[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5795 Introduced in House (IH)]

111th CONGRESS
  2d Session
                                H. R. 5795

 To amend the Social Security Act to provide for coverage of voluntary 
advance care planning consultation under Medicare and Medicaid, and for 
                            other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 20, 2010

  Mr. Blumenauer (for himself, Ms. Baldwin, Mrs. Capps, Mr. Holt, Mr. 
 Kind, Ms. Linda T. Sanchez of California, Ms. Schakowsky, and Mr. Wu) 
 introduced the following bill; which was referred to the Committee on 
   Energy and Commerce, and in addition to the Committee on Ways and 
 Means, for a period to be subsequently determined by the Speaker, in 
   each case for consideration of such provisions as fall within the 
                jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
 To amend the Social Security Act to provide for coverage of voluntary 
advance care planning consultation under Medicare and Medicaid, 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; FINDINGS; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Personalize Your 
Care Act of 2010''.
    (b) Findings.--Congress finds the following:
            (1) All individuals should be afforded the opportunity to 
        fully participate in decisions related to their health care or 
        the care of a person for whom they are the proxy or surrogate.
            (2) Every individual's values and goals should be 
        identified, understood, and respected. Particular attention 
        should be paid to populations which have not regularly had the 
        opportunity to express their choices or preferences.
            (3) Advance care planning plays a valuable role in 
        achieving quality care by informing physicians and family 
        members of an individual's treatment preferences should he or 
        she become unable to direct care.
            (4) Early advance care planning is ideal because a person's 
        ability to make decisions may diminish over time and the person 
        may suddenly lose the capability to participate in their health 
        care decisions.
            (5) Advance directives (such as living wills and durable 
        powers of attorney for health care) must be prepared while 
        individuals have the capacity to complete them and only apply 
        to future medical circumstances when decisionmaking capacity is 
        lost. An individual can change or revoke an advance directive 
        at any time.
            (6) Physician orders for life-sustaining treatment 
        complement advance directives by providing a process to focus 
        patients' values, goals, and preferences on current medical 
        circumstances and to translate them into visible and portable 
        medical orders applicable across care settings. A patient (or 
        proxy or surrogate) can change or revoke a physician order for 
        life-sustaining treatment at any time.
            (7) Advance care planning should be routinely conducted in 
        community and clinical practices. Care plans should be 
        periodically revisited to reflect a person's changes in values 
        and perceptions at different stages and circumstances of life. 
        This shared decisionmaking and collaborative planning between 
        the patient (or proxy or surrogate) and the clinician of their 
        choice will lead to more person-centered, culturally 
        appropriate care.
            (8) Effective, respectful, and culturally competent advance 
        care planning requires recognition that both overtreatment and 
        undertreatment may be concerns of individuals contemplating 
        future care.
            (9) More should be done within local health systems to 
        establish specific policies and programs to assist people with 
        sensory, mental, and other disabilities in order to maximize 
        the degree to which they are active participants in the 
        decisions related to their health care, including training 
        health care providers to be aware of augmentative communication 
        devices and how to communicate with people with developmental, 
        psychiatric, speech, and sensory disabilities.
            (10) Studies funded by the Agency for Healthcare Research 
        and Quality have shown that individuals who talked with their 
        families or physicians about their preferences for care had 
        less fear and anxiety, felt they had more ability to influence 
        and direct their medical care, believed that their physicians 
        had a better understanding of their wishes, and indicated a 
        greater understanding and comfort level than they had before 
        the discussion. Patients who had advance planning discussions 
        with their physicians continued to discuss and talk about these 
        concerns with their families. Such discussions enabled patients 
        and families to reconcile any differences about care and could 
        help the family and physician come to agreement if they should 
        need to make decisions for the patient.
            (11) A decade of research has demonstrated that physician 
        orders for life-sustaining treatment effectively convey patient 
        preferences and guide medical personnel toward medical 
        treatment aligned with patient wishes. Programs for these 
        orders have developed locally on a statewide or communitywide 
        basis and have different program names, forms, and policies, 
        but all follow the principle of patient-centered care.
            (12) According to research published in the Archives of 
        Internal Medicine, between 65 and 76 percent of physicians 
        whose patients had an advance directive were not aware that it 
        existed.
            (13) Including completed advance care planning documents 
        within a patient's electronic health record can increase the 
        likelihood these documents are kept up-to-date and available at 
        the right place at the right time.
    (c) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; findings; table of contents.
Sec. 2. Voluntary advance care planning consultation coverage under 
                            Medicare and Medicaid.
Sec. 3. Grants for programs for physician orders for life-sustaining 
                            treatment.
Sec. 4. Advance care planning standards for electronic health records.
Sec. 5. Portability of advance directives.

SEC. 2. VOLUNTARY ADVANCE CARE PLANNING CONSULTATION COVERAGE UNDER 
              MEDICARE AND MEDICAID.

    (a) Medicare.--
            (1) In general.--Section 1861 of the Social Security Act 
        (42 U.S.C. 1395x), as amended by section 4103 of the Patient 
        Protection and Affordable Care Act (Public Law 111-148, in this 
        section referred to as ``PPACA''), is amended--
                    (A) in subsection (s)(2)--
                            (i) by striking ``and'' at the end of 
                        subparagraph (EE);
                            (ii) by adding ``and'' at the end of 
                        subparagraph (FF); and
                            (iii) by adding at the end the following 
                        new subparagraph:
                    ``(GG) voluntary advance care planning consultation 
                (as defined in subsection (iii)(1));''; and
                    (B) by adding at the end the following new 
                subsection:

             ``Voluntary Advance Care Planning Consultation

    ``(iii)(1) Subject to paragraphs (3) and (4), the term `voluntary 
advance care planning consultation' means an optional consultation 
between the individual and a practitioner described in paragraph (2) 
regarding advance care planning. Such consultation may include the 
following, as specified by the Secretary:
            ``(A) An explanation by the practitioner of advance care 
        planning and the uses of advance directives.
            ``(B) An explanation by the practitioner of the role and 
        responsibilities of a proxy or surrogate.
            ``(C) An explanation by the practitioner of the services 
        and supports available under this title during chronic and 
        serious illness, including palliative care, home care, long-
        term care, and hospice care.
            ``(D) An explanation by the practitioner of physician 
        orders for life-sustaining treatment or similar orders in 
        States where such orders or similar orders exist.
            ``(E) Facilitation by the practitioner of shared 
        decisionmaking with the patient (or proxy or surrogate) which 
        may include--
                    ``(i) use of decision aids and patient support 
                tools;
                    ``(ii) the provision of patient-centered, easy-to-
                understand information about advance care planning or 
                disease-specific care planning; and
                    ``(iii) the incorporation of patient preferences 
                and values into the medical plan, an advance directive, 
                and a physician order for life-sustaining treatment as 
                appropriate.
    ``(2) A practitioner described in this paragraph is a physician (as 
defined in subsection (r)(1)), nurse practitioner, or physician 
assistant.
    ``(3) Payment may not be made under this title for a voluntary 
advance care planning consultation furnished more often than once every 
5 years unless there is a significant change in the health, health-
related condition, or care setting of the individual.
    ``(4) For purposes of this section, the term `physician order for 
life-sustaining treatment' means, with respect to an individual, an 
actionable medical order relating to the treatment of that individual 
that effectively communicates the individual's preferences regarding 
life-sustaining treatment, is in a form that is sanctioned or approved 
under State law or regulation or is widely recognized by health care 
providers in the State, and permits it to be followed by health care 
professionals across the continuum of care. Such an order may be 
changed or revoked by the individual (or proxy or surrogate) at any 
time.''.
            (2) Construction.--The voluntary advance care planning 
        consultation described in section 1861(iii) of the Social 
        Security Act, as added by paragraph (1), shall be completely 
        optional. Nothing in this section shall--
                    (A) require an individual to complete an advance 
                directive or a physician order for life-sustaining 
                treatment;
                    (B) require an individual to consent to 
                restrictions on the amount, duration, or scope of 
                medical benefits an individual is entitled to receive 
                under this title; or
                    (C) violate the Assisted Suicide Funding 
                Restriction Act of 1997 (Public Law 105-12) by 
                encouraging the promotion of suicide or assisted 
                suicide.
            (3) Payment.--Section 1848(j)(3) of such Act (42 U.S.C. 
        1395w-4(j)(3)), as amended by section 4103(c)(2) of PPACA, is 
        amended by inserting ``(2)(GG),'' after ``(2)(FF),''.
            (4) Frequency limitation.--Section 1862(a) of such Act (42 
        U.S.C. 1395y(a)), as amended by section 4103(d) of PPACA, is 
        amended--
                    (A) in paragraph (1)--
                            (i) in subparagraph (O), by striking 
                        ``and'' at the end;
                            (ii) in subparagraph (P) by striking the 
                        semicolon at the end and inserting ``, and''; 
                        and
                            (iii) by adding at the end the following 
                        new subparagraph:
                    ``(Q) in the case of voluntary advance care 
                planning consultations (as defined in paragraph (1) of 
                section 1861(iii)), which are performed more frequently 
                than is covered under such section;''; and
                    (B) in paragraph (7), by striking ``or (P)'' and 
                inserting ``(P), or (Q)''.
            (5) Effective date.--The amendments made by this subsection 
        shall apply to consultations furnished on or after January 1, 
        2011.
    (b) Medicaid.--
            (1) Mandatory benefit.--Section 1902(a)(10)(A) of the 
        Social Security Act (42 U.S.C. 1396a(a)(10)(A)), as amended by 
        section 2301(b) of PPACA, is amended, in the matter preceding 
        clause (i), by striking ``and (28)'' and inserting ``, (28), 
        and (29)''.
            (2) Medical assistance.--Section 1905(a) of such Act (42 
        U.S.C. 1396d(a)), as amended by section 2301(a) of PPACA, is 
        amended--
                    (A) by striking ``and'' at the end of paragraph 
                (28);
                    (B) by redesignating paragraph (29) as paragraph 
                (30); and
                    (C) by inserting after paragraph (28) the following 
                new paragraph:
            ``(29) voluntary advance care planning consultation (as 
        defined in section 1861(iii)(1)); and''.
    (c) Definition of Advance Directive Under Medicare and Medicaid.--
            (1) Medicare.--Section 1866(f)(3) of the Social Security 
        Act (42 U.S.C. 1395cc(f)(3)) is amended by striking ``means'' 
        and all that follows and inserting the following: ``means a 
        living will, medical directive, health care power of attorney, 
        durable power of attorney for health care, advance health care 
        directive, health care directive, or other statement that is 
        recorded and completed in a manner recognized under State law 
        by an individual with capacity to make health care decisions 
        and that indicates the individual's wishes regarding medical 
        treatment in the event of future incapacity of the individual 
        to make health care decisions.''.
            (2) Medicaid.--Section 1902(w)(4) of such Act (42 U.S.C. 
        1396a(w)(4)) is amended by striking ``means'' and all that 
        follows and inserting the following: ``means a living will, 
        medical directive, health care power of attorney, durable power 
        of attorney for health care, advance health care directive, 
        health care directive, or other statement that is recorded and 
        completed in a manner recognized under State law by an 
        individual with capacity to make health care decisions and that 
        indicates the individual's wishes regarding medical treatment 
        in the event of future incapacity of the individual to make 
        health care decisions.''.
    (d) Effective Date.--The amendments made by this section take 
effect on January 1, 2011.

SEC. 3. GRANTS FOR PROGRAMS FOR PHYSICIAN ORDERS FOR LIFE-SUSTAINING 
              TREATMENT.

    (a) In General.--The Secretary of Health and Human Services shall 
make grants to eligible entities for the purpose of--
            (1) establishing statewide programs for physician orders 
        for life-sustaining treatment; or
            (2) expanding or enhancing existing programs for physician 
        orders for life-sustaining treatment.
    (b) Authorized Activities.--Activities funded through a grant under 
this section for an area may include--
            (1) developing such a program for the area that includes 
        hospitals, home care, hospice, long-term care, community and 
        assisted living residences, skilled nursing facilities, and 
        emergency medical services within a State; and
            (2) expanding an existing program for physician orders 
        regarding life-sustaining treatment to serve more patients or 
        enhance the quality of services, including educational services 
        for patients and patients' families, training of health care 
        professionals, or establishing a physician orders for life-
        sustaining treatment registry.
    (c) Distribution of Funds.--In funding grants under this section, 
the Secretary shall ensure that, of the funds appropriated to carry out 
this section for each fiscal year--
            (1) at least one-half are used for establishing new 
        programs for physician orders regarding life-sustaining 
        treatment; and
            (2) remaining funds are to be used for expanding or 
        enhancing existing programs for physician orders regarding 
        life-sustaining treatment.
    (d) Definitions.--In this section:
            (1) The term ``eligible entity'' includes--
                    (A) an academic medical center, a medical school, a 
                State health department, a State medical association, a 
                multistate task force, a hospital, or a health system 
                capable of administering a program for physician orders 
                regarding life-sustaining treatment for a State; or
                    (B) any other health care agency or entity as the 
                Secretary determines appropriate.
            (2) The term ``physician order for life-sustaining 
        treatment'' has the meaning given such term in section 
        1861(iii)(4) of the Social Security Act, as added by section 2.
            (3) The term ``program for physician orders for life-
        sustaining treatment'' means a program that--
                    (A) supports the active use of physician orders for 
                life-sustaining treatment in the State; and
                    (B) is guided by a coalition of stakeholders that 
                includes patient advocacy groups and representatives 
                from across the continuum of health care services, such 
                as disability rights advocates, senior advocates, 
                emergency medical services, long-term care, medical 
                associations, hospitals, home health, hospice, the 
                State agency responsible for senior and disability 
                services, and the State department of health.
            (4) The term ``Secretary'' means the Secretary of Health 
        and Human Services.
    (e) Authorization of Appropriations.--To carry out this section, 
there are authorized to be appropriated such sums as may be necessary 
for each of the fiscal years 2011 through 2016.

SEC. 4. ADVANCE CARE PLANNING STANDARDS FOR ELECTRONIC HEALTH RECORDS.

    Notwithstanding section 3004(b)(3) of the Public Health Service Act 
(42 U.S.C. 300jj-14(b)(3)), not later than January 1, 2012, the 
Secretary of Health and Human Services shall adopt, by rule, standards 
for a qualified electronic health record (as defined in section 
3000(13) of such Act (42 U.S.C. 300jj(13)), with respect to patient 
communications with a health care provider about values and goals of 
care, to adequately display the following:
            (1) The patient's current advance directive (as defined in 
        section 1866(f)(3) of the Social Security Act (42 U.S.C. 
        1395cc(f)(3)), as applicable.
            (2) The patient's current physician order for life-
        sustaining treatment (as defined in section 1861(iii)(4) of the 
        Social Security Act (42 U.S.C. 1395x(iii)(4)), as applicable.
A standard adopted under this section shall be treated as a standard 
adopted under section 3004 of the Public Health Service Act (42 U.S.C. 
300jj-14) for purposes of certifying qualified electronic health 
records pursuant to section 3001(c)(5) of such Act (42 U.S.C. 300jj-
11(c)(5)).

SEC. 5. PORTABILITY OF ADVANCE DIRECTIVES.

    (a) In General.--Section 1866(f) of the Social Security Act (42 
U.S.C. 1395cc(f)) is amended by adding at the end the following new 
paragraph:
    ``(5)(A) An advance directive validly executed outside the State in 
which such directive is presented must be given effect by a provider of 
services or organization to the same extent as an advance directive 
validly executed under the law of the State in which it is presented.
    ``(B) In the absence of knowledge to the contrary, a physician or 
other health care provider or organization may presume that a written 
advance health care directive or similar instrument, regardless of 
where executed, is valid.
    ``(C) In the absence of a validly executed advance directive, any 
authentic expression of a person's wishes with respect to health care 
shall be honored.
    ``(D) The provisions of this paragraph shall preempt any State law 
on advance directive portability to the extent such law is inconsistent 
with such provisions. Nothing in the 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) Medicaid.--Section 1902(w) of the Social Security Act (42 
U.S.C. 1396a(w)) is amended by adding at the end the following new 
paragraph:
    ``(6)(A) An advance directive validly executed outside the State in 
which such directive is presented must be given effect by a provider or 
organization to the same extent as an advance directive validly 
executed under the law of the State in which it is presented.
    ``(B) In the absence of knowledge to the contrary, a physician, 
other health care provider, or organization may presume that a written 
advance health care directive or similar instrument, regardless of 
where executed, is valid.
    ``(C) In the absence of a validly executed advance directive, any 
authentic expression of a person's wishes with respect to health care 
shall be honored.
    ``(D) The provisions of this paragraph shall preempt any State law 
on advance directive portability to the extent such law is inconsistent 
with such provisions. Nothing in the 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.''.
                                 <all>