[Congressional Record Volume 153, Number 19 (Wednesday, January 31, 2007)]
[Senate]
[Pages S1442-S1447]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ROCKEFELLER (for himself, Mr. Nelson of Florida, and Mr. 
        Lugar):
  S. 466. A bill to amend title XVIII of the Social Security Act to 
provide for coverage of an end-of-life planning consultation as part of 
an initial preventive physical examination under the Medicare program; 
to the Committee on Finance.
  Mr. ROCKEFELLER. Mr. President, death is by no means an easy subject 
to talk about; nonetheless, end-of-life care continues to be a 
controversial topic that must be addressed. Today, I am introducing 
three bills that I hope will go a long way to improve end-of-life care 
in this country. Senator Susan Collins and I are reintroducing our 
Advance Planning and Compassionate Care Act, comprehensive legislation 
that would ensure that patients' final wishes for end-of-life care are 
known, respected, and complied with. This legislation has been 
introduced in each Congress since the 105th Congress. I am hopeful that 
we will be able to move it this year.
  I am also introducing the Medicare End-of-Life Care Planning Act with 
Senators Lugar and Bill Nelson. This important bill is based on an 
amendment that I introduced during the Finance Committee's 
consideration of the Deficit Reduction Act in 2005. It would require 
physician consultation regarding advance directives during the initial 
``Welcome to Medicare'' physician visit. An end-of-life care 
consultation during a Medicare recipient's first contact with the 
program would emphasize the importance of advance planning and give him 
or her the tools necessary to understand advance directives, the 
Medicare hospice benefit, and other end-of-life care concerns. Having 
such a benefit in Medicare would undoubtedly improve patient care and 
quality at the end-of-life.
  The final bill that I would like to talk about today is the Advance 
Directives Improvement and Education Act, legislation that I am 
cosponsoring with Senators Bill Nelson and Richard Lugar. The Advance 
Directives Improvement and Education Act complements both of the bills 
I am introducing today. It includes my language on the ``Welcome to 
Medicare'' doctor's visit, which I believe is critical, but it also 
includes two other important provisions. It improves the policies for 
use and portability of advance directives across state lines, and it 
directs the Secretary of HHS to conduct a public education campaign on 
the importance of end-of-life planning.
  I am happy to be an author of each of these bills. As we have seen 
recently with the well-publicized case of Terri Shiavo, end-of-life 
decision making can be confusing and cause added anguish to an already 
sorrowful situation. The delicate nature of life and love make it very 
difficult to create strict rules governing end-of-life care, nor should 
we want to. In its present form, however, end-of-life planning and care 
for most Americans is perplexing, disjointed, and lacking an active 
dialogue. We can, and must, take action to make this process as easy as 
possible.
  It is not surprising that we face this problem. Health care 
professionals frequently use terms that are too technical or confusing 
for the average person. Patients who appear too sick to participate in 
the discussions may be excluded from determining their own destiny. And 
all too often the entire conversation never happens due to the 
discomfort of all parties involved. As a result, patients and families, 
suffer needlessly during these already difficult times. A report issued 
by the Institute of Medicine Committee on Care at the End of Life 
stated that, and I quote, ``suffering arises when the aggressive use of 
ineffectual or intrusive interventions serves to prolong the period of 
dying unnecessarily or to dishonor the dying person's wishes about 
care. Too often, dying people and their families are either not aware 
of these care options, not fully apprised of the probable benefits and 
burdens of these various options, or are the recipients of care that is 
inconsistent with their wishes as expressed in written or oral 
directives.''
  Despite these shortcomings, the evidence tells us that most people 
want to discuss advanced directives when they are healthy and they want 
their families involved in the process. According to the American 
Psychological Association, almost 60 percent of individuals 65 or older 
state that they want their family to be given choices about treatment 
should they become incapacitated rather than leaving the decision up to 
physicians. How can we allow these serious problems to persist when 
dealing with the lives of our family and friends?
  Death is hard to think about. Death is hard to talk about. And the 
final period of time leading up to our death is hard to plan. But we 
must encourage our family, our friends, and our loved ones to discuss 
this difficult topic in an open and effective manner in order to avoid 
any additional pain when a loved one passes away. We must also provide 
them the best tools to do so.
  The legislation I am introducing today accomplishes this objective by 
developing standards for end-of-life care, facilitating opportunities 
for patients to discuss end-of-life issues with a trained professional, 
and authorizing funds for demonstration projects on innovative 
approaches to end-of-life care.
  Death is a serious, personal, and complicated issue that is 
eventually relevant to each and every one of us. Americans deserve end-
of-life care that is effective in fulfilling individual wishes, 
avoiding unnecessary disputes, and, most importantly, providing quality 
end-of-life care. Therefore, I urge my colleagues to join us in 
improving end-of-life care and reducing the amount of grief that 
inevitably comes with losing those who we hold dear.
  I ask unanimous consent that the text of each of these bills be 
printed in the Record.
  There being no objection, the text of the bills was ordered to be 
printed in the Record, as follows:

                                 S. 464

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Advance 
     Planning and Compassionate Care Act of 2007''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Development of standards to assess end-of-life care.
Sec. 3. Study and report by the Secretary of Health and Human Services 
              regarding the establishment and implementation of a 
              national uniform policy on advance directives.
Sec. 4. Improvement of policies related to the use of advance 
              directives.
Sec. 5. National information hotline for end-of-life decisionmaking and 
              hospice care.
Sec. 6. Demonstration project for innovative and new approaches to end-
              of-life care for Medicare, Medicaid, and SCHIP 
              beneficiaries.
Sec. 7. Establishment of End-of-Life Care Advisory Board.

     SEC. 2. DEVELOPMENT OF STANDARDS TO ASSESS END-OF-LIFE CARE.

       (a) In General.--The Secretary of Health and Human 
     Services, in consultation with the Administrator of the 
     Centers for Medicare & Medicaid Services, the Director of the 
     National Institutes of Health, the Administrator of the 
     Agency for Health Care Policy and Research, and the End-of-
     Life Care Advisory Board (established under section 7), shall 
     develop outcome standards and measures to--
       (1) evaluate the performance of health care programs and 
     projects that provide end-of-life care to individuals, 
     including the quality of the care provided by such programs 
     and projects; and
       (2) assess the access to, and utilization of, such programs 
     and projects, including differences in such access and 
     utilization in rural and urban areas and for minority 
     populations.
       (b) Report to Congress.--Not later than 2 years after the 
     date of enactment of this Act, the Secretary of Health and 
     Human Services shall submit to Congress a report on the 
     outcome standards and measures developed under subsection 
     (a), together with recommendations for such legislation and 
     administrative actions as the Secretary considers 
     appropriate.

     SEC. 3. STUDY AND REPORT BY THE SECRETARY OF HEALTH AND HUMAN 
                   SERVICES REGARDING THE ESTABLISHMENT AND 
                   IMPLEMENTATION OF A NATIONAL UNIFORM POLICY ON 
                   ADVANCE DIRECTIVES.

       (a) Study.--
       (1) In general.--The Secretary of Health and Human Services 
     shall conduct a thorough study of all matters relating to the 
     establishment and implementation of a national uniform policy 
     on advance directives for individuals receiving items and 
     services under titles XVIII and XIX of the Social Security 
     Act (42 U.S.C. 1395 et seq.; 1396 et seq.).
       (2) Matters studied.--The matters studied by the Secretary 
     of Health and Human Services under paragraph (1) shall 
     include issues concerning--

[[Page S1443]]

       (A) family satisfaction that a patient's wishes, as stated 
     in the patient's advance directive, were carried out;
       (B) the portability of advance directives, including cases 
     involving the transfer of an individual from 1 health care 
     setting to another;
       (C) immunity from civil liability and criminal 
     responsibility for health care providers that follow the 
     instructions in an individual's advance directive that was 
     validly executed in, and consistent with the laws of, the 
     State in which it was executed;
       (D) conditions under which an advance directive is 
     operative;
       (E) revocation of an advance directive by an individual;
       (F) the criteria used by States for determining that an 
     individual has a terminal condition;
       (G) surrogate decisionmaking regarding end-of-life care;
       (H) the provision of adequate palliative care (as defined 
     in paragraph (3)), including pain management; and
       (I) adequate and timely referrals to hospice care programs.
       (3) Palliative care.--For purposes of paragraph (2)(H), the 
     term ``palliative care'' means interdisciplinary care for 
     individuals with a life-threatening illness or injury 
     relating to pain and symptom management and psychological, 
     social, and spiritual needs and that seeks to improve the 
     quality of life for the individual and the individual's 
     family.
       (b) Report to Congress.--Not later than 18 months after the 
     date of enactment of this Act, the Secretary of Health and 
     Human Services shall submit to Congress a report on the study 
     conducted under subsection (a), together with recommendations 
     for such legislation and administrative actions as the 
     Secretary considers appropriate.
       (c) Consultation.--In conducting the study and developing 
     the report under this section, the Secretary of Health and 
     Human Services shall consult with the End-of-Life Care 
     Advisory Board (established under section 7), the Uniform Law 
     Commissioners, and other interested parties.

     SEC. 4. IMPROVEMENT OF POLICIES RELATED TO THE USE OF ADVANCE 
                   DIRECTIVES.

       (a) Medicare.--Section 1866(f) of the Social Security Act 
     (42 U.S.C. 1395cc(f)) is amended--
       (1) in paragraph (1)--
       (A) in subparagraph (B), by inserting ``and if presented by 
     the individual, to include the content of such advance 
     directive in a prominent part of such record'' before the 
     semicolon at the end;
       (B) in subparagraph (D), by striking ``and'' after the 
     semicolon at the end;
       (C) in subparagraph (E), by striking the period at the end 
     and inserting ``; and''; and
       (D) by inserting after subparagraph (E) the following new 
     subparagraph:
       ``(F) to provide each individual with the opportunity to 
     discuss issues relating to the information provided to that 
     individual pursuant to subparagraph (A) with an appropriately 
     trained professional.'';
       (2) in paragraph (3), by striking ``a written'' and 
     inserting ``an''; and
       (3) by adding at the end the following new paragraph:
       ``(5)(A) An advance directive validly executed outside of 
     the State in which such advance directive is presented by an 
     adult individual to a provider of services, a Medicare 
     Advantage organization, or a prepaid or eligible organization 
     shall be given the same effect by that provider or 
     organization as an advance directive validly executed under 
     the law of the State in which it is presented would be given 
     effect.
       ``(B)(i) The definition of an advanced directive shall also 
     include actual knowledge of instructions made while an 
     individual was able to express the wishes of such individual 
     with regard to health care.
       ``(ii) For purposes of clause (i), the term `actual 
     knowledge' means the possession of information of an 
     individual's wishes communicated to the health care provider 
     orally or in writing by the individual, the individual's 
     medical power of attorney representative, the individual's 
     health care surrogate, or other individuals resulting in the 
     health care provider's personal cognizance of these wishes. 
     Other forms of imputed knowledge are not actual knowledge.
       ``(C) The provisions of this paragraph shall preempt any 
     State law to the extent such law is inconsistent with such 
     provisions. The provisions of this paragraph shall not 
     preempt any State law that provides for greater portability, 
     more deference to a patient's wishes, or more latitude in 
     determining a patient's wishes.''.
       (b) Medicaid.--Section 1902(w) of the Social Security Act 
     (42 U.S.C. 1396a(w)) is amended--
       (1) in paragraph (1)--
       (A) in subparagraph (B)--
       (i) by striking ``in the individual's medical record'' and 
     inserting ``in a prominent part of the individual's current 
     medical record''; and
       (ii) by inserting ``and if presented by the individual, to 
     include the content of such advance directive in a prominent 
     part of such record'' before the semicolon at the end;
       (B) in subparagraph (D), by striking ``and'' after the 
     semicolon at the end;
       (C) in subparagraph (E), by striking the period at the end 
     and inserting ``; and''; and
       (D) by inserting after subparagraph (E) the following new 
     subparagraph:
       ``(F) to provide each individual with the opportunity to 
     discuss issues relating to the information provided to that 
     individual pursuant to subparagraph (A) with an appropriately 
     trained professional.'';
       (2) in paragraph (4), by striking ``a written'' and 
     inserting ``an''; and
       (3) by adding at the end the following paragraph:
       ``(6)(A) An advance directive validly executed outside of 
     the State in which such advance directive is presented by an 
     adult individual to a provider or organization shall be given 
     the same effect by that provider or organization as an 
     advance directive validly executed under the law of the State 
     in which it is presented would be given effect.
       ``(B)(i) The definition of an advanced directive shall also 
     include actual knowledge of instructions made while an 
     individual was able to express the wishes of such individual 
     with regard to health care.
       ``(ii) For purposes of clause (i), the term `actual 
     knowledge' means the possession of information of an 
     individual's wishes communicated to the health care provider 
     orally or in writing by the individual, the individual's 
     medical power of attorney representative, the individual's 
     health care surrogate, or other individuals resulting in the 
     health care provider's personal cognizance of these wishes. 
     Other forms of imputed knowledge are not actual knowledge.
       ``(C) The provisions of this paragraph shall preempt any 
     State law to the extent such law is inconsistent with such 
     provisions. The provisions of this paragraph shall not 
     preempt any State law that provides for greater portability, 
     more deference to a patient's wishes, or more latitude in 
     determining a patient's wishes.''.
       (c) Study and Report Regarding Implementation.--
       (1) Study.--The Secretary of Health and Human Services 
     shall conduct a study regarding the implementation of the 
     amendments made by subsections (a) and (b).
       (2) Report.--Not later than 18 months after the date of 
     enactment of this Act, the Secretary of Health and Human 
     Services shall submit to Congress a report on the study 
     conducted under paragraph (1), together with recommendations 
     for such legislation and administrative actions as the 
     Secretary considers appropriate.
       (d) Effective Dates.--
       (1) In general.--Subject to paragraph (2), the amendments 
     made by subsections (a) and (b) shall apply to provider 
     agreements and contracts entered into, renewed, or extended 
     under title XVIII of the Social Security Act (42 U.S.C. 1395 
     et seq.), and to State plans under title XIX of such Act (42 
     U.S.C. 1396 et seq.), on or after such date as the Secretary 
     of Health and Human Services specifies, but in no case may 
     such date be later than 1 year after the date of enactment of 
     this Act.
       (2) Extension of effective date for state law amendment.--
     In the case of a State plan under title XIX of the Social 
     Security Act (42 U.S.C. 1396 et seq.) which the Secretary of 
     Health and Human Services determines requires State 
     legislation in order for the plan to meet the additional 
     requirements imposed by the amendments made by subsection 
     (b), the State plan shall not be regarded as failing to 
     comply with the requirements of such title solely on the 
     basis of its failure to meet these additional requirements 
     before the first day of the first calendar quarter beginning 
     after the close of the first regular session of the State 
     legislature that begins after the date of enactment of this 
     Act. For purposes of the previous sentence, in the case of a 
     State that has a 2-year legislative session, each year of the 
     session is considered to be a separate regular session of the 
     State legislature.

     SEC. 5. NATIONAL INFORMATION HOTLINE FOR END-OF-LIFE 
                   DECISIONMAKING AND HOSPICE CARE.

       The Secretary of Health and Human Services, acting through 
     the Administrator of the Centers for Medicare & Medicaid 
     Services, shall operate directly, or by grant, contract, or 
     interagency agreement, out of funds otherwise appropriated to 
     the Secretary, a clearinghouse and a 24-hour toll-free 
     telephone hotline in order to provide consumer information 
     about advance directives (as defined in section 1866(f)(3) of 
     the Social Security Act (42 U.S.C. 1395cc(f)(3)), as amended 
     by section 4(a)), end-of-life decisionmaking, and available 
     end-of-life and hospice care services. In carrying out the 
     preceding sentence, the Administrator may designate an 
     existing clearinghouse and 24-hour toll-free telephone 
     hotline or, if no such entity is appropriate, may establish a 
     new clearinghouse and a 24-hour toll-free telephone hotline.

     SEC. 6. DEMONSTRATION PROJECT FOR INNOVATIVE AND NEW 
                   APPROACHES TO END-OF-LIFE CARE FOR MEDICARE, 
                   MEDICAID, AND SCHIP BENEFICIARIES.

       (a) Establishment.--
       (1) In general.--The Secretary, acting through the 
     Administrator of the Centers for Medicare & Medicaid 
     Services, shall conduct a demonstration project under which 
     the Secretary contracts with entities operating programs in 
     order to develop new and innovative approaches to providing 
     end-of-life care to Medicare beneficiaries, Medicaid 
     beneficiaries, and SCHIP beneficiaries.
       (2) Application.--Any entity seeking to participate in the 
     demonstration project shall submit to the Secretary an 
     application in such form and manner as the Secretary may 
     require.
       (3) Duration.--The authority of the Secretary to conduct 
     the demonstration project shall terminate at the end of the 
     5-year period beginning on the date the Secretary implements 
     the demonstration project.

[[Page S1444]]

       (b) Selection Criteria.--
       (1) In general.--Subject to paragraphs (2) and (3), in 
     selecting entities to participate in the demonstration 
     project, the Secretary shall select entities that will allow 
     for programs to be conducted in a variety of States, in an 
     array of care settings, and that reflect--
       (A) a balance between urban and rural settings;
       (B) cultural diversity; and
       (C) various modes of medical care and insurance, such as 
     fee-for-service, preferred provider organizations, health 
     maintenance organizations, hospice care, home care services, 
     long-term care, pediatric care, and integrated delivery 
     systems.
       (2) Preferences.--The Secretary shall give preference to 
     entities operating programs that--
       (A) will serve Medicare beneficiaries, Medicaid 
     beneficiaries, or SCHIP beneficiaries who are dying of 
     illnesses that are most prevalent under the Medicare program, 
     the Medicaid program, or SCHIP, respectively; and
       (B) appear capable of sustained service and broad 
     replication at a reasonable cost within commonly available 
     organizational structures.
       (3) Selection of program that provides pediatric end-of-
     life care.--The Secretary shall ensure that at least 1 of the 
     entities selected to participate in the demonstration project 
     operates a program that provides pediatric end-of-life care.
       (c) Evaluation of Programs.--
       (1) In general.--Each program operated by an entity under 
     the demonstration project shall be evaluated at such regular 
     intervals as the Secretary determines are appropriate.
       (2) Use of private entities to conduct evaluations.--The 
     Secretary, in consultation with the End-of-Life Care Advisory 
     Board (established under section 7), shall contract with 1 or 
     more private entities to coordinate and conduct the 
     evaluations under paragraph (1). Such a contract may not be 
     awarded to an entity selected to participate in the 
     demonstration project.
       (3) Requirements for evaluations.--
       (A) Use of outcome measures and standards.--In coordinating 
     and conducting an evaluation of a program conducted under the 
     demonstration project, an entity shall use the outcome 
     standards and measures required to be developed under section 
     2 as soon as those standards and measures are available.
       (B) Elements of evaluation.--In addition to the use of the 
     outcome standards and measures under subparagraph (A), an 
     evaluation of a program conducted under the demonstration 
     project shall include the following:
       (i) A comparison of the quality of care provided by, and of 
     the outcomes for Medicare beneficiaries, Medicaid 
     beneficiaries, and SCHIP beneficiaries, and the families of 
     such beneficiaries enrolled in, the program being evaluated 
     to the quality of care and outcomes for such individuals that 
     would have resulted if care had been provided under existing 
     delivery systems.
       (ii) An analysis of how ongoing measures of quality and 
     accountability for improvement and excellence could be 
     incorporated into the program being evaluated.
       (iii) A comparison of the costs of the care provided to 
     Medicare beneficiaries, Medicaid beneficiaries, and SCHIP 
     beneficiaries under the program being evaluated to the costs 
     of such care that would have been incurred under the Medicare 
     program, the Medicaid program, and SCHIP if such program had 
     not been conducted.
       (iv) An analysis of whether the program being evaluated 
     implements practices or procedures that result in improved 
     patient outcomes, resource utilization, or both.
       (v) An analysis of--

       (I) the population served by the program being evaluated; 
     and
       (II) how accurately that population reflects the total 
     number of Medicare beneficiaries, Medicaid beneficiaries, and 
     SCHIP beneficiaries residing in the area who are in need of 
     services offered by such program.

       (vi) An analysis of the eligibility requirements and 
     enrollment procedures for the program being evaluated.
       (vii) An analysis of the services provided to beneficiaries 
     enrolled in the program being evaluated and the utilization 
     rates for such services.
       (viii) An analysis of the structure for the provision of 
     specific services under the program being evaluated.
       (ix) An analysis of the costs of providing specific 
     services under the program being evaluated.
       (x) An analysis of any procedures for offering Medicare 
     beneficiaries, Medicaid beneficiaries, and SCHIP 
     beneficiaries enrolled in the program being evaluated a 
     choice of services and how the program responds to the 
     preferences of such beneficiaries.
       (xi) An analysis of the quality of care provided to, and of 
     the outcomes for, Medicare beneficiaries, Medicaid 
     beneficiaries, and SCHIP beneficiaries, and the families of 
     such beneficiaries, that are enrolled in the program being 
     evaluated.
       (xii) An analysis of any ethical, cultural, or legal 
     concerns--

       (I) regarding the program being evaluated; and
       (II) with the replication of such program in other 
     settings.

       (xiii) An analysis of any changes to regulations or of any 
     additional funding that would result in more efficient 
     procedures or improved outcomes under the program being 
     evaluated.
       (d) Waiver Authority.--The Secretary may waive compliance 
     with any of the requirements of titles XI, XVIII, XIX, and 
     XXI of the Social Security Act (42 U.S.C. 1301 et seq.; 1395 
     et seq.; 1396 et seq.; 1397aa et seq.) which, if applied, 
     would prevent the demonstration project carried out under 
     this section from effectively achieving the purpose of such 
     project.
       (e) Reports to Congress.--
       (1) Annual reports by secretary.--
       (A) In general.--Beginning 1 year after the date of 
     enactment of this Act, and annually thereafter, the Secretary 
     shall submit to Congress a report on the demonstration 
     project and on the quality of end-of-life care under the 
     Medicare program, the Medicaid program, and SCHIP, together 
     with recommendations for such legislation and administrative 
     actions as the Secretary considers appropriate.
       (B) Summary of recent studies.--A report submitted under 
     subparagraph (A) shall include a summary of any recent 
     studies and advice from experts in the health care field 
     regarding the ethical, cultural, and legal issues that may 
     arise when attempting to improve the health care system to 
     meet the needs of individuals with serious and eventually 
     terminal conditions.
       (C) Continuation or replication of demonstration 
     projects.--The first report submitted under subparagraph (A) 
     after the 3-year anniversary of the date the Secretary 
     implements the demonstration project shall include 
     recommendations regarding whether such demonstration project 
     should be continued beyond the period described in subsection 
     (a)(3) and whether broad replication of any of the programs 
     conducted under the demonstration project should be 
     initiated.
       (2) Report by end-of-life care advisory board on 
     demonstration project.--
       (A) In general.--Not later than 2 years after the 
     conclusion of the demonstration project, the End-of-Life 
     Advisory Board shall submit a report to the Secretary and 
     Congress on such project.
       (B) Contents.--The report submitted under subparagraph (A) 
     shall contain--
       (i) an evaluation of the effectiveness of the demonstration 
     project; and
       (ii) recommendations for such legislation and 
     administrative actions as the Board considers appropriate.
       (f) Funding.--There are appropriated such sums as are 
     necessary for conducting the demonstration project and for 
     preparing and submitting the reports required under 
     subsection (e)(1).
       (g) Definitions.--In this section:
       (1) Demonstration project.--The term ``demonstration 
     project'' means the demonstration project conducted under 
     this section.
       (2) Medicaid beneficiaries.--The term ``Medicaid 
     beneficiaries'' means individuals who are enrolled in the 
     State Medicaid program.
       (3) Medicaid program.--The term ``Medicaid program'' means 
     the health care program under title XIX of the Social 
     Security Act (42 U.S.C. 1395 et seq.).
       (4) Medicare beneficiaries.--The term ``Medicare 
     beneficiaries'' means individuals who are entitled to, or 
     enrolled for, benefits under part A or enrolled for benefits 
     under part B of the Medicare program.
       (5) Medicare program.--The term ``Medicare program'' means 
     the health care program under title XVIII of the Social 
     Security Act (42 U.S.C. 1395 et seq.).
       (6) SCHIP.--The term ``SCHIP'' means the State children's 
     health insurance program under title XXI of the Social 
     Security Act (42 U.S.C. 1397aa et seq.).
       (7) SCHIP beneficiary.--The term ``SCHIP beneficiary'' 
     means an individual who is enrolled in SCHIP.
       (8) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services.

     SEC. 7. ESTABLISHMENT OF END-OF-LIFE CARE ADVISORY BOARD.

       (a) Establishment.--There is established within the 
     Department of Health and Human Services an End-of-Life Care 
     Advisory Board (in this section referred to as the 
     ``Board'').
       (b) Structure and Membership.--
       (1) In general.--The Board shall be composed of 15 members 
     who shall be appointed by the Secretary of Health and Human 
     Services (in this section referred to as the ``Secretary'').
       (2) Required representation.--The Secretary shall ensure 
     that the following groups, organizations, and associations 
     are represented in the membership of the Board:
       (A) An end-of-life consumer advocacy organization.
       (B) A senior citizen advocacy organization.
       (C) A physician-based hospice or palliative care 
     organization.
       (D) A nurse-based hospice or palliative care organization.
       (E) A hospice or palliative care provider organization.
       (F) A hospice or palliative care representative that serves 
     the veterans population.
       (G) A physician-based medical association.
       (H) A physician-based pediatric medical association.
       (I) A home health-based nurses association.
       (J) A hospital-based or health system-based palliative care 
     group.
       (K) A children-based or family-based hospice resource 
     group.
       (L) A cancer pain management resource group.

[[Page S1445]]

       (M) A cancer research and policy advocacy group.
       (N) An end-of-life care policy advocacy group.
       (O) An interdisciplinary end-of-life care academic 
     institution.
       (3) Ethnic diversity requirement.--The Secretary shall 
     ensure that the members of the Board appointed under 
     paragraph (1) represent the ethnic diversity of the United 
     States.
       (4) Prohibition.--No individual who is a Federal officer or 
     employee may serve as a member of the Board.
       (5) Terms of appointment.--Each member of the Board shall 
     serve for a term determined appropriate by the Secretary.
       (6) Chairperson.--The Secretary shall designate a member of 
     the Board as chairperson.
       (c) Meetings.--The Board shall meet at the call of the 
     chairperson but not less often than every 3 months.
       (d) Duties.--
       (1) In general.--The Board shall advise the Secretary on 
     all matters related to the furnishing of end-of-life care to 
     individuals.
       (2) Specific duties.--The specific duties of the Board are 
     as follows:
       (A) Consulting.--The Board shall consult with the Secretary 
     regarding--
       (i) the development of the outcome standards and measures 
     under section 2;
       (ii) conducting the study and submitting the report under 
     section 3; and
       (iii) the selection of private entities to conduct 
     evaluations pursuant to section 6(c)(2).
       (B) Report on demonstration project.--The Board shall 
     submit the report required under section 6(e)(2).
       (e) Members To Serve Without Compensation.--
       (1) In general.--All members of the Board shall serve on 
     the Board without compensation for such service.
       (2) Travel expenses.--The members of the Board shall be 
     allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Board.
       (f) Staff.--
       (1) In general.--The chairperson of the Board may, without 
     regard to the civil service laws and regulations, appoint and 
     terminate an executive director and such other additional 
     personnel as may be necessary to enable the Board to perform 
     its duties. The employment of an executive director shall be 
     subject to confirmation by the Board.
       (2) Compensation.--The chairperson of the Board may fix the 
     compensation of the executive director and other personnel 
     without regard to chapter 51 and subchapter III of chapter 53 
     of title 5, United States Code, relating to classification of 
     positions and General Schedule pay rates, except that the 
     rate of pay for the executive director and other personnel 
     may not exceed the rate payable for level V of the Executive 
     Schedule under section 5316 of such title.
       (3) Personnel as federal employees.--
       (A) In general.--The executive director and any personnel 
     of the Board who are employees shall be employees under 
     section 2105 of title 5, United States Code, for purposes of 
     chapters 63, 81, 83, 84, 85, 87, 89, and 90 of that title.
       (B) Members of board.--Subparagraph (A) shall not be 
     construed to apply to members of the Board.
       (g) Detail of Government Employees.--Any Federal Government 
     employee may be detailed to the Board without additional 
     reimbursement (other than the employee's regular 
     compensation), and such detail shall be without interruption 
     or loss of civil service status or privilege.
       (h) Procurement of Temporary and Intermittent Services.--
     The chairperson of the Board may procure temporary and 
     intermittent services under section 3109(b) of title 5, 
     United States Code, at rates for individuals which do not 
     exceed the daily equivalent of the annual rate of basic pay 
     prescribed for level V of the Executive Schedule under 
     section 5316 of such title.
       (i) Federal Advisory Committee Act.--Section 14 of the 
     Federal Advisory Committee Act (5 U.S.C. App.) shall not 
     apply to the Board.
       (j) Termination.--The Board shall terminate 90 days after 
     the date on which the Board submits the report under section 
     6(e)(2).
       (k) Funding.--Funding for the operation of the Board shall 
     be from amounts otherwise appropriated to the Department of 
     Health and Human Services.

                                 S. 465

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

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

     SEC. 2. ADVANCE DIRECTIVES.

       (a) Findings.--Congress makes the following findings:
       (1) Every year 2,500,000 people die in the United States. 
     Eighty percent of those people die in institutions such as 
     hospitals, nursing homes, and other facilities. Chronic 
     illnesses, such as cancer and heart disease, account for 2 
     out of every 3 deaths.
       (2) In 1997, the Supreme Court of the United States, in its 
     decisions in Washington v. Glucksberg and Vacco v. Quill, 
     reaffirmed the constitutional right of competent adults to 
     refuse unwanted medical treatment. In those cases, the Court 
     stressed the use of advance directives as a means of 
     safeguarding that right should those adults become incapable 
     of deciding for themselves.
       (3) A survey published in 2005 estimated that the overall 
     prevalence of advance directives is 29 percent of the general 
     population, despite the passage of the Patient Self-
     Determination Act in 1990, which requires that health care 
     providers tell patients about advance directives.
       (4) Competent adults should complete advance care plans 
     stipulating their health care decisions in the event that 
     they become unable to speak for themselves. Through the 
     execution of advance directives, including living wills and 
     durable powers of attorney for health care according to the 
     laws of the State in which they reside, individuals can 
     protect their right to express their wishes and have them 
     respected.
       (b) Purposes.--The purposes of this section are to improve 
     access to information about individuals' health care options 
     and legal rights for care near the end of life, to promote 
     advance care planning and decisionmaking so that individuals' 
     wishes are known should they become unable to speak for 
     themselves, to engage health care providers in disseminating 
     information about and assisting in the preparation of advance 
     directives, which include living wills and durable powers of 
     attorney for health care, and for other purposes.
       (c) Medicare Coverage of End-of-Life Planning and 
     Consultations as Part of Initial Preventive Physical 
     Examination.--
       (1) In general.--Section 1861(ww) of the Social Security 
     Act (42 U.S.C. 1395x(ww)) is amended--
       (A) in paragraph (1), by striking ``paragraph (2),'' and 
     inserting ``paragraph (2) and an end-of-life planning 
     consultation (as defined in paragraph (3)),''; and
       (B) by adding at the end the following new paragraph:
       ``(3) For purposes of paragraph (1), the term `end-of-life 
     planning consultation' means a consultation between the 
     physician and an individual regarding--
       ``(A) the importance of preparing advance directives in 
     case an injury or illness causes the individual to be unable 
     to make health care decisions;
       ``(B) the situations in which an advance directive is 
     likely to be relied upon;
       ``(C) the reasons that the development of a comprehensive 
     end-of-life plan is beneficial and the reasons that such a 
     plan should be updated periodically as the health of the 
     individual changes;
       ``(D) the identification of resources that an individual 
     may use to determine the requirements of the State in which 
     such individual resides so that the treatment wishes of that 
     individual will be carried out if the individual is unable to 
     communicate those wishes, including requirements regarding 
     the designation of a surrogate decision maker (health care 
     proxy); and
       ``(E) whether or not the physician is willing to follow the 
     individual's wishes as expressed in an advance directive.''.
       (2) Effective date.--The amendments made by paragraph (1) 
     shall apply to initial preventive physical examinations 
     provided on or after January 1, 2008.
       (d) Improvement of Policies Related to the Use and 
     Portability of Advance Directives.--
       (1) Medicare.--Section 1866(f) of the Social Security Act 
     (42 U.S.C. 1395cc(f)) is amended--
       (A) in paragraph (1)--
       (i) in subparagraph (B), by inserting ``and if presented by 
     the individual (or on behalf of the individual), to include 
     the content of such advance directive in a prominent part of 
     such record'' before the semicolon at the end;
       (ii) in subparagraph (D), by striking ``and'' after the 
     semicolon at the end;
       (iii) in subparagraph (E), by striking the period at the 
     end and inserting ``; and''; and
       (iv) by inserting after subparagraph (E) the following new 
     subparagraph:
       ``(F) to provide each individual with the opportunity to 
     discuss issues relating to the information provided to that 
     individual pursuant to subparagraph (A) with an appropriately 
     trained professional.'';
       (B) in paragraph (3), by striking ``a written'' and 
     inserting ``an''; and
       (C) by adding at the end the following new paragraph:
       ``(5)(A) In addition to the requirements of paragraph (1), 
     a provider of services, Medicare Advantage organization, or 
     prepaid or eligible organization (as the case may be) shall 
     give effect to an advance directive executed outside the 
     State in which such directive is presented, even one that 
     does not appear to meet the formalities of execution, form, 
     or language required by the State in which it is presented to 
     the same extent as such provider or organization would give 
     effect to an advance directive that meets such requirements, 
     except that a provider or organization may decline to honor 
     such a directive if the provider or organization can 
     reasonably demonstrate that it is not an authentic expression 
     of the individual's wishes concerning his or her health care. 
     Nothing in this paragraph shall be construed to authorize the 
     administration of medical treatment otherwise prohibited by 
     the laws of the State in which the directive is presented.
       ``(B) The provisions of this paragraph shall preempt any 
     State law to the extent such

[[Page S1446]]

     law is inconsistent with such provisions. The provisions of 
     this paragraph shall not preempt any State law that provides 
     for greater portability, more deference to a patient's 
     wishes, or more latitude in determining a patient's 
     wishes.''.
       (2) Medicaid.--Section 1902(w) of the Social Security Act 
     (42 U.S.C. 1396a(w)) is amended--
       (A) in paragraph (1)--
       (i) in subparagraph (B)--

       (I) by striking ``in the individual's medical record'' and 
     inserting ``in a prominent part of the individual's current 
     medical record''; and
       (II) by inserting ``and if presented by the individual (or 
     on behalf of the individual), to include the content of such 
     advance directive in a prominent part of such record'' before 
     the semicolon at the end;

       (ii) in subparagraph (D), by striking ``and'' after the 
     semicolon at the end;
       (iii) in subparagraph (E), by striking the period at the 
     end and inserting ``; and''; and
       (iv) by inserting after subparagraph (E) the following new 
     subparagraph:
       ``(F) to provide each individual with the opportunity to 
     discuss issues relating to the information provided to that 
     individual pursuant to subparagraph (A) with an appropriately 
     trained professional.'';
       (B) in paragraph (4), by striking ``a written'' and 
     inserting ``an''; and
       (C) by adding at the end the following paragraph:
       ``(6)(A) In addition to the requirements of paragraph (1), 
     a provider or organization (as the case may be) shall give 
     effect to an advance directive executed outside the State in 
     which such directive is presented, even one that does not 
     appear to meet the formalities of execution, form, or 
     language required by the State in which it is presented to 
     the same extent as such provider or organization would give 
     effect to an advance directive that meets such requirements, 
     except that a provider or organization may decline to honor 
     such a directive if the provider or organization can 
     reasonably demonstrate that it is not an authentic expression 
     of the individual's wishes concerning his or her health care. 
     Nothing in this paragraph shall be construed to authorize the 
     administration of medical treatment otherwise prohibited by 
     the laws of the State in which the directive is presented.
       ``(B) The provisions of this paragraph shall preempt any 
     State law to the extent such law is inconsistent with such 
     provisions. The provisions of this paragraph shall not 
     preempt any State law that provides for greater portability, 
     more deference to a patient's wishes, or more latitude in 
     determining a patient's wishes.''.
       (3) Effective dates.--
       (A) In general.--Subject to subparagraph (B), the 
     amendments made by paragraphs (1) and (2) shall apply to 
     provider agreements and contracts entered into, renewed, or 
     extended under title XVIII of the Social Security Act (42 
     U.S.C. 1395 et seq.), and to State plans under title XIX of 
     such Act (42 U.S.C. 1396 et seq.), on or after such date as 
     the Secretary of Health and Human Services specifies, but in 
     no case may such date be later than 1 year after the date of 
     enactment of this Act.
       (B) Extension of effective date for state law amendment.--
     In the case of a State plan under title XIX of the Social 
     Security Act (42 U.S.C. 1396 et seq.) which the Secretary of 
     Health and Human Services determines requires State 
     legislation in order for the plan to meet the additional 
     requirements imposed by the amendments made by paragraph (2), 
     the State plan shall not be regarded as failing to comply 
     with the requirements of such title solely on the basis of 
     its failure to meet these additional requirements before the 
     first day of the first calendar quarter beginning after the 
     close of the first regular session of the State legislature 
     that begins after the date of enactment of this Act. For 
     purposes of the previous sentence, in the case of a State 
     that has a 2-year legislative session, each year of the 
     session is considered to be a separate regular session of the 
     State legislature.
       (e) Increasing Awareness of the Importance of End-of-Life 
     Planning.--Title III of the Public Health Service Act (42 
     U.S.C. 241 et seq.) is amended by adding at the end the 
     following new part:

``PART R--PROGRAMS TO INCREASE AWARENESS OF ADVANCE DIRECTIVE PLANNING 
                                 ISSUES

     ``SEC. 399Z-1. ADVANCE DIRECTIVE EDUCATION CAMPAIGNS AND 
                   INFORMATION CLEARINGHOUSES.

       ``(a) Advance Directive Education Campaign.--The Secretary 
     shall, directly or through grants awarded under subsection 
     (c), conduct a national public education campaign--
       ``(1) to raise public awareness of the importance of 
     planning for care near the end of life;
       ``(2) to improve the public's understanding of the various 
     situations in which individuals may find themselves if they 
     become unable to express their health care wishes;
       ``(3) to explain the need for readily available legal 
     documents that express an individual's wishes, through 
     advance directives (including living wills, comfort care 
     orders, and durable powers of attorney for health care); and
       ``(4) to educate the public about the availability of 
     hospice care and palliative care.
       ``(b) Information Clearinghouse.--The Secretary, directly 
     or through grants awarded under subsection (c), shall provide 
     for the establishment of a national, toll-free, information 
     clearinghouse as well as clearinghouses that the public may 
     access to find out about State-specific information regarding 
     advance directive and end-of-life decisions.
       ``(c) Grants.--
       ``(1) In general.--The Secretary shall use at least 60 
     percent of the funds appropriated under subsection (d) for 
     the purpose of awarding grants to public or nonprofit private 
     entities (including States or political subdivisions of a 
     State), or a consortium of any of such entities, for the 
     purpose of conducting education campaigns under subsection 
     (a) and establishing information clearinghouses under 
     subsection (b).
       ``(2) Period.--Any grant awarded under paragraph (1) shall 
     be for a period of 3 years.
       ``(d) Authorization of Appropriations.--There are 
     authorized to be appropriated to carry out this section 
     $25,000,000.''.
       (f) GAO Study and Report on Establishment of National 
     Advance Directive Registry.--
       (1) Study.--The Comptroller General of the United States 
     shall conduct a study on the feasibility of a national 
     registry for advance directives, taking into consideration 
     the constraints created by the privacy provisions enacted as 
     a result of the Health Insurance Portability and 
     Accountability Act of 1996 (Public Law 104-191).
       (2) Report.--Not later than 18 months after the date of 
     enactment of this Act, the Comptroller General of the United 
     States shall submit to Congress a report on the study 
     conducted under paragraph (1) together with recommendations 
     for such legislation and administrative action as the 
     Comptroller General of the United States determines to be 
     appropriate.
       (g) Effective Date.--Except as provided in subsections (c) 
     and (d), this section and the amendments made by this section 
     shall take effect on the date of enactment of this Act.

  Mr. NELSON of Florida. Mr. President, I am pleased to be joined by my 
colleagues and cosponsors Senators Jay Rockefeller and Richard Lugar as 
we introduce the Advance Directives Improvement and Education Act of 
2007.
  The Advance Directives Improvement and Education Act of 2007 has a 
simple purpose: to encourage all adults in America, especially those 65 
and older, to think about, talk about and write down their wishes for 
medical care near the end of life should they become unable to make 
decisions for themselves. Advance directives, which include a living 
will stating the individual's preferences for care, and a power of 
attorney for health care, are critical documents that each of us should 
have. The goal is clear, but reaching it requires that we educate the 
public about the importance of advance directives, offer opportunities 
for discussion of the issues, and reinforce the requirement that health 
care providers honor patients' wishes. This bill is designed to do just 
that.
  The Advance Directives Improvement and Education Act of 2007 would 
encourage new Medicare beneficiaries to prepare advance directives by 
including a physician consultation on advance directives in each 
``Welcome to Medicare'' physical exam. This initial consultation would 
cover the importance of preparing advance directives, when these 
documents are most likely to be used, and where to find additional 
resources and information. The conversation will also enable physicians 
to learn about their patients' wishes, fears, religious beliefs, and 
life experiences that might influence their medical care wishes. These 
are important aspects of a physician-patient relationship that are too 
often unaddressed.
  Another part of our bill would provide funds for the Department of 
Health and Human Services, HHS, to conduct a public education campaign 
to raise awareness of the importance of planning for care near the end 
of life. This campaign would explain what advance directives are, where 
they are available, what questions need to be asked and answered, and 
what to do with the executed documents. HHS, directly or through 
grants, would also establish an information clearinghouse where 
consumers could receive State-specific information and consumer-
friendly documents and publications.
  The bill also contains language that would make all advance 
directives ``portable,'' that is, useful from one State to another. If 
an out-of-State directive is presented, it will be presumed valid 
unless the health care provider can reasonably demonstrate that it is 
not an authentic expression of the individual's wishes concerning his 
or her health care.
  We all know about the tragic situation that occurred in Florida with 
Terri Schiavo and her family. She was

[[Page S1447]]

a young woman who was the subject of a debate about her treatment 
between her husband and her parents, a debate that was a court case and 
a legislative quagmire. Most experts agree that if she had an advance 
directive that made her wishes clear and named a health care proxy, 
there would have been no question as to who could decide the course of 
her care.
  One of the great legacies of Terri Schiavo's life will be that she 
began a national dialogue about end-of-life care and got people 
discussing living wills. Regardless of our views on the ethical, legal 
and constitutional issues surrounding her case, we all can agree that 
more people now than ever know the importance of having end-of-life 
discussions with their family, doctor, clergy or attorney. This bill 
would build upon this national dialogue and encourage more Americans to 
learn about and fill out advance directives.
  This body is a legislative institution, not a medical one. We cannot 
legislate good medical care or compassion. What we can do, what I hope 
we will do, is to enact this bill so that the American public can 
participate in improving end-of-life care. If we can do that, we will 
have done a great deal.

                                 S. 466

       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 End-of-Life Care 
     Planning Act of 2007''.

     SEC. 2. MEDICARE COVERAGE OF AN END-OF-LIFE PLANNING 
                   CONSULTATION AS PART OF AN INITIAL PREVENTIVE 
                   PHYSICAL EXAMINATION.

       (a) In General.--Section 1861(ww) of the Social Security 
     Act (42 U.S.C. 1395x(ww)) is amended--
       (1) in paragraph (1), by striking ``paragraph (2),'' and 
     inserting ``paragraph (2) and an end-of-life planning 
     consultation (as defined in paragraph (3)),''; and
       (2) by adding at the end the following new paragraph:
       ``(3) For purposes of paragraph (1), the term `end-of-life 
     planning consultation' means a consultation between the 
     physician and an individual regarding--
       ``(A) the importance of preparing advance directives in 
     case an injury or illness causes the individual to be unable 
     to make health care decisions;
       ``(B) the situations in which an advance directive is 
     likely to be relied upon;
       ``(C) the reasons why the development of a comprehensive 
     end-of-life plan is beneficial and the reasons why such a 
     plan should be updated periodically as the health of the 
     individual changes;
       ``(D) the identification of resources that an individual 
     may use to determine the requirements of the State in which 
     such individual resides so that the treatment wishes of that 
     individual will be carried out if the individual is unable to 
     communicate those wishes, including requirements regarding 
     the designation of a surrogate decision maker (health care 
     proxy); and
       ``(E) whether or not the physician is willing to follow the 
     individual's wishes as expressed in an advance directive.''.
       (b) Effective Date.--The amendments made by this section 
     shall apply to initial preventive physical examinations 
     provided on or after January 1, 2008.
                                 ______