[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 2240 Introduced in Senate (IS)]
113th CONGRESS
2d Session
S. 2240
To amend title XVIII of the Social Security Act to encourage Medicare
beneficiaries to voluntarily adopt advance directives guiding the
medical care they receive.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 10, 2014
Mr. Coons (for Mr. Coburn (for himself, Mr. Coons, and Mr. Blumenthal))
introduced the following bill; which was read twice and referred to the
Committee on Finance
_______________________________________________________________________
A BILL
To amend title XVIII of the Social Security Act to encourage Medicare
beneficiaries to voluntarily adopt advance directives guiding the
medical care they receive.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Medicare Choices Empowerment and
Protection Act''.
SEC. 2. MEDICARE ADVANCE DIRECTIVE CERTIFICATION PROGRAM.
Part B of title XVIII of the Social Security Act (42 U.S.C. 1395 et
seq.) is amended by adding at the end the following new section:
``medicare advance directive certification program
``Sec. 1849. (a) In General.--
``(1) Establishment of program.--The Secretary shall
establish and implement an Advance Directive Certification
Program (in this section referred to as the `Program') under
which the Secretary shall encourage eligible beneficiaries to
adopt and maintain certified advance directives to guide the
delivery of health care to such beneficiaries. The Secretary
shall implement the Program within 3 years of the date of
enactment of this section.
``(2) Definitions.--In this section:
``(A) Certified advance directive.--The term
`certified advance directive' means any written or
electronically stored statement by an eligible
beneficiary that--
``(i) provides instructions that outline
the kind of medical treatments and care that
such beneficiary would want or not want under
particular conditions, and may also include the
identification of a health care proxy or legal
representative to make medical treatment
decisions for the beneficiary if the
beneficiary becomes unable to make or
communicate those decisions; and
``(ii) is offered by an entity that has
received accreditation from the Secretary under
this section.
``(B) Eligible beneficiary.--The term `eligible
beneficiary' means an individual enrolled under this
part.
``(3) Voluntary.--Participation in the Program shall be
voluntary with respect to the eligible beneficiary and an
eligible beneficiary who has registered a certified advance
directive under the Program may terminate such directive at any
time. Nothing in this section shall require an eligible
beneficiary to adopt or maintain a certified advance directive.
``(4) Best practices.--In establishing and implementing the
Program, the Secretary shall consider best practices within
existing advance directive registry technologies, programs, and
systems, including web-based or cloud-based advance directive
technologies, which may utilize time and date stamps, video, or
other innovative measures to protect the authenticity, improve
the quality, and enhance the security of such directives.
``(5) State law.--This section shall in no way supercede,
abrogate, or otherwise interfere with State law governing
advance directives.
``(b) Registration.--
``(1) In general.--The Secretary shall establish procedures
for an eligible beneficiary to register such beneficiary's
adoption of a certified advance directive under the Program.
Such procedures shall ensure that registration is available
both through an online and manual process. The Secretary shall
also establish procedures to ensure Program participants can
update previously registered information that is no longer
accurate and indicate that an advance directive has been
terminated.
``(2) Required information.--In addition to such other
information as the Secretary may deem appropriate, an eligible
beneficiary seeking to register a certified advance directive
under the program shall indicate where the advance directive is
maintained.
``(3) Registration periods.--The procedures established
under paragraph (1) shall provide that registration under the
Program shall occur during--
``(A) an eligible beneficiary's initial Part C
enrollment as described in paragraph (1) of section
1851(e); and
``(B) the annual, coordinated election period under
paragraph (3) of such section.
``(4) Privacy and security.--
``(A) In general.--The Secretary shall ensure that
all aspects of the registration system comply with the
Federal regulations (concerning the privacy of
individually identifiable health information)
promulgated under section 264(c) of the Health
Insurance Portability and Accountability Act of 1996.
``(B) Access.--The Secretary shall utilize
standardized data protections and privacy standards,
including the Federal regulations described in
paragraph (1), to ensure that the registration record
of an eligible beneficiary can only be accessed by--
``(i) the beneficiary, through the process
established under paragraph (1); and
``(ii) providers of services and suppliers
participating under this title, through a
process established by the Secretary.
``(c) Accreditation.--
``(1) In general.--Under the Program, the Secretary shall--
``(A) grant accreditation to advance directive
vendors and other entities providing advance directives
that meet the accreditation criteria established under
paragraph (2); and
``(B) establish a process whereby advance directive
vendors and other entities providing advance directives
may obtain accreditation under this subsection.
``(2) Accreditation criteria.--The Secretary shall
establish accreditation criteria for advance directive vendors
and other entities providing advance directives that seek to
offer advance directives to be certified under the Program.
Such criteria shall include the following:
``(A) Process for adopting advance directive.--The
advance directive vendor or other entity providing an
advance directive shall allow a beneficiary to create,
adopt, modify, and terminate an advance directive--
``(i) through an online process; and
``(ii) as an alternative to the online
process, through a manual process that employs
paper documents.
``(B) Access.--The advance directive vendor or
other entity providing an advance directive shall
maintain advance directives in such a way that--
``(i) an eligible beneficiary who has
adopted an advance directive with such vendor
or entity and any family member, legal
representative, or health care proxy legally
designated by such beneficiary has direct, near
real-time online access to the beneficiary's
advance directive for purposes of viewing and
sharing such advance directive;
``(ii) in the case of an eligible
beneficiary who has adopted an advance
directive with such vendor or entity or any
family member, legal representative, or health
care proxy legally designated by such
beneficiary who is unable or unwilling to use
the online access under subparagraph (A), such
individual is able to obtain a hard copy of the
beneficiary's advance directive for the
purposes of viewing and sharing such advance
directive; and
``(iii) providers of services and suppliers
participating under this title have near real-
time access to the advance directive of an
eligible beneficiary who has adopted an advance
directive with such vendor or entity.
``(C) Privacy protections.--
``(i) In general.--The advance directive
vendor or other entity providing an advance
directive shall comply with the Federal
regulations (concerning the privacy of
individually identifiable health information)
promulgated under section 264(c) of the Health
Insurance Portability and Accountability Act of
1996 (42 U.S.C. 1320d-2 note).
``(ii) Access.--Such vendor or entity shall
utilize standardized data protections and
privacy standards, including the Federal
regulations described in paragraph (1), to
ensure that the content of an eligible
beneficiary's advance directive is owned and
maintained by the beneficiary and can only be
accessed by--
``(I) the beneficiary or the
beneficiary's designee pursuant to
clauses (i) and (ii) of subparagraph
(A); and
``(II) a provider of services or a
supplier pursuant to subparagraph
(A)(iii).
``(D) Security and testing.--The advance directive
vendor or other entity providing an advance directive
shall certify that--
``(i) all data management and data transfer
elements involved in adopting, maintaining, and
accessing the advance directive have
successfully passed rigorous independent
testing regarding standards of timeliness,
accuracy, and efficiency;
``(ii) the data management and data
transfer elements involved in adopting,
maintaining, and accessing the advance
directive meet widely accepted industry
security standards; and
``(iii) the system that provides access to
the advance directive has passed real-time
tests simulating a realistic volume of
beneficiaries and providers accessing advance
directives simultaneously.
``(E) Certified advance directives.--The advance
directive vendor or other entity providing an advance
directive shall agree to offer certified advance
directives (as defined in subsection (a)(2)(A)).
``(F) Other.--Such other criteria as the Secretary
may require.
``(d) Incentive.--
``(1) In general.--The Secretary shall make a one-time
payment of the amount specified in paragraph (2) to each
eligible beneficiary that adopts a certified advance directive
and registers such directive with the Program.
``(2) Amount.--
``(A) In general.--For purposes of paragraph (1),
the amount specified in this paragraph is--
``(i) for a beneficiary who registers a
certified advance directive with the Program in
2015--
``(I) in the case of a beneficiary
that creates, adopts, and registers a
certified advance directive using
online processes only, $75; or
``(II) in the case of a beneficiary
that creates, adopts, or registers a
certified advance directive using a
manual process, $50; and
``(ii) for a beneficiary who registers a
certified advance directive with the Program in
a subsequent year, the amount specified in this
paragraph for the preceding year increased by
the percentage increase in the Chained Consumer
Price Index for All Urban Consumers (as
published by the Bureau of Labor Statistics of
the Department of Labor) over the preceding
year.
``(B) Rounding.--If any amount determined under
subparagraph (A) is not a multiple of 10 cents, such
amount shall be rounded to the nearest multiple of 10
cents.
``(3) Administration.--The Secretary shall, through a full
notice and comment rulemaking process, establish procedures
for--
``(A) making the incentive payment directly to the
eligible beneficiary or a personal account maintained
by the beneficiary at a financial institution that has
been designated by the beneficiary, and ensuring that
no other entity receives the payment on the
beneficiary's behalf; and
``(B) ensuring that a beneficiary does not receive
an incentive payment under this section more than once.
``(e) Education and Outreach.--The Secretary shall work with
stakeholders to conduct appropriate educational and outreach activities
under the Program, including--
``(1) the inclusion of detailed information regarding the
personal benefits of adopting a certified advance directive and
participating in the Program in the Medicare and You handbook
under section 1804; and
``(2) the inclusion of detailed information regarding the
personal benefits of adopting a certified advance directive and
participating in the Program and an explanation of how the
Program works (which may include sample certified advance
directives, links to the websites of certified advance
directive vendors, other entities providing advance directives,
and stakeholder organizations, and such other information as
the Secretary determines useful) on the Internet website of the
Centers for Medicare & Medicaid Services.
``(f) Consultation.--In establishing and implementing the Program,
the Secretary shall consult with, and solicit feedback from, a broad
array of stakeholders representing the interests of eligible
beneficiaries, health care providers, the advance directive industry
and advance directive vendors, and faith-based organizations. Such
stakeholders shall include physicians, nurses, hospital
representatives, palliative and hospice caregivers, advance directive
companies and vendors, patients' rights groups, health information
privacy experts, elder law experts, senior groups, counselors,
chaplains, clergy, ethicists, various other members of the faith
community, and other individuals and entities that the Secretary
determines appropriate.''.
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