[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2240 Introduced in Senate (IS)]

113th CONGRESS
  2d Session
                                S. 2240

 To amend title XVIII of the Social Security Act to encourage Medicare 
   beneficiaries to voluntarily adopt advance directives guiding the 
                       medical care they receive.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 10, 2014

Mr. Coons (for Mr. Coburn (for himself, Mr. Coons, and Mr. Blumenthal)) 
introduced the following bill; which was read twice and referred to the 
                          Committee on Finance

_______________________________________________________________________

                                 A BILL


 
 To amend title XVIII of the Social Security Act to encourage Medicare 
   beneficiaries to voluntarily adopt advance directives guiding the 
                       medical care they receive.

    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 ``Medicare Choices Empowerment and 
Protection Act''.

SEC. 2. MEDICARE ADVANCE DIRECTIVE CERTIFICATION PROGRAM.

    Part B of title XVIII of the Social Security Act (42 U.S.C. 1395 et 
seq.) is amended by adding at the end the following new section:

           ``medicare advance directive certification program

    ``Sec. 1849.  (a) In General.--
            ``(1) Establishment of program.--The Secretary shall 
        establish and implement an Advance Directive Certification 
        Program (in this section referred to as the `Program') under 
        which the Secretary shall encourage eligible beneficiaries to 
        adopt and maintain certified advance directives to guide the 
        delivery of health care to such beneficiaries. The Secretary 
        shall implement the Program within 3 years of the date of 
        enactment of this section.
            ``(2) Definitions.--In this section:
                    ``(A) Certified advance directive.--The term 
                `certified advance directive' means any written or 
                electronically stored statement by an eligible 
                beneficiary that--
                            ``(i) provides instructions that outline 
                        the kind of medical treatments and care that 
                        such beneficiary would want or not want under 
                        particular conditions, and may also include the 
                        identification of a health care proxy or legal 
                        representative to make medical treatment 
                        decisions for the beneficiary if the 
                        beneficiary becomes unable to make or 
                        communicate those decisions; and
                            ``(ii) is offered by an entity that has 
                        received accreditation from the Secretary under 
                        this section.
                    ``(B) Eligible beneficiary.--The term `eligible 
                beneficiary' means an individual enrolled under this 
                part.
            ``(3) Voluntary.--Participation in the Program shall be 
        voluntary with respect to the eligible beneficiary and an 
        eligible beneficiary who has registered a certified advance 
        directive under the Program may terminate such directive at any 
        time. Nothing in this section shall require an eligible 
        beneficiary to adopt or maintain a certified advance directive.
            ``(4) Best practices.--In establishing and implementing the 
        Program, the Secretary shall consider best practices within 
        existing advance directive registry technologies, programs, and 
        systems, including web-based or cloud-based advance directive 
        technologies, which may utilize time and date stamps, video, or 
        other innovative measures to protect the authenticity, improve 
        the quality, and enhance the security of such directives.
            ``(5) State law.--This section shall in no way supercede, 
        abrogate, or otherwise interfere with State law governing 
        advance directives.
    ``(b) Registration.--
            ``(1) In general.--The Secretary shall establish procedures 
        for an eligible beneficiary to register such beneficiary's 
        adoption of a certified advance directive under the Program. 
        Such procedures shall ensure that registration is available 
        both through an online and manual process. The Secretary shall 
        also establish procedures to ensure Program participants can 
        update previously registered information that is no longer 
        accurate and indicate that an advance directive has been 
        terminated.
            ``(2) Required information.--In addition to such other 
        information as the Secretary may deem appropriate, an eligible 
        beneficiary seeking to register a certified advance directive 
        under the program shall indicate where the advance directive is 
        maintained.
            ``(3) Registration periods.--The procedures established 
        under paragraph (1) shall provide that registration under the 
        Program shall occur during--
                    ``(A) an eligible beneficiary's initial Part C 
                enrollment as described in paragraph (1) of section 
                1851(e); and
                    ``(B) the annual, coordinated election period under 
                paragraph (3) of such section.
            ``(4) Privacy and security.--
                    ``(A) In general.--The Secretary shall ensure that 
                all aspects of the registration system comply with the 
                Federal regulations (concerning the privacy of 
                individually identifiable health information) 
                promulgated under section 264(c) of the Health 
                Insurance Portability and Accountability Act of 1996.
                    ``(B) Access.--The Secretary shall utilize 
                standardized data protections and privacy standards, 
                including the Federal regulations described in 
                paragraph (1), to ensure that the registration record 
                of an eligible beneficiary can only be accessed by--
                            ``(i) the beneficiary, through the process 
                        established under paragraph (1); and
                            ``(ii) providers of services and suppliers 
                        participating under this title, through a 
                        process established by the Secretary.
    ``(c) Accreditation.--
            ``(1) In general.--Under the Program, the Secretary shall--
                    ``(A) grant accreditation to advance directive 
                vendors and other entities providing advance directives 
                that meet the accreditation criteria established under 
                paragraph (2); and
                    ``(B) establish a process whereby advance directive 
                vendors and other entities providing advance directives 
                may obtain accreditation under this subsection.
            ``(2) Accreditation criteria.--The Secretary shall 
        establish accreditation criteria for advance directive vendors 
        and other entities providing advance directives that seek to 
        offer advance directives to be certified under the Program. 
        Such criteria shall include the following:
                    ``(A) Process for adopting advance directive.--The 
                advance directive vendor or other entity providing an 
                advance directive shall allow a beneficiary to create, 
                adopt, modify, and terminate an advance directive--
                            ``(i) through an online process; and
                            ``(ii) as an alternative to the online 
                        process, through a manual process that employs 
                        paper documents.
                    ``(B) Access.--The advance directive vendor or 
                other entity providing an advance directive shall 
                maintain advance directives in such a way that--
                            ``(i) an eligible beneficiary who has 
                        adopted an advance directive with such vendor 
                        or entity and any family member, legal 
                        representative, or health care proxy legally 
                        designated by such beneficiary has direct, near 
                        real-time online access to the beneficiary's 
                        advance directive for purposes of viewing and 
                        sharing such advance directive;
                            ``(ii) in the case of an eligible 
                        beneficiary who has adopted an advance 
                        directive with such vendor or entity or any 
                        family member, legal representative, or health 
                        care proxy legally designated by such 
                        beneficiary who is unable or unwilling to use 
                        the online access under subparagraph (A), such 
                        individual is able to obtain a hard copy of the 
                        beneficiary's advance directive for the 
                        purposes of viewing and sharing such advance 
                        directive; and
                            ``(iii) providers of services and suppliers 
                        participating under this title have near real-
                        time access to the advance directive of an 
                        eligible beneficiary who has adopted an advance 
                        directive with such vendor or entity.
                    ``(C) Privacy protections.--
                            ``(i) In general.--The advance directive 
                        vendor or other entity providing an advance 
                        directive shall comply with the Federal 
                        regulations (concerning the privacy of 
                        individually identifiable health information) 
                        promulgated under section 264(c) of the Health 
                        Insurance Portability and Accountability Act of 
                        1996 (42 U.S.C. 1320d-2 note).
                            ``(ii) Access.--Such vendor or entity shall 
                        utilize standardized data protections and 
                        privacy standards, including the Federal 
                        regulations described in paragraph (1), to 
                        ensure that the content of an eligible 
                        beneficiary's advance directive is owned and 
                        maintained by the beneficiary and can only be 
                        accessed by--
                                    ``(I) the beneficiary or the 
                                beneficiary's designee pursuant to 
                                clauses (i) and (ii) of subparagraph 
                                (A); and
                                    ``(II) a provider of services or a 
                                supplier pursuant to subparagraph 
                                (A)(iii).
                    ``(D) Security and testing.--The advance directive 
                vendor or other entity providing an advance directive 
                shall certify that--
                            ``(i) all data management and data transfer 
                        elements involved in adopting, maintaining, and 
                        accessing the advance directive have 
                        successfully passed rigorous independent 
                        testing regarding standards of timeliness, 
                        accuracy, and efficiency;
                            ``(ii) the data management and data 
                        transfer elements involved in adopting, 
                        maintaining, and accessing the advance 
                        directive meet widely accepted industry 
                        security standards; and
                            ``(iii) the system that provides access to 
                        the advance directive has passed real-time 
                        tests simulating a realistic volume of 
                        beneficiaries and providers accessing advance 
                        directives simultaneously.
                    ``(E) Certified advance directives.--The advance 
                directive vendor or other entity providing an advance 
                directive shall agree to offer certified advance 
                directives (as defined in subsection (a)(2)(A)).
                    ``(F) Other.--Such other criteria as the Secretary 
                may require.
    ``(d) Incentive.--
            ``(1) In general.--The Secretary shall make a one-time 
        payment of the amount specified in paragraph (2) to each 
        eligible beneficiary that adopts a certified advance directive 
        and registers such directive with the Program.
            ``(2) Amount.--
                    ``(A) In general.--For purposes of paragraph (1), 
                the amount specified in this paragraph is--
                            ``(i) for a beneficiary who registers a 
                        certified advance directive with the Program in 
                        2015--
                                    ``(I) in the case of a beneficiary 
                                that creates, adopts, and registers a 
                                certified advance directive using 
                                online processes only, $75; or
                                    ``(II) in the case of a beneficiary 
                                that creates, adopts, or registers a 
                                certified advance directive using a 
                                manual process, $50; and
                            ``(ii) for a beneficiary who registers a 
                        certified advance directive with the Program in 
                        a subsequent year, the amount specified in this 
                        paragraph for the preceding year increased by 
                        the percentage increase in the Chained Consumer 
                        Price Index for All Urban Consumers (as 
                        published by the Bureau of Labor Statistics of 
                        the Department of Labor) over the preceding 
                        year.
                    ``(B) Rounding.--If any amount determined under 
                subparagraph (A) is not a multiple of 10 cents, such 
                amount shall be rounded to the nearest multiple of 10 
                cents.
            ``(3) Administration.--The Secretary shall, through a full 
        notice and comment rulemaking process, establish procedures 
        for--
                    ``(A) making the incentive payment directly to the 
                eligible beneficiary or a personal account maintained 
                by the beneficiary at a financial institution that has 
                been designated by the beneficiary, and ensuring that 
                no other entity receives the payment on the 
                beneficiary's behalf; and
                    ``(B) ensuring that a beneficiary does not receive 
                an incentive payment under this section more than once.
    ``(e) Education and Outreach.--The Secretary shall work with 
stakeholders to conduct appropriate educational and outreach activities 
under the Program, including--
            ``(1) the inclusion of detailed information regarding the 
        personal benefits of adopting a certified advance directive and 
        participating in the Program in the Medicare and You handbook 
        under section 1804; and
            ``(2) the inclusion of detailed information regarding the 
        personal benefits of adopting a certified advance directive and 
        participating in the Program and an explanation of how the 
        Program works (which may include sample certified advance 
        directives, links to the websites of certified advance 
        directive vendors, other entities providing advance directives, 
        and stakeholder organizations, and such other information as 
        the Secretary determines useful) on the Internet website of the 
        Centers for Medicare & Medicaid Services.
    ``(f) Consultation.--In establishing and implementing the Program, 
the Secretary shall consult with, and solicit feedback from, a broad 
array of stakeholders representing the interests of eligible 
beneficiaries, health care providers, the advance directive industry 
and advance directive vendors, and faith-based organizations. Such 
stakeholders shall include physicians, nurses, hospital 
representatives, palliative and hospice caregivers, advance directive 
companies and vendors, patients' rights groups, health information 
privacy experts, elder law experts, senior groups, counselors, 
chaplains, clergy, ethicists, various other members of the faith 
community, and other individuals and entities that the Secretary 
determines appropriate.''.
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