducted in a variety
of States, in an array of care settings, and that reflect—
(A)a balance between urban and rural
settings;
(B)cultural diversity; and
(C)various modes of medical care and
insurance, such as fee-for-service, preferred provider organizations, health
maintenance organizations, hospice care, home care services, long-term care,
pediatric care, and integrated delivery systems.
(2)The Secretary shall give preference to
entities operating programs that—
(A)will serve Medicare beneficiaries, Medicaid
beneficiaries, or SCHIP beneficiaries who are dying of illnesses that are most
prevalent under the Medicare program, the Medicaid program, or SCHIP,
respectively; and
(B)appear capable of sustained service and
broad replication at a reasonable cost within commonly available organizational
structures.
(3)Selection of program that provides
pediatric end-of-life careThe Secretary shall ensure that at least 1
of the entities selected to participate in the demonstration project operates a
program that provides pediatric end-of-life care.
(c)
(1)Each program operated by an entity under
the demonstration project shall be evaluated at such regular intervals as the
Secretary determines are appropriate.
(2)Use of private entities to conduct
evaluationsThe Secretary, in
consultation with the End-of-Life Care Advisory Board (established under
section 7), shall contract with 1 or more private entities to coordinate and
conduct the evaluations under paragraph (1). Such a contract may not be awarded
to an entity selected to participate in the demonstration project.
(3)Requirements for evaluations
(A)Use of outcome measures and
standardsIn coordinating and
conducting an evaluation of a program conducted under the demonstration
project, an entity shall use the outcome standards and measures required to be
developed under section 2 as soon as those standards and measures are
available.
(B)In addition to the use of the outcome
standards and measures under subparagraph (A), an evaluation of a program
conducted under the demonstration project shall include the following:
(i)A comparison of the quality of care
provided by, and of the outcomes for Medicare beneficiaries, Medicaid
beneficiaries, and SCHIP beneficiaries, and the families of such beneficiaries
enrolled in, the program being evaluated to the quality of care and outcomes
for such individuals that would have resulted if care had been provided under
existing delivery systems.
(ii)An analysis of how ongoing measures of
quality and accountability for improvement and excellence could be incorporated
into the program being evaluated.
(iii)A comparison of the costs of the care
provided to Medicare beneficiaries, Medicaid beneficiaries, and SCHIP
beneficiaries under the program being evaluated to the costs of such care that
would have been incurred under the Medicare program, the Medicaid program, and
SCHIP if such program had not been conducted.
(iv)An analysis of whether the program being
evaluated implements practices or procedures that result in improved patient
outcomes, resource utilization, or both.
(v)An analysis of—
(I)the population served by the program being
evaluated; and
(II)how accurately that population reflects the
total number of Medicare beneficiaries, Medicaid beneficiaries, and SCHIP
beneficiaries residing in the area who are in need of services offered by such
program.
(vi)An analysis of the eligibility requirements
and enrollment procedures for the program being evaluated.
(vii)An analysis of the services provided to
beneficiaries enrolled in the program being evaluated and the utilization rates
for such services.
(viii)An analysis of the structure for the
provision of specific services under the program being evaluated.
(ix)An analysis of the costs of providing
specific services under the program being evaluated.
(x)An analysis of any procedures for offering
Medicare beneficiaries, Medicaid beneficiaries, and SCHIP beneficiaries
enrolled in the program being evaluated a choice of services and how the
program responds to the preferences of such beneficiaries.
(xi)An analysis of the quality of care provided
to, and of the outcomes for, Medicare beneficiaries, Medicaid beneficiaries,
and SCHIP beneficiaries, and the families of such beneficiaries, that are
enrolled in the program being evaluated.
(xii)An analysis of any ethical, cultural, or
legal concerns—
(I)regarding the program being evaluated;
and
(II)with the replication of such program in
other settings.
(xiii)An analysis of any changes to regulations
or of any additional funding that would result in more efficient procedures or
improved outcomes under the program being evaluated.
(d)The Secretary may waive compliance with any
of the requirements of titles XI, XVIII, XIX, and XXI of the
Social Security Act (42 U.S.C. 1301 et
seq.; 1395 et seq.; 1396 et seq.; 1397aa et seq.) which, if applied, would
prevent the demonstration project carried out under this section from
effectively achieving the purpose of such project.
(e)
(1)Annual reports by secretary
(A)Beginning 1 year after the date of
enactment of this Act, and annually thereafter, the Secretary shall submit to
Congress a report on the demonstration project and on the quality of
end-of-life care under the Medicare program, the Medicaid program, and SCHIP,
together with recommendations for such legislation and administrative actions
as the Secretary considers appropriate.
(B)Summary of recent studiesA report submitted under subparagraph (A)
shall include a summary of any recent studies and advice from experts in the
health care field regarding the ethical, cultural, and legal issues that may
arise when attempting to improve the health care system to meet the needs of
individuals with serious and eventually terminal conditions.
(C)Continuation or replication of
demonstration projectsThe
first report submitted under subparagraph (A) after the 3-year anniversary of
the date the Secretary implements the demonstration project shall include
recommendations regarding whether such demonstration project should be
continued beyond the period described in subsection (a)(3) and whether broad
replication of any of the programs conducted under the demonstration project
should be initiated.
(2)Report by end-of-life care advisory board
on demonstration project
(A)Not later than 2 years after the conclusion
of the demonstration project, the End-of-Life Advisory Board shall submit a
report to the Secretary and Congress on such project.
(B)The report submitted under subparagraph (A)
shall contain—
(i)an evaluation of the effectiveness of the
demonstration project; and
(ii)recommendations for such legislation and
administrative actions as the Board considers appropriate.
(f)There are appropriated such sums as are
necessary for conducting the demonstration project and for preparing and
submitting the reports required under subsection (e)(1).
(g)In this section:
(1)The term demonstration project
means the demonstration project conducted under this section.
(2)The term Medicaid
beneficiaries means individuals who are enrolled in the State Medicaid
program.
(3)The term Medicaid program
means the health care program under title XIX of the
Social Security Act (42 U.S.C. 1395 et
seq.).
(4)The term Medicare
beneficiaries means individuals who are entitled to, or enrolled for,
benefits under part A or enrolled for benefits under part B of the Medicare
program.
(5)The term Medicare program
means the health care program under title XVIII of the
Social Security Act (42 U.S.C. 1395 et
seq.).
(6)The term SCHIP means the State
children's health insurance program under title XXI of the Social Security Act
(42 U.S.C. 1397aa et seq.).
(7)The term SCHIP beneficiary
means an individual who is enrolled in SCHIP.
(8)The term Secretary means the
Secretary of Health and Human Services.
7.Establishment of end-of-life care advisory
board
(a)There is established within the Department
of Health and Human Services an End-of-Life Care Advisory Board (in this
section referred to as the Board
).
(b)
(1)The Board shall be composed of 15 members
who shall be appointed by the Secretary of Health and Human Services (in this
section referred to as the Secretary
).
(2)The Secretary shall ensure that the
following groups, organizations, and associations are represented in the
membership of the Board:
(A)An end-of-life consumer advocacy
organization.
(B)A senior citizen advocacy
organization.
(C)A physician-based hospice or palliative
care organization.
(D)A nurse-based hospice or palliative care
organization.
(E)A hospice or palliative care provider
organization.
(F)A hospice or palliative care representative
that serves the veterans population.
(G)A physician-based medical
association.
(H)A physician-based pediatric medical
association.
(I)A home health-based nurses
association.
(J)A hospital-based or health system-based
palliative care group.
(K)A children-based or family-based hospice
resource group.
(L)A cancer pain management resource
group.
(M)A cancer research and policy advocacy
group.
(N)An end-of-life care policy advocacy
group.
(O)An interdisciplinary end-of-life care
academic institution.
(3)Ethnic diversity requirementThe Secretary shall ensure that the members
of the Board appointed under paragraph (1) represent the ethnic diversity of
the United States.
(4)No individual who is a Federal officer or
employee may serve as a member of the Board.
(5)Each member of the Board shall serve for a
term determined appropriate by the Secretary.
(6)The Secretary shall designate a member of
the Board as chairperson.
(c)The Board shall meet at the call of the
chairperson but not less often than every 3 months.
(d)
(1)The Board shall advise the Secretary on all
matters related to the furnishing of end-of-life care to individuals.
(2)The specific duties of the Board are as
follows:
(A)The Board shall consult with the Secretary
regarding—
(i)the development of the outcome standards
and measures under section 2;
(ii)conducting the study and submitting the
report under section 3; and
(iii)the selection of private entities to
conduct evaluations pursuant to section 6(c)(2).
(B)Report on demonstration
projectThe Board shall
submit the report required under section 6(e)(2).
(e)Members To serve without
compensation
(1)All members of the Board shall serve on the
Board without compensation for such service.
(2)The members of the Board shall be allowed
travel expenses, including per diem in lieu of subsistence, at rates authorized
for employees of agencies under subchapter I of chapter 57 of title 5, United
States Code, while away from their homes or regular places of business in the
performance of services for the Board.
(f)
(1)The chairperson of the Board may, without
regard to the civil service laws and regulations, appoint and terminate an
executive director and such other additional personnel as may be necessary to
enable the Board to perform its duties. The employment of an executive director
shall be subject to confirmation by the Board.
(2)The chairperson of the Board may fix the
compensation of the executive director and other personnel without regard to
chapter 51 and subchapter III of chapter 53 of title 5, United States Code,
relating to classification of positions and General Schedule pay rates, except
that the rate of pay for the executive director and other personnel may not
exceed the rate payable for level V of the Executive Schedule under section
5316 of such title.
(3)Personnel as federal employees
(A)The executive director and any personnel of
the Board who are employees shall be employees under section 2105 of title 5,
United States Code, for purposes of chapters 63, 81, 83, 84, 85, 87, 89, and 90
of that title.
(B)Subparagraph (A) shall not be construed to
apply to members of the Board.
(g)Detail of government
employeesAny Federal
Government employee may be detailed to the Board without additional
reimbursement (other than the employee’s regular compensation), and such detail
shall be without interruption or loss of civil service status or
privilege.
(h)Procurement of temporary and intermittent
servicesThe chairperson of
the Board may procure temporary and intermittent services under section 3109(b)
of title 5, United States Code, at rates for individuals which do not exceed
the daily equivalent of the annual rate of basic pay prescribed for level V of
the Executive Schedule under section 5316 of such title.
(i)Federal
advisory committee actSection 14 of the
Federal Advisory Committee Act (5
U.S.C. App.) shall not apply to the Board.
(j)The Board shall terminate 90 days after the
date on which the Board submits the report under section 6(e)(2).
(k)Funding for the operation of the Board
shall be from amounts otherwise appropriated to the Department of Health and
Human Services.