To amend title XVIII of the Social Security Act to provide for coverage under the Medicare Program for consultations regarding orders for life sustaining treatment and to provide grants for the development and expansion of programs for such orders.

Summary: Life Sustaining Treatment Preferences Act of 2008 - Amends title XVIII (Medicare) of the Social Security Act, as amended by the Medicare Improvements for Patients and Providers Act of 2008, to extend Medicare coverage to consultations regarding an order for life sustaining treatment for qualified individuals.

Directs the Secretary of Health and Human Services to make grants to eligible entities to: (1) establish new programs for orders regarding life sustaining treatment in a state or locality; (2) expand or enhance an existing program; or (3) set up a clearinghouse of information on programs for such orders and consultative services for the development or enhancement of such programs.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Life Sustaining Treatment 
Preferences Act of 2008''.

SEC. 2. FINDINGS.

    Congress finds as follows:
            (1) Serious illness, death, and dying are often difficult 
        subjects to talk about for individuals, their families, and 
        health care professionals.
            (2) Poor communication about preferences for care at the 
        end of life can cause distress for both patients and their 
        families.
            (3) As individuals approach the last chapter of their life, 
        more can be done to educate them about treatment choices and 
        help individuals communicate to health providers what care they 
        want or do not want to receive.
            (4) A decade of research has demonstrated that orders for 
        life sustaining treatment effectively convey treatment 
        preferences, guiding medical personnel in providing or 
        withholding interventions.
            (5) Orders for life sustaining treatment differ from 
        advance directives. Advance directives (including living wills 
        and durable powers of attorney for health care) must be 
        completed while individuals have the capacity to complete them 
        and generally apply to future, hypothetical medical 
        circumstances when decisionmaking capacity is lost. Patients' 
        values, goals, and preferences, as expressed in advance 
        directives, require a thoughtful interpretive process to apply 
        to specific medical circumstances in real time. Yet, patients 
        and proxy decisionmakers are often uncertain how to apply and 
        implement patients' values and goals in unfamiliar health care 
        settings when real treatment plans and complicated decisions 
        need to be made.
            (6) Orders for life sustaining treatment complement 
        advances directives by providing a process to focus patients' 
        values, goals, and preferences on current medical circumstances 
        and to translate them into visible and portable medical orders 
        applicable across care settings, including home, long-term 
        care, emergency medical services, and hospitals. Without such 
        medical orders emergency medical personnel may be required to 
        provide treatments that may not be consistent with the 
        individual's preferences. Completion of such an order is 
        equally valuable to patients who have not executed advance 
        directives.
            (7) The following States have implemented or are developing 
        statewide programs for orders for life sustaining treatment: 
        California, Colorado, Georgia, Florida, Hawaii, Idaho, 
        Louisiana, Michigan, Missouri, Nebraska, New Hampshire, New 
        York, North Carolina, Ohio, Oregon, Tennessee, Texas, Utah, 
        Washington, and West Virginia. Localities within Maine, 
        Minnesota, Nevada, North Dakota, Pennsylvania, and Wisconsin 
        have implemented or are developing programs for orders for life 
        sustaining treatment.
            (8) Programs for orders for life sustaining treatment 
        provide valuable services to individuals, their families, and 
        health care providers through educational materials, 
        professional training on advance care planning, coordinating 
        and collaborating with hospitals, skilled nursing facilities, 
        hospice programs, home health agencies, and emergency medical 
        services to implement such orders across the continuum of care, 
        and monitoring the success of the program.
            (9) Medicare pays for acute care services provided to 
        beneficiaries, but does not pay for informed discussions 
        between beneficiaries and health providers to allow 
        beneficiaries the opportunity to determine if they desire such 
        acute care in the last months and years of life.

SEC. 3. MEDICARE COVERAGE OF CONSULTATION REGARDING ORDERS FOR LIFE 
              SUSTAINING TREATMENT.

    (a) In General.--Section 1861 of the Social Security Act (42 U.S.C. 
1395x), as amended by sections 101(a), 144(a), and 152(b) of the 
Medicare Improvements for Patients and Providers Act of 2008 (Public 
Law 110-275), is amended--
            (1) in subsection (s)(2)--
                    (A) by striking ``and'' at the end of subparagraph 
                (DD);
                    (B) by adding ``and'' at the end of subparagraph 
                (EE); and
                    (C) by adding at the end the following new 
                subparagraph:
                    ``(FF) consultations regarding an order for life 
                sustaining treatment (as defined in subsection 
                (hhh)(1)) for qualified individuals (as defined in 
                subsection (hhh)(3));''; and
            (2) by adding at the end the following new subsection:

    ``Consultation Regarding an Order for Life Sustaining Treatment

    ``(hhh)(1) The term `consultation regarding an order for life 
sustaining treatment' means, with respect to a qualified individual, 
consultations between the individual and the individual's physician (as 
defined in subsection (r)(1)) (or other health care professional 
described in paragraph (2)(A)) and, to the extent applicable, 
registered nurses, nurse practitioners, physicians' assistants, and 
social workers, regarding the establishment, implementation, and 
changes in an order regarding life sustaining treatment (as defined in 
paragraph (2)) for that individual. Such a consultation may include a 
consultation regarding--
                    ``(A) the reasons why the development of such an 
                order is beneficial to the individual and the 
                individual's family and the reasons why such an order 
                should be updated periodically as the health of the 
                individual changes;
                    ``(B) the information needed for an individual or 
                legal surrogate to make informed decisions regarding 
                the completion of such an order; and
                    ``(C) 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 decisionmaker (also known as 
                a health care proxy).
        The Secretary may limit consultations regarding an order 
        regarding life sustaining treatment to consultations furnished 
        in States, localities, or other geographic areas in which such 
        orders have been widely adopted.
    ``(2) The terms `order regarding life sustaining treatment' means, 
with respect to an individual, an actionable medical order relating to 
the treatment of that individual that--
            ``(A) is signed by a physician (as defined in subsection 
        (r)(1)) or another health care professional (as specified by 
        the Secretary and who is acting within the scope of the 
        professional's authority under State law in signing such an 
        order) and is in a form that permits it to be followed by 
        health care professionals and providers across the continuum of 
        care, including hospitals, nursing facilities, and emergency 
        medical technicians;
            ``(B) effectively communicates the individual's preferences 
        regarding life sustaining treatment, including an indication of 
        the treatment and care desired by the individual;
            ``(C) is uniquely identifiable and standardized within a 
        given locality, region, or State (as identified by the 
        Secretary);
            ``(D) is portable across care settings; and
            ``(E) may incorporate any advance directive (as defined in 
        section 1866(f)(3)) if executed by the individual.
    ``(3) The term `qualified individual' means an individual who a 
physician (as defined in subsection (r)(1)) (or other health care 
professional described in paragraph (2)(A)) determines has a chronic, 
progressive illness and, as a consequence of such illness, is as likely 
as not to die within 1 year.
    ``(4) The level of treatment indicated under paragraph (2)(B) may 
range from an indication for full treatment to an indication to limit 
some or all or specified interventions. Such indicated levels of 
treatment may include indications respecting, among other items--
            ``(A) the intensity of medical intervention if the patient 
        is pulseless, apneic, or, has serious cardiac or pulmonary 
        problems;
            ``(B) the individual's desire regarding transfer to a 
        hospital or remaining at the current care setting;
            ``(C) the use of antibiotics; and
            ``(D) the use of artificially administered nutrition.''.
    (b) Payment.--
            (1) In general.--Section 1848(j)(3) of such Act (42 U.S.C. 
        1395w-4(j)(3)), as amended by sections 144(a)(2) and 
        152(b)(1)(C) of the Medicare Improvements for Patients and 
        Providers Act of 2008 (Public Law 110-275), by inserting 
        ``(2)(FF),'' after ``(2)(EE),''.
            (2) Construction.--Nothing in this section shall be 
        construed as preventing the payment for a consultation 
        regarding an order regarding life sustaining treatment to be 
        made to multiple health care providers if they are providing 
        such consultation as a team, so long as the total amount of 
        payment is not increased by reason of the payment to multiple 
        providers.
    (c) Effective Date.--The amendments made by this section shall 
apply to consultations furnished on or after January 1, 2010.

SEC. 4. GRANTS FOR PROGRAMS FOR ORDERS REGARDING LIFE SUSTAINING 
              TREATMENT.

    (a) In General.--The Secretary of Health and Human Services shall 
make grants to eligible entities for the purpose of--
            (1) establishing new programs for orders regarding life 
        sustaining treatment in a States or localities;
            (2) expanding or enhancing an existing program for orders 
        regarding life sustaining treatment in States or localities; or
            (3) providing a clearinghouse of information on programs 
        for orders for life sustaining treatment and consultative 
        services for the development or enhancement of such programs.
    (b) Authorized Activities.--Activities funded through a grant under 
this section for an area may include--
            (1) developing such a program for the area that includes 
        hospitals, skilled nursing facilities, hospice programs, home 
        health agencies, and emergency medical technicians within the 
        area;
            (2) securing consultative services and advice from 
        institutions with experience in developing and managing such 
        programs; and
            (3) expanding an existing program for orders regarding life 
        sustaining treatment to serve more patients or enhance the 
        quality of services, including educational services for 
        patients and patients' families or training of health care 
        professionals.
    (c) Distribution of Funds.--In funding grants under this section, 
the Secretary shall ensure that, of the funds appropriated to carry out 
this section for each fiscal year--
            (1) at least two-thirds are used for establishing or 
        developing new programs for orders regarding life sustaining 
        treatment; and
            (2) one-third is used for expanding or enhancing existing 
        programs for orders regarding life sustaining treatment.
    (d) Definitions.--In this section:
            (1) The term ``eligible entity'' includes--
                    (A) an academic medical center, a medical school, a 
                State health department, a State medical association, a 
                multi-State taskforce, a hospital, or a health system 
                capable of administering a program for orders regarding 
                life sustaining treatment for a State or locality; or
                    (B) any other health care agency or entity as the 
                Secretary determines appropriate.
            (2) The term ``order regarding life sustaining treatment'' 
        has the meaning given such term in section 1861(hhh)(2) of the 
        Social Security Act, as added by section 3.
            (3) The term ``program for orders regarding life sustaining 
        treatment'' means, with respect to an area, a program that 
        supports the active use of orders regarding life sustaining 
        treatment in the area.
            (4) The term ``Secretary'' means the Secretary of Health 
        and Human Services.
    (e) Authorization of Appropriations.--To carry out this section, 
there are authorized to be appropriated such sums as may be necessary 
for each of the fiscal years 2009 through 2014.