# H.R. 3200/Division B/Title II/Subtitle C
## SUBTITLE C — MISCELLANEOUS IMPROVEMENTS
### Sec. 1231. Extension of Therapy Caps Exceptions Process.

    Section 1833(g)(5) of the Social Security Act (42 U.S.C. 1395l(g)(5)), as amended by section 141 of the Medicare Improvements for Patients and Providers Act of 2008 (Public Law 110-275), is amended by striking ``December 31, 2009´´ and inserting ``December 31, 2011´´.

### Sec. 1232. Extended Months of Coverage of Immunosuppressive Drugs for Kidney Transplant Patients and Other Renal Dialysis Provisions.

    (a) Provision of Appropriate Coverage of Immunosuppressive Drugs Under the Medicare Program for Kidney Transplant Recipients.—
          (1) Continued Entitlement to Immunosuppressive Drugs.—
                (A) Kidney transplant recipients.—
                   Section 226A(b)(2) of the Social Security Act (42 U.S.C. 426–1(b)(2)) is amended by inserting ``(except for coverage of immunosuppressive drugs under section 1861(s)(2)(J))´´ before ``, with the thirty-sixth month´´.
                (B) Application.—
                   Section 1836 of such Act (42 U.S.C. 1395o) is amended—
                      (i) by striking ``Every individual who´´ and inserting ``(a) In General.—Every individual who´´; and
                      (ii) by adding at the end the following new subsection:
                      ``(b) Special Rules Applicable to Individuals Only Eligible for Coverage of Immunosuppressive Drugs.—
                         ``(1) In general.—In the case of an individual whose eligibility for benefits under this title has ended on or after January 1, 2012, except for the coverage of immunosuppressive drugs by reason of section 226A(b)(2), the following rules shall apply:
                            ``(A) The individual shall be deemed to be enrolled under this part for purposes of receiving coverage of such drugs.
                            ``(B) The individual shall be responsible for providing for payment of the portion of the premium under section 1839 which is not covered under the Medicare savings program (as defined in section 1144(c)(7)) in order to receive such coverage.
                            ``(C) The provision of such drugs shall be subject to the application of—
                               ``(i) the deductible under section 1833(b); and
                               ``(ii) the coinsurance amount applicable for such drugs (as determined under this part).
                            ``(D) If the individual is an inpatient of a hospital or other entity, the individual is entitled to receive coverage of such drugs under this part.
                         ``(2) Establishment of procedures in order to implement coverage.—The Secretary shall establish procedures for—
                            ``(A) identifying individuals that are entitled to coverage of immunosuppressive drugs by reason of section 226A(b)(2); and
                            ``(B) distinguishing such individuals from individuals that are enrolled under this part for the complete package of benefits under this part.´´.
                (C) Technical Amendment to Correct Duplicate Subsection Designation.—
                   Subsection (d) of section 226A of such Act (42 U.S.C. 426–1), as added by section 201(a)(3)(D)(ii) of the Social Security Independence and Program Improvements Act of 1994 (Public Law 103-296; 108 Stat. 1497), is redesignated as subsection (d).
          (2) Extension of Secondary Payer Requirements for ESRD Beneficiaries.—
             Section 1862(b)(1)(C) of such Act (42 U.S.C. 1395y(b)(1)(C)) is amended by adding at the end the following new sentence: ``With regard to immunosuppressive drugs furnished on or after the date of the enactment of the America’s Affordable Health Choices Act of 2009, this subparagraph shall be applied without regard to any time limitation.´´.
    (b) Medicare Coverage for ESRD Patients.—
       Section 1881 of such Act is further amended—
          (1) in subsection (b)(14)(B)(iii), by inserting ``, including oral drugs that are not the oral equivalent of an intravenous drug (such as oral phosphate binders and calcimimetics),´´ after ``other drugs and biologicals´´;
          (2) in subsection (b)(14)(E)(ii)—
                (A) in the first sentence—
                      (i) by striking ``a one-time election to be excluded from the phase-in´´ and inserting ``an election, with respect to 2011, 2012, or 2013, to be excluded from the phase-in (or the remainder of the phase-in)´´; and
                      (ii) by adding at the end the following: ``for such year and for each subsequent year during the phase-in described in clause (i)´´; and
                (B) in the second sentence—
                      (i) by striking ``January 1, 2011´´ and inserting ``the first date of such year´´; and
                      (ii) by inserting ``and at a time´´ after ``form and manner´´; and
          (3) in subsection (h)(4)(E), by striking ``lesser´´ and inserting ``greater´´.

### Sec. 1233. Advance Care Planning Consultation.

    (a) Medicare.—
          (1) In General.—
             Section 1861 of the Social Security Act (42 U.S.C. 1395x) is amended—
                (A) in subsection (s)(2)—
                      (i) by striking ``and´´ at the end of subparagraph (DD);
                      (ii) by adding ``and´´ at the end of subparagraph (EE); and
                      (iii) by adding at the end the following new subparagraph:
                         ``(FF) advance care planning consultation (as defined in subsection (hhh)(1));´´; and
                (B) by adding at the end the following new subsection:
``Advance Care Planning Consultation
                ``(hhh) (1) Subject to paragraphs (3) and (4), the term ‘advance care planning consultation’ means a consultation between the individual and a practitioner described in paragraph (2) regarding advance care planning, if, subject to paragraph (3), the individual involved has not had such a consultation within the last 5 years. Such consultation shall include the following:
                      ``(A) An explanation by the practitioner of advance care planning, including key questions and considerations, important steps, and suggested people to talk to.
                      ``(B) An explanation by the practitioner of advance directives, including living wills and durable powers of attorney, and their uses.
                      ``(C) An explanation by the practitioner of the role and responsibilities of a health care proxy.
                      ``(D) The provision by the practitioner of a list of national and State-specific resources to assist consumers and their families with advance care planning, including the national toll-free hotline, the advance care planning clearinghouses, and State legal service organizations (including those funded through the Older Americans Act of 1965).
                      ``(E) An explanation by the practitioner of the continuum of end-of-life services and supports available, including palliative care and hospice, and benefits for such services and supports that are available under this title.
                      ``(F)(i) Subject to clause (ii), an explanation of orders regarding life sustaining treatment or similar orders, which shall include—
                            ``(I) 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;
                            ``(II) the information needed for an individual or legal surrogate to make informed decisions regarding the completion of such an order; and
                            ``(III) 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).
                         ``(ii) The Secretary shall limit the requirement for explanations under clause (i) to consultations furnished in a State—
                            ``(I) in which all legal barriers have been addressed for enabling orders for life sustaining treatment to constitute a set of medical orders respected across all care settings; and
                            ``(II) that has in effect a program for orders for life sustaining treatment described in clause (iii).
                         ``(iii) A program for orders for life sustaining treatment for a States described in this clause is a program that—
                            ``(I) ensures such orders are standardized and uniquely identifiable throughout the State;
                            ``(II) distributes or makes accessible such orders to physicians and other health professionals that (acting within the scope of the professional’s authority under State law) may sign orders for life sustaining treatment;
                            ``(III) provides training for health care professionals across the continuum of care about the goals and use of orders for life sustaining treatment; and
                            ``(IV) is guided by a coalition of stakeholders includes representatives from emergency medical services, emergency department physicians or nurses, state long-term care association, state medical association, state surveyors, agency responsible for senior services, state department of health, state hospital association, home health association, state bar association, and state hospice association.
                   ``(2) A practitioner described in this paragraph is—
                      ``(A) a physician (as defined in subsection (r)(1)); and
                      ``(B) a nurse practitioner or physician’s assistant who has the authority under State law to sign orders for life sustaining treatments.
                   ``(3)(A) An initial preventive physical examination under subsection (WW), including any related discussion during such examination, shall not be considered an advance care planning consultation for purposes of applying the 5-year limitation under paragraph (1).
                      ``(B) An advance care planning consultation with respect to an individual may be conducted more frequently than provided under paragraph (1) if there is a significant change in the health condition of the individual, including diagnosis of a chronic, progressive, life-limiting disease, a life-threatening or terminal diagnosis or life-threatening injury, or upon admission to a skilled nursing facility, a long-term care facility (as defined by the Secretary), or a hospice program.
                   ``(4) A consultation under this subsection may include the formulation of an order regarding life sustaining treatment or a similar order.
                   ``(5)(A) For purposes of this section, the term ‘order regarding life sustaining treatment’ means, with respect to an individual, an actionable medical order relating to the treatment of that individual that—
                         ``(i) is signed and dated 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, including a nurse practitioner or physician assistant) and is in a form that permits it to stay with the individual and be followed by health care professionals and providers across the continuum of care;
                         ``(ii) effectively communicates the individual’s preferences regarding life sustaining treatment, including an indication of the treatment and care desired by the individual;
                         ``(iii) is uniquely identifiable and standardized within a given locality, region, or State (as identified by the Secretary); and
                         ``(iv) may incorporate any advance directive (as defined in section 1866(f)(3)) if executed by the individual.
                      ``(B) The level of treatment indicated under subparagraph (A)(ii) 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—
                         ``(i) the intensity of medical intervention if the patient is pulse less, apneic, or has serious cardiac or pulmonary problems;
                         ``(ii) the individual’s desire regarding transfer to a hospital or remaining at the current care setting;
                         ``(iii) the use of antibiotics; and
                         ``(iv) the use of artificially administered nutrition and hydration.´´.
          (2) Payment.—
             Section 1848(j)(3) of such Act (42 U.S.C. 1395w–4(j)(3)) is amended by inserting ``(2)(FF),´´ after ``(2)(EE),´´.
          (3) Frequency limitation.—
             Section 1862(a) of such Act (42 U.S.C. 1395y(a)) is amended—
                (A) in paragraph (1)—
                      (i) in subparagraph (N), by striking ``and´´ at the end;
                      (ii) in subparagraph (O) by striking the semicolon at the end and inserting ``, and´´; and
                      (iii) by adding at the end the following new subparagraph:
                         ``(P) in the case of advance care planning consultations (as defined in section 1861(hhh)(1)), which are performed more frequently than is covered under such section;´´; and
                (B) in paragraph (7), by striking ``or (K)´´ and inserting ``(K), or (P)´´.
          (4) Effective date.—
             The amendments made by this subsection shall apply to consultations furnished on or after January 1, 2011.
    (b) Expansion of physician quality reporting initiative for end of life care.—
          (1) Physician’s Quality Reporting Initiative.—
             Section 1848(k)(2) of the Social Security Act (42 U.S.C. 1395w–4(k)(2)) is amended by adding at the end the following new paragraphs:
                ``(3) Physician’s Quality Reporting Initiative.—
                   ``(A) In general.—For purposes of reporting data on quality measures for covered professional services furnished during 2011 and any subsequent year, to the extent that measures are available, the Secretary shall include quality measures on end of life care and advanced care planning that have been adopted or endorsed by a consensus-based organization, if appropriate. Such measures shall measure both the creation of and adherence to orders for life-sustaining treatment.
                   ``(B) Proposed set of measures.—The Secretary shall publish in the Federal Register proposed quality measures on end of life care and advanced care planning that the Secretary determines are described in subparagraph (A) and would be appropriate for eligible professionals to use to submit data to the Secretary. The Secretary shall provide for a period of public comment on such set of measures before finalizing such proposed measures.´´.
    (c) Inclusion of information in Medicare & You handbook.—
          (1) Medicare & You handbook.—
                (A) In general.—
                   Not later than 1 year after the date of the enactment of this Act, the Secretary of Health and Human Services shall update the online version of the Medicare & You Handbook to include the following:
                      (i) An explanation of advance care planning and advance directives, including—
                            (I) living wills;
                            (II) durable power of attorney;
                            (III) orders of life-sustaining treatment; and
                            (IV) health care proxies.
                      (ii) A description of Federal and State resources available to assist individuals and their families with advance care planning and advance directives, including—
                            (I) available State legal service organizations to assist individuals with advance care planning, including those organizations that receive funding pursuant to the Older Americans Act of 1965 (42 U.S.C. 93001 et seq.);
                            (II) website links or addresses for State-specific advance directive forms; and
                            (III) any additional information, as determined by the Secretary.
                (B) Update of paper and subsequent versions.—
                   The Secretary shall include the information described in subparagraph (A) in all paper and electronic versions of the Medicare & You Handbook that are published on or after the date that is 1 year after the date of the enactment of this Act.

### Sec. 1234. PART B Special Enrollment Period and Waiver of Limited Enrollment Penalty for TRICARE Beneficiaries.

    (a) PART B special enrollment period.—
          (1) In general.—
             Section 1837 of the Social Security Act (42 U.S.C. 1395p) is amended by adding at the end the following new subsection:
                ``(l)(1) In the case of any individual who is a covered beneficiary (as defined in section 1072(5) of title 10, United States Code) at the time the individual is entitled to hospital insurance benefits under part A under section 226(b) or section 226A and who is eligible to enroll but who has elected not to enroll (or to be deemed enrolled) during the individual’s initial enrollment period, there shall be a special enrollment period described in paragraph (2).
                   ``(2) The special enrollment period described in this paragraph, with respect to an individual, is the 12-month period beginning on the day after the last day of the initial enrollment period of the individual or, if later, the 12-month period beginning with the month the individual is notified of enrollment under this section.
                   ``(3) In the case of an individual who enrolls during the special enrollment period provided under paragraph (1), the coverage period under this part shall begin on the first day of the month in which the individual enrolls or, at the option of the individual, on the first day of the second month following the last month of the individual’s initial enrollment period.
                   ``(4) The Secretary of Defense shall establish a method for identifying individuals described in paragraph (1) and providing notice to them of their eligibility for enrollment during the special enrollment period described in paragraph (2).´´.
          (2) Effective date.—
             The amendment made by paragraph (1) shall apply to elections made on or after the date of the enactment of this Act.
    (b) Waiver of increase of premium.—
          (1) In general.—
             Section 1839(b) of the Social Security Act (42 U.S.C. 1395r(b)) is amended by striking ``section 1837(i)(4)´´ and inserting ``subsection (i)(4) or (l) of section 1837´´.
          (2) Effective date.—
                (A) In general.—
                   The amendment made by paragraph (1) shall apply with respect to elections made on or after the date of the enactment of this Act.
                (B) Rebates for certain disabled and ESRD beneficiaries.—
                      (i) In general.—
                         With respect to premiums for months on or after January 2005 and before the month of the enactment of this Act, no increase in the premium shall be effected for a month in the case of any individual who is a covered beneficiary (as defined in section 1072(5) of title 10, United States Code) at the time the individual is entitled to hospital insurance benefits under part A of title XVIII of the Social Security Act under section 226(b) or 226A of such Act, and who is eligible to enroll, but who has elected not to enroll (or to be deemed enrolled), during the individual’s initial enrollment period, and who enrolls under this part within the 12-month period that begins on the first day of the month after the month of notification of entitlement under this part.
                      (ii) Consultation with Department of Defense.—
                         The Secretary of Health and Human Services shall consult with the Secretary of Defense in identifying individuals described in this paragraph.
                      (iii) Rebates.—
                         The Secretary of Health and Human Services shall establish a method for providing rebates of premium increases paid for months on or after January 1, 2005, and before the month of the enactment of this Act for which a penalty was applied and collected.

### Sec. 1235. Exception for Use of More Recent Tax Year in Case of Gains from Sale of Primary Residence in Computing PART B Income-Related Premium.

    (a) In General.—
       Section 1839(i)(4)(C)(ii)(II) of the Social Security Act (42 U.S.C. 1395r(i)(4)(C)(ii)(II)) is amended by inserting ``sale of primary residence,´´ after ``divorce of such individual,´´.
    (b) Effective Date.—
       The amendment made by subsection (a) shall apply to premiums and payments for years beginning with 2011.

### Sec. 1236. Demonstration Program on Use of Patient Decisions Aids.

    (a) In General.—
       The Secretary of Health and Human Services shall establish a shared decision making demonstration program (in this subsection referred to as the ``program´´) under the Medicare program using patient decision aids to meet the objective of improving the understanding by Medicare beneficiaries of their medical treatment options, as compared to comparable Medicare beneficiaries who do not participate in a shared decision making process using patient decision aids.
    (b) Sites.—
          (1) Enrollment.—
             The Secretary shall enroll in the program not more than 30 eligible providers who have experience in implementing, and have invested in the necessary infrastructure to implement, shared decision making using patient decision aids.
          (2) Application.—
             An eligible provider seeking to participate in the program shall submit to the Secretary an application at such time and containing such information as the Secretary may require.
          (3) Preference.—
             In enrolling eligible providers in the program, the Secretary shall give preference to eligible providers that—
                (A) have documented experience in using patient decision aids for the conditions identified by the Secretary and in using shared decision making;
                (B) have the necessary information technology infrastructure to collect the information required by the Secretary for reporting purposes; and
                (C) are trained in how to use patient decision aids and shared decision making.
    (c) Follow-Up Counseling Visit.—
          (1) In General.—
             An eligible provider participating in the program shall routinely schedule Medicare beneficiaries for a counseling visit after the viewing of such a patient decision aid to answer any questions the beneficiary may have with respect to the medical care of the condition involved and to assist the beneficiary in thinking through how their preferences and concerns relate to their medical care.
          (2) Payment for Follow-Up Counseling Visit.—
             The Secretary shall establish procedures for making payments for such counseling visits provided to Medicare beneficiaries under the program. Such procedures shall provide for the establishment—
                (A) of a code (or codes) to represent such services; and
                (B) of a single payment amount for such service that includes the professional time of the health care provider and a portion of the reasonable costs of the infrastructure of the eligible provider such as would be made under the applicable payment systems to that provider for similar covered services.
    (d) Costs of Aids.—
       An eligible provider participating in the program shall be responsible for the costs of selecting, purchasing, and incorporating such patient decision aids into the provider’s practice, and reporting data on quality and outcome measures under the program.
    (e) Funding.—
       The Secretary shall provide for the transfer from the Federal Supplementary Medical Insurance Trust Fund established under section 1841 of the Social Security Act (42 U.S.C. 1395t) of such funds as are necessary for the costs of carrying out the program.
    (f) Waiver Authority.—
       The Secretary may waive such requirements of titles XI and XVIII of the Social Security Act (42 U.S.C. 1301 et seq. and 1395 et seq.) as may be necessary for the purpose of carrying out the program.
    (g) Report.—
       Not later than 12 months after the date of completion of the program, the Secretary shall submit to Congress a report on such program, together with recommendations for such legislation and administrative action as the Secretary determines to be appropriate. The final report shall include an evaluation of the impact of the use of the program on health quality, utilization of health care services, and on improving the quality of life of such beneficiaries.
    (h) Definitions.—
       In this section:
          (1) Eligible Provider.—
             The term ``eligible provider´´ means the following:
                (A) A primary care practice.
                (B) A specialty practice.
                (C) A multispecialty group practice.
                (D) A hospital.
                (E) A rural health clinic.
                (F) A federally qualified health center (as defined in section 1861(aa)(4) of the Social Security Act (42 U.S.C. 1395x(aa)(4)).
                (G) An integrated delivery system.
                (H) A State cooperative entity that includes the State government and at least one other health care provider which is set up for the purpose of testing shared decision making and patient decision aids.
          (2) Patient Decision Aid.—
             The term ``patient decision aid´´ means an educational tool (such as the Internet, a video, or a pamphlet) that helps patients (or, if appropriate, the family caregiver of the patient) understand and communicate their beliefs and preferences related to their treatment options, and to decide with their health care provider what treatments are best for them based on their treatment options, scientific evidence, circumstances, beliefs, and preferences.
          (3) Shared Decision Making.—
             The term ``shared decision making´´ means a collaborative process between patient and clinician that engages the patient in decision making, provides patients with information about trade-offs among treatment options, and facilitates the incorporation of patient preferences and values into the medical plan.