[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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