[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 465 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                 S. 465

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

                            January 31, 2007

  Mr. Nelson of Florida (for himself, Mr. Lugar, Mr. Rockefeller, Ms. 
 Collins, Mr. Durbin, and Mr. Bingaman) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 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.

    This Act may be cited as the ``Advance Directives Improvement and 
Education Act of 2007''.

SEC. 2. ADVANCE DIRECTIVES.

    (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 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.
            (3) A survey published in 2005 estimated that the overall 
        prevalence of advance directives is 29 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.
            (4) 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 section 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.
    (c) Medicare Coverage of End-of-Life Planning and Consultations as 
Part of Initial Preventive Physical Examination.--
            (1) In general.--Section 1861(ww) of the Social Security 
        Act (42 U.S.C. 1395x(ww)) is amended--
                    (A) in paragraph (1), by striking ``paragraph 
                (2),'' and inserting ``paragraph (2) and an end-of-life 
                planning consultation (as defined in paragraph (3)),''; 
                and
                    (B) 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 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.''.
            (2) Effective date.--The amendments made by paragraph (1) 
        shall apply to initial preventive physical examinations 
        provided on or after January 1, 2008.
    (d) Improvement of Policies Related to the Use and Portability of 
Advance Directives.--
            (1) Medicare.--Section 1866(f) of the Social Security Act 
        (42 U.S.C. 1395cc(f)) is amended--
                    (A) in paragraph (1)--
                            (i) 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;
                            (ii) in subparagraph (D), by striking 
                        ``and'' after the semicolon at the end;
                            (iii) in subparagraph (E), by striking the 
                        period at the end and inserting ``; and''; and
                            (iv) 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.'';
                    (B) in paragraph (3), by striking ``a written'' and 
                inserting ``an''; and
                    (C) 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.''.
            (2) Medicaid.--Section 1902(w) of the Social Security Act 
        (42 U.S.C. 1396a(w)) is amended--
                    (A) in paragraph (1)--
                            (i) 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;
                            (ii) in subparagraph (D), by striking 
                        ``and'' after the semicolon at the end;
                            (iii) in subparagraph (E), by striking the 
                        period at the end and inserting ``; and''; and
                            (iv) 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.'';
                    (B) in paragraph (4), by striking ``a written'' and 
                inserting ``an''; and
                    (C) 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.''.
            (3) Effective dates.--
                    (A) In general.--Subject to subparagraph (B), the 
                amendments made by paragraphs (1) and (2) 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.
                    (B) 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 paragraph (2), 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.
    (e) 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.

    ``(a) Advance Directive Education Campaign.--The 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 Clearinghouse.--The 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) Grants.--
            ``(1) In general.--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) Period.--Any grant awarded under paragraph (1) shall 
        be for a period of 3 years.
    ``(d) Authorization of Appropriations.--There are authorized to be 
appropriated to carry out this section $25,000,000.''.
    (f) GAO Study and Report on Establishment of National Advance 
Directive Registry.--
            (1) 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 of 1996 (Public Law 104-191).
            (2) 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 paragraph (1) together with recommendations for such 
        legislation and administrative action as the Comptroller 
        General of the United States determines to be appropriate.
    (g) Effective Date.--Except as provided in subsections (c) and (d), 
this section and the amendments made by this section shall take effect 
on the date of enactment of this Act.
                                 <all>