[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 618 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 618
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
February 28, 2019
Mr. Coons (for himself, Mr. Cassidy, Mr. Barrasso, and Mr. Bennet)
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 not later than 3 years after the
date of enactment of this section.
``(2) Definitions.--In this section:
``(A) Certified advance directive.--The term
`certified advance directive' means any electronically
stored statement by an eligible beneficiary which--
``(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;
``(ii) is executed in accordance with the
law governing advance directives of the State
involved; and
``(iii) 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--
``(A) best practices within existing advance
directive registry technologies, programs, and systems,
including web-based or cloud-based advance directive
technologies--
``(i) 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;
and
``(ii) which may utilize secure email and
messaging technologies and nationally
recognized health care information technology
standards to improve the accessibility and
interoperability of such directives; and
``(B) best practices for educating beneficiaries on
means for communicating beneficiaries' authenticated
wishes to applicable family members, legal
representatives, providers or health care proxies,
including the use of email or other mail formats as
well as access through mobile devices (as defined by
the Secretary).
``(5) Enrollment and disenrollment.--The Secretary shall
establish procedures for eligible beneficiaries to enroll and
disenroll under the Program. Such procedures shall ensure that
enrollment and disenrollment is available through an online
process. The Secretary shall also establish procedures to
ensure Program participants can update or amend an advance
directive in a timely and secure manner.
``(6) State law.--This section shall in no way supercede,
abrogate, or otherwise interfere with State law governing
advance directives. Under the Program, the Secretary shall
establish a process under which the Secretary is required to
verify that digital advance directive vendors or other entities
providing a digital advance directive participating in the
program enable those using their services to complete advance
directives that fully comply with the law governing advance
directives of the State involved.
``(7) Display of statutory and alternative advance
directive forms.--Under the Program, the Centers for Medicare &
Medicaid Services shall provide, through a clearinghouse
website, links to statutory and alternative advance directive
forms and a State-by-State index to such forms to allow a
beneficiary to create, adopt, modify, and terminate an advance
directive with any content permitted or required, and in any
form authorized by a State, in accordance with the requirements
of subparagraphs (C) through (E) of subsection (e)(1) and
subsection (e)(2).
``(8) Access in cases of dispute over treatment.--Under the
Program:
``(A) Special access.--The Secretary shall
establish a process whereby, with respect to a
beneficiary with a certified advance directive, a
person described in subparagraph (B) may obtain access
to the beneficiary's advance directive for the purposes
of viewing and sharing such advance directive when--
``(i) the provisions of the advance
directive have come into force under the
applicable State's law because the beneficiary
has become incapable of making health care
decisions or under other circumstances provided
under State law; and
``(ii) at least one person described in
subparagraph (B) is questioning or disputing
the provision, withholding, or withdrawal of
medical treatment, food, or fluids with respect
to the beneficiary.
``(B) Interested individuals.--A person described
in this subparagraph, with respect to a beneficiary,
is--
``(i) any individual who is a member of any
class of persons who, under the applicable
State's law, would potentially be eligible to
serve as a health care decision maker for the
beneficiary if an advance directive had not
been executed regardless of whether higher
priority for such eligibility would be accorded
to another individual or individuals; and
``(ii) if the applicable State's law does
not designate persons or classes of persons
described in clause (i), any person related
within the third degree of consanguinity or
affinity to the beneficiary.
``(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
through an online 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 or how it may be accessed.
``(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 enrollment
under an MA plan under part C 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
subject to the access authorized under subsection
(a)(8), in accordance with subsection (c)(2)(E).
``(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);
``(ii) those authorized to access the
advance directive under subsection (a)(8) and
subsection (c)(2)(E); and
``(iii) 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, in
consultation with the General Accounting Office, 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 consist of 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
through an online process.
``(B) Vendors.--The advance directive vendor or
other entity providing an advance directive shall
comply with an annual quality review to be conducted by
the Secretary.
``(C) Use of statutory and alternative advance
directive forms.--The advance directive vendor or other
entity providing an advance directive shall enable a
beneficiary to access, complete, modify, and adopt any
advance directive applicable to the State indicated by
the beneficiary who is posted as provided under
subparagraphs (C) through (E) of subsection (e)(1) and
of subsection (e)(2).
``(D) 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, has
near real-time online access to the
beneficiary's advance directive for purposes of
viewing and sharing such advance directive,
including communication of the advance
directive and corresponding beneficiary's
wishes using nationally recognized health care
information technology data content and data
transport standards specified by the Secretary;
``(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 online access to the advance directive of
an eligible beneficiary who has adopted an
advance directive with such vendor or entity,
including communication of the advance
directive and corresponding beneficiary's
wishes through secure email and messaging
technologies and nationally recognized health
care information technology standards specified
by the Secretary to improve the accessibility
and interoperability of such directives.
``(E) 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), subject to the
access authorized under subparagraph (D) and
subsection (a)(8).
``(ii) Access.--Such vendor or entity shall
utilize standardized data protections and
privacy standards, including the Federal
regulations described in clause (i), 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
those authorized to access the advance
directive under subparagraph (D) and subsection
(a)(8).
``(F) 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.
``(G) 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)).
``(H) Beneficiary surveys.--
``(i) In general.--The advance directive
vendor or other entity providing an advance
directive shall agree to administer annual
beneficiary surveys on the information
described in clause (ii) and submit the results
of such surveys to the Centers for Medicare &
Medicaid Services.
``(ii) Information.--The information
described in this clause, with respect to an
annual beneficiary survey and certified advance
directive of a beneficiary, is the following:
``(I) Whether the beneficiary had
to pay any third party for the
creation, storage, or retrieval of the
certified advance directive.
``(II) Whether the beneficiary had
a health care encounter or emergency
that required the location, access,
retrieval, or consultation of the
certified advance directive and if so,
whether the certified advance directive
was accessible in online and in near
real-time, as required under this
section.
``(III) Whether the certified
advance directive was actionable.
``(IV) Whether medical personnel
followed the certified advance
directive.
``(d) Incentive.--
``(1) In general.--The Secretary shall make a one-time
payment of the amount specified in paragraph (2) to each
eligible beneficiary who 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
2019, $75; or
``(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) Funding.--For purposes of carrying out this
subsection, the Secretary shall provide for the transfer, from
the Federal Supplementary Medical Insurance Trust Fund under
section 1841, of such sums as the Secretary determines
necessary.
``(4) 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.--
``(1) In general.--The Secretary shall provide for--
``(A) the inclusion of the statement set forth in
paragraph (3) in the Medicare and You handbook under
section 1804 and on a clearinghouse website linked to
the Internet website of the Centers for Medicare &
Medicaid Services;
``(B) the promotion of the benefits of electronic
advance directives services, as they become available,
through the use of mass communications and other means;
``(C) the inclusion, under the heading `Statutory
Advance Directive Forms', of any relevant forms,
whether mandatory or optional, specified in the statues
or regulations of the States to be displayed on a
clearinghouse website;
``(D) the inclusion, under the heading `Alternative
Advance Directive Forms', on a separate clearinghouse
website, and in accordance with paragraph (2)--
``(i) of other advance directive forms
submitted to the Secretary by individuals and
groups in an electronic format specified by the
Secretary for which the submitting entity
includes, for each form submitted, an opinion
by an attorney licensed to practice in the
relevant State demonstrating that the submitted
form complies with the law of that State; and
``(ii) of the following disclaimer, which
shall be prominently posted on the website:
`This website includes for your consideration
alternative advance directive forms submitted
by individuals or groups reflecting different
perspectives on advance health care decisions
which you may wish to review before completing
your own advance directive.'; and
``(E) the inclusion of a user-friendly index on the
clearinghouse website by State and, in the case of the
`Alternative Advance Directive Forms', by the name of
the provider, so that a user may readily access those
statutory and alternative forms.
``(2) Alternative advance directive forms.--
``(A) In general.--For purposes of paragraph
(1)(D), the following shall apply:
``(i) Not later than 60 days after
receiving an advance directive form submitted
under such paragraph, the Secretary shall
either post the submitted form on a
clearinghouse website or provide to the
submitting entity a detailed explanation of the
basis for the Secretary's determination that
the submitted form does not comply with
relevant State or Federal law, which
determination shall be subject to judicial
review under section 702 of title 5 of the
United States Code; and
``(ii) the Secretary shall either remove or
refuse to post any submitted form if provided
with an official determination by the Attorney
General of the applicable State that the form
is not in compliance with State law, subject to
applicable State law described in subparagraph
(B).
``(B) State law described.--For purposes of
subparagraph (A), State law described in this
subparagraph is--
``(i) a ruling by a court of the applicable
State, or by a Federal court applying that
State's law, subject to subsequent rulings by a
court or courts with authority to supercede
that ruling; or
``(ii) a statute or regulation of the
applicable State that provides for a specific
procedure for officially determining whether
particular advance directive forms comply with
State law.
``(3) Statement.--For purposes of paragraph (1)(A), the
statement included in this paragraph is the following
statement, with appropriate insertions in the bracketed
segments updated at least annually:
``WHY YOU MAY WANT TO CONSIDER AN `ADVANCE DIRECTIVE' Do you ever
worry what would happen if you became unable to make health care
decisions for yourself because of an illness or injury? Do you hold
certain values and beliefs with respect to your medical treatment that
you would want to be upheld if you were unable to convey them yourself?
That's what an `advance directive' is for. You can use it to give
directions for your health care providers and family about your health
care wishes that are to be followed if you are no longer able to speak
for yourself. You can also name someone you trust, like a family member
or friend, to give health care directions for you when you can't do so
yourself.
``You should consider carefully who to choose to speak for you and
what directions you want to give to ensure your representative clearly
reflects your own values and treatment preferences. You should not feel
pressured to violate your own values and preferences, and you are
entitled to implement them without discrimination based on age or
degree of disability.
``There are many resources to help you.
``By choosing the name of a State at [INSERT name of webpage for
the index provided in paragraph (1)(E) of this subsection and its URL
(and, on the clearinghouse website, include a hyperlink to it)], you
can find sample advance directives for that State. You can see any
sample or required forms given in State law, as well as others from
individuals or groups with different viewpoints on advance health care
decisions which you may wish to review before completing your own
advance directive.
``Below is contact information for the accredited vendor in your
State who will arrange for your advance directive to be confidentially
kept online, where it can be seen by doctors who are treating you so
they are made aware of your wishes. You can also give permission to
certain other people, like family members or friends, you want to be
able to get a copy of your advance directive. If a disagreement about
your treatment develops, depending on your State's law certain other
people may also be allowed to see it.
``This vendor can also help you create an advance directive online
or with paper documents, if you wish. Online directives allow you to
change or cancel one that no longer fits with your wishes in a more
timely manner.
``[INSERT, name and contact information for currently accredited
advance directive vendor (and, on the clearinghouse website, hyperlinks
to their website).]
``Although any adult who is capable of doing so can use these
resources to complete an advance directive at any time, Medicare
beneficiaries are particularly encouraged to do so when enrolling in
Medicare or during the annual enrollment period when you can choose
among different Medicare health insurance alternatives.
``In addition, some Medicare Advantage plans or supplemental
insurance plans may offer a financial incentive or other additional
benefits for creating an advance directive online.
``By completing an advance directive you can not only make it more
likely that your wishes about health care will be known if you are
unable to tell them at the time, but also spare family, friends, and
doctors the difficulty of trying to figure out what you would have
wanted. These are matters of the highest importance that can affect
life-or-death decisions, as well as your future comfort and well-being.
You are encouraged to think about them carefully, and give serious
consideration to recording your wishes in an advance directive.''.
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