Medicare Choices Empowerment and Protection Act

II 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) in- troduced the following bill; which was read twice and referred to the Com- mittee on Finance A BILL To amend title XVIII of the Social Security Act to encourage Medicare beneficiaries to voluntarily adopt advance direc- tives guiding the medical care they receive. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Medicare Choices Em- 4 powerment and Protection Act’’. 5 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 2 •S 618 IS SEC. 2. MEDICARE ADVANCE DIRECTIVE CERTIFICATION 1 PROGRAM. 2 Part B of title XVIII of the Social Security Act (42 3 U.S.C. 1395 et seq.) is amended by adding at the end 4 the following new section: 5 ‘‘MEDICARE ADVANCE DIRECTIVE CERTIFICATION 6 PROGRAM 7 ‘‘SEC. 1849. (a) IN GENERAL.— 8 ‘‘(1) ESTABLISHMENT OF PROGRAM.—The Sec- 9 retary shall establish and implement an Advance Di- 10 rective Certification Program (in this section re- 11 ferred to as the ‘Program’) under which the Sec- 12 retary shall encourage eligible beneficiaries to adopt 13 and maintain certified advance directives to guide 14 the delivery of health care to such beneficiaries. The 15 Secretary shall implement the Program not later 16 than 3 years after the date of enactment of this sec- 17 tion. 18 ‘‘(2) DEFINITIONS.—In this section: 19 ‘‘(A) CERTIFIED ADVANCE DIRECTIVE.— 20 The term ‘certified advance directive’ means 21 any electronically stored statement by an eligi- 22 ble beneficiary which— 23 ‘‘(i) provides instructions that outline 24 the kind of medical treatments and care 25 that such beneficiary would want or not 26 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 3 •S 618 IS want under particular conditions, and may 1 also include the identification of a health 2 care proxy or legal representative to make 3 medical treatment decisions for the bene- 4 ficiary if the beneficiary becomes unable to 5 make or communicate those decisions; 6 ‘‘(ii) is executed in accordance with 7 the law governing advance directives of the 8 State involved; and 9 ‘‘(iii) is offered by an entity that has 10 received accreditation from the Secretary 11 under this section. 12 ‘‘(B) ELIGIBLE BENEFICIARY.—The term 13 ‘eligible beneficiary’ means an individual en- 14 rolled under this part. 15 ‘‘(3) VOLUNTARY.—Participation in the Pro- 16 gram shall be voluntary with respect to the eligible 17 beneficiary and an eligible beneficiary who has reg- 18 istered a certified advance directive under the Pro- 19 gram may terminate such directive at any time. 20 Nothing in this section shall require an eligible bene- 21 ficiary to adopt or maintain a certified advance di- 22 rective. 23 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 4 •S 618 IS ‘‘(4) BEST PRACTICES.—In establishing and im- 1 plementing the Program, the Secretary shall con- 2 sider— 3 ‘‘(A) best practices within existing advance 4 directive registry technologies, programs, and 5 systems, including web-based or cloud-based ad- 6 vance directive technologies— 7 ‘‘(i) which may utilize time and date 8 stamps, video, or other innovative meas- 9 ures to protect the authenticity, improve 10 the quality, and enhance the security of 11 such directives; and 12 ‘‘(ii) which may utilize secure email 13 and messaging technologies and nationally 14 recognized health care information tech- 15 nology standards to improve the accessi- 16 bility and interoperability of such direc- 17 tives; and 18 ‘‘(B) best practices for educating bene- 19 ficiaries on means for communicating bene- 20 ficiaries’ authenticated wishes to applicable 21 family members, legal representatives, providers 22 or health care proxies, including the use of 23 email or other mail formats as well as access 24 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 5 •S 618 IS through mobile devices (as defined by the Sec- 1 retary). 2 ‘‘(5) ENROLLMENT AND DISENROLLMENT.— 3 The Secretary shall establish procedures for eligible 4 beneficiaries to enroll and disenroll under the Pro- 5 gram. Such procedures shall ensure that enrollment 6 and disenrollment is available through an online 7 process. The Secretary shall also establish proce- 8 dures to ensure Program participants can update or 9 amend an advance directive in a timely and secure 10 manner. 11 ‘‘(6) STATE LAW.—This section shall in no way 12 supercede, abrogate, or otherwise interfere with 13 State law governing advance directives. Under the 14 Program, the Secretary shall establish a process 15 under which the Secretary is required to verify that 16 digital advance directive vendors or other entities 17 providing a digital advance directive participating in 18 the program enable those using their services to 19 complete advance directives that fully comply with 20 the law governing advance directives of the State in- 21 volved. 22 ‘‘(7) DISPLAY OF STATUTORY AND ALTER- 23 NATIVE ADVANCE DIRECTIVE FORMS.—Under the 24 Program, the Centers for Medicare & Medicaid Serv- 25 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 6 •S 618 IS ices shall provide, through a clearinghouse website, 1 links to statutory and alternative advance directive 2 forms and a State-by-State index to such forms to 3 allow a beneficiary to create, adopt, modify, and ter- 4 minate an advance directive with any content per- 5 mitted or required, and in any form authorized by 6 a State, in accordance with the requirements of sub- 7 paragraphs (C) through (E) of subsection (e)(1) and 8 subsection (e)(2). 9 ‘‘(8) ACCESS IN CASES OF DISPUTE OVER 10 TREATMENT.—Under the Program: 11 ‘‘(A) SPECIAL ACCESS.—The Secretary 12 shall establish a process whereby, with respect 13 to a beneficiary with a certified advance direc- 14 tive, a person described in subparagraph (B) 15 may obtain access to the beneficiary’s advance 16 directive for the purposes of viewing and shar- 17 ing such advance directive when— 18 ‘‘(i) the provisions of the advance di- 19 rective have come into force under the ap- 20 plicable State’s law because the beneficiary 21 has become incapable of making health 22 care decisions or under other cir- 23 cumstances provided under State law; and 24 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 7 •S 618 IS ‘‘(ii) at least one person described in 1 subparagraph (B) is questioning or dis- 2 puting the provision, withholding, or with- 3 drawal of medical treatment, food, or 4 fluids with respect to the beneficiary. 5 ‘‘(B) INTERESTED INDIVIDUALS.—A per- 6 son described in this subparagraph, with re- 7 spect to a beneficiary, is— 8 ‘‘(i) any individual who is a member 9 of any class of persons who, under the ap- 10 plicable State’s law, would potentially be 11 eligible to serve as a health care decision 12 maker for the beneficiary if an advance di- 13 rective had not been executed regardless of 14 whether higher priority for such eligibility 15 would be accorded to another individual or 16 individuals; and 17 ‘‘(ii) if the applicable State’s law does 18 not designate persons or classes of persons 19 described in clause (i), any person related 20 within the third degree of consanguinity or 21 affinity to the beneficiary. 22 ‘‘(b) REGISTRATION.— 23 ‘‘(1) IN GENERAL.—The Secretary shall estab- 24 lish procedures for an eligible beneficiary to register 25 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 8 •S 618 IS such beneficiary’s adoption of a certified advance di- 1 rective under the Program. Such procedures shall 2 ensure that registration is available through an on- 3 line process. The Secretary shall also establish pro- 4 cedures to ensure Program participants can update 5 previously registered information that is no longer 6 accurate and indicate that an advance directive has 7 been terminated. 8 ‘‘(2) REQUIRED INFORMATION.—In addition to 9 such other information as the Secretary may deem 10 appropriate, an eligible beneficiary seeking to reg- 11 ister a certified advance directive under the Program 12 shall indicate where the advance directive is main- 13 tained or how it may be accessed. 14 ‘‘(3) REGISTRATION PERIODS.—The procedures 15 established under paragraph (1) shall provide that 16 registration under the Program shall occur during— 17 ‘‘(A) an eligible beneficiary’s initial enroll- 18 ment under an MA plan under part C as de- 19 scribed in paragraph (1) of section 1851(e); 20 and 21 ‘‘(B) the annual, coordinated election pe- 22 riod under paragraph (3) of such section. 23 ‘‘(4) PRIVACY AND SECURITY.— 24 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 9 •S 618 IS ‘‘(A) IN GENERAL.—The Secretary shall 1 ensure that all aspects of the registration sys- 2 tem comply with the Federal regulations (con- 3 cerning the privacy of individually identifiable 4 health information) promulgated under section 5 264(c) of the Health Insurance Portability and 6 Accountability Act of 1996 subject to the access 7 authorized under subsection (a)(8), in accord- 8 ance with subsection (c)(2)(E). 9 ‘‘(B) ACCESS.—The Secretary shall utilize 10 standardized data protections and privacy 11 standards, including the Federal regulations de- 12 scribed in paragraph (1), to ensure that the 13 registration record of an eligible beneficiary can 14 only be accessed by— 15 ‘‘(i) the beneficiary, through the proc- 16 ess established under paragraph (1); 17 ‘‘(ii) those authorized to access the 18 advance directive under subsection (a)(8) 19 and subsection (c)(2)(E); and 20 ‘‘(iii) providers of services and sup- 21 pliers participating under this title, 22 through a process established by the Sec- 23 retary. 24 ‘‘(c) ACCREDITATION.— 25 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 10 •S 618 IS ‘‘(1) IN GENERAL.—Under the Program, the 1 Secretary shall— 2 ‘‘(A) grant accreditation to advance direc- 3 tive vendors and other entities providing ad- 4 vance directives that meet the accreditation cri- 5 teria established under paragraph (2); and 6 ‘‘(B) establish a process whereby advance 7 directive vendors and other entities providing 8 advance directives may obtain accreditation 9 under this subsection. 10 ‘‘(2) ACCREDITATION CRITERIA.—The Sec- 11 retary, in consultation with the General Accounting 12 Office, shall establish accreditation criteria for ad- 13 vance directive vendors and other entities providing 14 advance directives that seek to offer advance direc- 15 tives to be certified under the Program. Such cri- 16 teria shall consist of the following: 17 ‘‘(A) PROCESS FOR ADOPTING ADVANCE 18 DIRECTIVE.—The advance directive vendor or 19 other entity providing an advance directive shall 20 allow a beneficiary to create, adopt, modify, and 21 terminate an advance directive through an on- 22 line process. 23 ‘‘(B) VENDORS.—The advance directive 24 vendor or other entity providing an advance di- 25 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 11 •S 618 IS rective shall comply with an annual quality re- 1 view to be conducted by the Secretary. 2 ‘‘(C) USE OF STATUTORY AND ALTER- 3 NATIVE ADVANCE DIRECTIVE FORMS.—The ad- 4 vance directive vendor or other entity providing 5 an advance directive shall enable a beneficiary 6 to access, complete, modify, and adopt any ad- 7 vance directive applicable to the State indicated 8 by the beneficiary who is posted as provided 9 under subparagraphs (C) through (E) of sub- 10 section (e)(1) and of subsection (e)(2). 11 ‘‘(D) ACCESS.—The advance directive ven- 12 dor or other entity providing an advance direc- 13 tive shall maintain advance directives in such a 14 way that— 15 ‘‘(i) an eligible beneficiary who has 16 adopted an advance directive with such 17 vendor or entity and any family member, 18 legal representative, or health care proxy 19 legally designated by such beneficiary has 20 direct, has near real-time online access to 21 the beneficiary’s advance directive for pur- 22 poses of viewing and sharing such advance 23 directive, including communication of the 24 advance directive and corresponding bene- 25 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 12 •S 618 IS ficiary’s wishes using nationally recognized 1 health care information technology data 2 content and data transport standards spec- 3 ified by the Secretary; 4 ‘‘(ii) in the case of an eligible bene- 5 ficiary who has adopted an advance direc- 6 tive with such vendor or entity or any fam- 7 ily member, legal representative, or health 8 care proxy legally designated by such bene- 9 ficiary who is unable or unwilling to use 10 the online access under subparagraph (A), 11 such individual is able to obtain a hard 12 copy of the beneficiary’s advance directive 13 for the purposes of viewing and sharing 14 such advance directive; and 15 ‘‘(iii) providers of services and sup- 16 pliers participating under this title have 17 near real-time online access to the advance 18 directive of an eligible beneficiary who has 19 adopted an advance directive with such 20 vendor or entity, including communication 21 of the advance directive and corresponding 22 beneficiary’s wishes through secure email 23 and messaging technologies and nationally 24 recognized health care information tech- 25 VerDate Sep 11 2014 03:04 Mar 07, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S618.IS S618 kjohnson on DSK79L0C42 with BILLS 13 •S 618 IS nology standards specified by the Secretary 1 to improve the accessibility and interope [Text truncated for display. 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