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) 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Medicare Choices Em5 powerment and Protection Act’’. 


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1 SEC. 2. MEDICARE ADVANCE DIRECTIVE CERTIFICATION 

2 PROGRAM. 

3 Part B of title XVIII of the Social Security Act (42 

4 U.S.C. 1395 et seq.) is amended by adding at the end 

5 the following new section: 

6 ‘‘MEDICARE ADVANCE DIRECTIVE CERTIFICATION

7 PROGRAM

8 ‘‘SEC. 1849. (a) IN GENERAL.— 

9 ‘‘(1) ESTABLISHMENT OF PROGRAM.—The Sec10 retary shall establish and implement an Advance Di11 rective Certification Program (in this section re12 ferred to as the ‘Program’) under which the Sec13 retary shall encourage eligible beneficiaries to adopt 

14 and maintain certified advance directives to guide 

15 the delivery of health care to such beneficiaries. The 

16 Secretary shall implement the Program not later 

17 than 3 years after the date of enactment of this sec18 tion. 

19 ‘‘(2) DEFINITIONS.—In this section: 

20 ‘‘(A) CERTIFIED ADVANCE DIRECTIVE.— 

21 The term ‘certified advance directive’ means 

22 any electronically stored statement by an eligi23 ble beneficiary which— 

24 ‘‘(i) provides instructions that outline 

25 the kind of medical treatments and care 

26 that such beneficiary would want or not 


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1 want under particular conditions, and may 

2 also include the identification of a health 

3 care proxy or legal representative to make 

4 medical treatment decisions for the bene5 ficiary if the beneficiary becomes unable to 

6 make or communicate those decisions; 

7 ‘‘(ii) is executed in accordance with 

8 the law governing advance directives of the 

9 State involved; and 

10 ‘‘(iii) is offered by an entity that has 

11 received accreditation from the Secretary 

12 under this section. 

13 ‘‘(B) ELIGIBLE BENEFICIARY.—The term 

14 ‘eligible beneficiary’ means an individual en15 rolled under this part. 

16 ‘‘(3) VOLUNTARY.—Participation in the Pro17 gram shall be voluntary with respect to the eligible 

18 beneficiary and an eligible beneficiary who has reg19 istered a certified advance directive under the Pro20 gram may terminate such directive at any time. 

21 Nothing in this section shall require an eligible bene22 ficiary to adopt or maintain a certified advance di23 rective. 


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1 ‘‘(4) BEST PRACTICES.—In establishing and im2 plementing the Program, the Secretary shall con3 sider— 

4 ‘‘(A) best practices within existing advance 

5 directive registry technologies, programs, and 

6 systems, including web-based or cloud-based ad7 vance directive technologies— 

8 ‘‘(i) which may utilize time and date 

9 stamps, video, or other innovative meas10 ures to protect the authenticity, improve 

11 the quality, and enhance the security of 

12 such directives; and 

13 ‘‘(ii) which may utilize secure email 

14 and messaging technologies and nationally 

15 recognized health care information tech16 nology standards to improve the accessi17 bility and interoperability of such direc18 tives; and 

19 ‘‘(B) best practices for educating bene20 ficiaries on means for communicating bene21 ficiaries’ authenticated wishes to applicable 

22 family members, legal representatives, providers 

23 or health care proxies, including the use of 

24 email or other mail formats as well as access 


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1 through mobile devices (as defined by the Sec2 retary). 

3 ‘‘(5) ENROLLMENT AND DISENROLLMENT.— 

4 The Secretary shall establish procedures for eligible 

5 beneficiaries to enroll and disenroll under the Pro6 gram. Such procedures shall ensure that enrollment 

7 and disenrollment is available through an online 

8 process. The Secretary shall also establish proce9 dures to ensure Program participants can update or 

10 amend an advance directive in a timely and secure 

11 manner. 

12 ‘‘(6) STATE LAW.—This section shall in no way 

13 supercede, abrogate, or otherwise interfere with 

14 State law governing advance directives. Under the 

15 Program, the Secretary shall establish a process 

16 under which the Secretary is required to verify that 

17 digital advance directive vendors or other entities 

18 providing a digital advance directive participating in 

19 the program enable those using their services to 

20 complete advance directives that fully comply with 

21 the law governing advance directives of the State in22 volved. 

23 ‘‘(7) DISPLAY OF STATUTORY AND ALTER24 NATIVE ADVANCE DIRECTIVE FORMS.—Under the 

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1 ices shall provide, through a clearinghouse website, 

2 links to statutory and alternative advance directive 

3 forms and a State-by-State index to such forms to 

4 allow a beneficiary to create, adopt, modify, and ter5 minate an advance directive with any content per6 mitted or required, and in any form authorized by 

7 a State, in accordance with the requirements of sub8 paragraphs (C) through (E) of subsection (e)(1) and 

9 subsection (e)(2). 

10 ‘‘(8) ACCESS IN CASES OF DISPUTE OVER

11 TREATMENT.—Under the Program: 

12 ‘‘(A) SPECIAL ACCESS.—The Secretary 

13 shall establish a process whereby, with respect 

14 to a beneficiary with a certified advance direc15 tive, a person described in subparagraph (B) 

16 may obtain access to the beneficiary’s advance 

17 directive for the purposes of viewing and shar18 ing such advance directive when— 

19 ‘‘(i) the provisions of the advance di20 rective have come into force under the ap21 plicable State’s law because the beneficiary 

22 has become incapable of making health 

23 care decisions or under other cir24 cumstances provided under State law; and 


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1 ‘‘(ii) at least one person described in 

2 subparagraph (B) is questioning or dis3 puting the provision, withholding, or with4 drawal of medical treatment, food, or 

5 fluids with respect to the beneficiary. 

6 ‘‘(B) INTERESTED INDIVIDUALS.—A per7 son described in this subparagraph, with re8 spect to a beneficiary, is— 

9 ‘‘(i) any individual who is a member 

10 of any class of persons who, under the ap11 plicable State’s law, would potentially be 

12 eligible to serve as a health care decision 

13 maker for the beneficiary if an advance di14 rective had not been executed regardless of 

15 whether higher priority for such eligibility 

16 would be accorded to another individual or 

17 individuals; and 

18 ‘‘(ii) if the applicable State’s law does 

19 not designate persons or classes of persons 

20 described in clause (i), any person related 

21 within the third degree of consanguinity or 

22 affinity to the beneficiary. 

23 ‘‘(b) REGISTRATION.— 

24 ‘‘(1) IN GENERAL.—The Secretary shall estab25 lish procedures for an eligible beneficiary to register 


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1 such beneficiary’s adoption of a certified advance di2 rective under the Program. Such procedures shall 

3 ensure that registration is available through an on4 line process. The Secretary shall also establish pro5 cedures to ensure Program participants can update 

6 previously registered information that is no longer 

7 accurate and indicate that an advance directive has 

8 been terminated. 

9 ‘‘(2) REQUIRED INFORMATION.—In addition to 

10 such other information as the Secretary may deem 

11 appropriate, an eligible beneficiary seeking to reg12 ister a certified advance directive under the Program 

13 shall indicate where the advance directive is main14 tained or how it may be accessed. 

15 ‘‘(3) REGISTRATION PERIODS.—The procedures 

16 established under paragraph (1) shall provide that 

17 registration under the Program shall occur during— 

18 ‘‘(A) an eligible beneficiary’s initial enroll19 ment under an MA plan under part C as de20 scribed in paragraph (1) of section 1851(e); 

21 and 

22 ‘‘(B) the annual, coordinated election pe23 riod under paragraph (3) of such section. 

24 ‘‘(4) PRIVACY AND SECURITY.— 


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1 ‘‘(A) IN GENERAL.—The Secretary shall 

2 ensure that all aspects of the registration sys3 tem comply with the Federal regulations (con4 cerning the privacy of individually identifiable 

5 health information) promulgated under section 

6 264(c) of the Health Insurance Portability and 

7 Accountability Act of 1996 subject to the access 

8 authorized under subsection (a)(8), in accord9 ance with subsection (c)(2)(E). 

10 ‘‘(B) ACCESS.—The Secretary shall utilize 

11 standardized data protections and privacy 

12 standards, including the Federal regulations de13 scribed in paragraph (1), to ensure that the 

14 registration record of an eligible beneficiary can 

15 only be accessed by— 

16 ‘‘(i) the beneficiary, through the proc17 ess established under paragraph (1); 

18 ‘‘(ii) those authorized to access the 

19 advance directive under subsection (a)(8) 

20 and subsection (c)(2)(E); and 

21 ‘‘(iii) providers of services and sup22 pliers participating under this title, 

23 through a process established by the Sec24 retary. 

25 ‘‘(c) ACCREDITATION.— 


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1 ‘‘(1) IN GENERAL.—Under the Program, the 

2 Secretary shall— 

3 ‘‘(A) grant accreditation to advance direc4 tive vendors and other entities providing ad5 vance directives that meet the accreditation cri6 teria established under paragraph (2); and 

7 ‘‘(B) establish a process whereby advance 

8 directive vendors and other entities providing 

9 advance directives may obtain accreditation 

10 under this subsection. 

11 ‘‘(2) ACCREDITATION CRITERIA.—The Sec12 retary, in consultation with the General Accounting 

13 Office, shall establish accreditation criteria for ad14 vance directive vendors and other entities providing 

15 advance directives that seek to offer advance direc16 tives to be certified under the Program. Such cri17 teria shall consist of the following: 

18 ‘‘(A) PROCESS FOR ADOPTING ADVANCE

19 DIRECTIVE.—The advance directive vendor or 

20 other entity providing an advance directive shall 

21 allow a beneficiary to create, adopt, modify, and 

22 terminate an advance directive through an on23 line process. 

24 ‘‘(B) VENDORS.—The advance directive 

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1 rective shall comply with an annual quality re2 view to be conducted by the Secretary. 

3 ‘‘(C) USE OF STATUTORY AND ALTER4 NATIVE ADVANCE DIRECTIVE FORMS.—The ad5 vance directive vendor or other entity providing 

6 an advance directive shall enable a beneficiary 

7 to access, complete, modify, and adopt any ad8 vance directive applicable to the State indicated 

9 by the beneficiary who is posted as provided 

10 under subparagraphs (C) through (E) of sub11 section (e)(1) and of subsection (e)(2). 

12 ‘‘(D) ACCESS.—The advance directive ven13 dor or other entity providing an advance direc14 tive shall maintain advance directives in such a 

15 way that— 

16 ‘‘(i) an eligible beneficiary who has 

17 adopted an advance directive with such 

18 vendor or entity and any family member, 

19 legal representative, or health care proxy 

20 legally designated by such beneficiary has 

21 direct, has near real-time online access to 

22 the beneficiary’s advance directive for pur23 poses of viewing and sharing such advance 

24 directive, including communication of the 

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1 ficiary’s wishes using nationally recognized 

2 health care information technology data 

3 content and data transport standards spec4 ified by the Secretary; 

5 ‘‘(ii) in the case of an eligible bene6 ficiary who has adopted an advance direc7 tive with such vendor or entity or any fam8 ily member, legal representative, or health 

9 care proxy legally designated by such bene10 ficiary who is unable or unwilling to use 

11 the online access under subparagraph (A), 

12 such individual is able to obtain a hard 

13 copy of the beneficiary’s advance directive 

14 for the purposes of viewing and sharing 

15 such advance directive; and 

16 ‘‘(iii) providers of services and sup17 pliers participating under this title have 

18 near real-time online access to the advance 

19 directive of an eligible beneficiary who has 

20 adopted an advance directive with such 

21 vendor or entity, including communication 

22 of the advance directive and corresponding 

23 beneficiary’s wishes through secure email 

24 and messaging technologies and nationally 

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1 nology standards specified by the Secretary 

2 to improve the accessibility and interoper3 ability of such directives. 

4 ‘‘(E) PRIVACY PROTECTIONS.— 

5 ‘‘(i) IN GENERAL.—The advance di6 rective vendor or other entity providing an 

7 advance directive shall comply with the 

8 Federal regulations (concerning the privacy 

9 of individually identifiable health informa10 tion) promulgated under section 264(c) of 

11 the Health Insurance Portability and Ac12 countability Act of 1996 (42 U.S.C. 

13 1320d–2 note), subject to the access au14 thorized under subparagraph (D) and sub15 section (a)(8). 

16 ‘‘(ii) ACCESS.—Such vendor or entity 

17 shall utilize standardized data protections 

18 and privacy standards, including the Fed19 eral regulations described in clause (i), to 

20 ensure that the content of an eligible bene21 ficiary’s advance directive is owned and 

22 maintained by the beneficiary and can only 

23 be accessed by those authorized to access 

24 the advance directive under subparagraph 

25 (D) and subsection (a)(8). 


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1 ‘‘(F) SECURITY AND TESTING.—The ad2 vance directive vendor or other entity providing 

3 an advance directive shall certify that— 

4 ‘‘(i) all data management and data 

5 transfer elements involved in adopting, 

6 maintaining, and accessing the advance di7 rective have successfully passed rigorous 

8 independent testing regarding standards of 

9 timeliness, accuracy, and efficiency; 

10 ‘‘(ii) the data management and data 

11 transfer elements involved in adopting, 

12 maintaining, and accessing the advance di13 rective meet widely accepted industry secu14 rity standards; and 

15 ‘‘(iii) the system that provides access 

16 to the advance directive has passed real17 time tests simulating a realistic volume of 

18 beneficiaries and providers accessing ad19 vance directives simultaneously. 

20 ‘‘(G) CERTIFIED ADVANCE DIRECTIVES.— 

21 The advance directive vendor or other entity 

22 providing an advance directive shall agree to 

23 offer certified advance directives (as defined in 

24 subsection (a)(2)(A)). 

25 ‘‘(H) BENEFICIARY SURVEYS.— 


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1 ‘‘(i) IN GENERAL.—The advance di2 rective vendor or other entity providing an 

3 advance directive shall agree to administer 

4 annual beneficiary surveys on the informa5 tion described in clause (ii) and submit the 

6 results of such surveys to the Centers for 

7 Medicare & Medicaid Services. 

8 ‘‘(ii) INFORMATION.—The information 

9 described in this clause, with respect to an 

10 annual beneficiary survey and certified ad11 vance directive of a beneficiary, is the fol12 lowing: 

13 ‘‘(I) Whether the beneficiary had 

14 to pay any third party for the cre15 ation, storage, or retrieval of the cer16 tified advance directive. 

17 ‘‘(II) Whether the beneficiary 

18 had a health care encounter or emer19 gency that required the location, ac20 cess, retrieval, or consultation of the 

21 certified advance directive and if so, 

22 whether the certified advance directive 

23 was accessible in online and in near 

24 real-time, as required under this sec25 tion. 


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1 ‘‘(III) Whether the certified ad2 vance directive was actionable. 

3 ‘‘(IV) Whether medical personnel 

4 followed the certified advance direc5 tive. 

6 ‘‘(d) INCENTIVE.— 

7 ‘‘(1) IN GENERAL.—The Secretary shall make a 

8 one-time payment of the amount specified in para9 graph (2) to each eligible beneficiary who adopts a 

10 certified advance directive and registers such direc11 tive with the Program. 

12 ‘‘(2) AMOUNT.— 

13 ‘‘(A) IN GENERAL.—For purposes of para14 graph (1), the amount specified in this para15 graph is— 

16 ‘‘(i) for a beneficiary who registers a 

17 certified advance directive with the Pro18 gram in 2019, $75; or 

19 ‘‘(ii) for a beneficiary who registers a 

20 certified advance directive with the Pro21 gram in a subsequent year, the amount 

22 specified in this paragraph for the pre23 ceding year increased by the percentage in24 crease in the Chained Consumer Price 

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1 lished by the Bureau of Labor Statistics of 

2 the Department of Labor) over the pre3 ceding year. 

4 ‘‘(B) ROUNDING.—If any amount deter5 mined under subparagraph (A) is not a multiple 

6 of 10 cents, such amount shall be rounded to 

7 the nearest multiple of 10 cents. 

8 ‘‘(3) FUNDING.—For purposes of carrying out 

9 this subsection, the Secretary shall provide for the 

10 transfer, from the Federal Supplementary Medical 

11 Insurance Trust Fund under section 1841, of such 

12 sums as the Secretary determines necessary. 

13 ‘‘(4) ADMINISTRATION.—The Secretary shall, 

14 through a full notice and comment rulemaking proc15 ess, establish procedures for— 

16 ‘‘(A) making the incentive payment di17 rectly to the eligible beneficiary or a personal 

18 account maintained by the beneficiary at a fi19 nancial institution that has been designated by 

20 the beneficiary, and ensuring that no other enti21 ty receives the payment on the beneficiary’s be22 half; and 

23 ‘‘(B) ensuring that a beneficiary does not 

24 receive an incentive payment under this section 

25 more than once. 


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1 ‘‘(e) EDUCATION AND OUTREACH.— 

2 ‘‘(1) IN GENERAL.—The Secretary shall provide 

3 for— 

4 ‘‘(A) the inclusion of the statement set 

5 forth in paragraph (3) in the Medicare and You 

6 handbook under section 1804 and on a clear7 inghouse website linked to the Internet website 

8 of the Centers for Medicare & Medicaid Serv9 ices; 

10 ‘‘(B) the promotion of the benefits of elec11 tronic advance directives services, as they be12 come available, through the use of mass com13 munications and other means; 

14 ‘‘(C) the inclusion, under the heading 

15 ‘Statutory Advance Directive Forms’, of any 

16 relevant forms, whether mandatory or optional, 

17 specified in the statues or regulations of the 

18 States to be displayed on a clearinghouse 

19 website; 

20 ‘‘(D) the inclusion, under the heading ‘Al21 ternative Advance Directive Forms’, on a sepa22 rate clearinghouse website, and in accordance 

23 with paragraph (2)— 

24 ‘‘(i) of other advance directive forms 

25 submitted to the Secretary by individuals 


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1 and groups in an electronic format speci2 fied by the Secretary for which the submit3 ting entity includes, for each form sub4 mitted, an opinion by an attorney licensed 

5 to practice in the relevant State dem6 onstrating that the submitted form com7 plies with the law of that State; and 

8 ‘‘(ii) of the following disclaimer, which 

9 shall be prominently posted on the website: 

10 ‘This website includes for your consider11 ation alternative advance directive forms 

12 submitted by individuals or groups reflect13 ing different perspectives on advance 

14 health care decisions which you may wish 

15 to review before completing your own ad16 vance directive.’; and 

17 ‘‘(E) the inclusion of a user-friendly index 

18 on the clearinghouse website by State and, in 

19 the case of the ‘Alternative Advance Directive 

20 Forms’, by the name of the provider, so that a 

21 user may readily access those statutory and al22 ternative forms. 

23 ‘‘(2) ALTERNATIVE ADVANCE DIRECTIVE

24 FORMS.— 


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1 ‘‘(A) IN GENERAL.—For purposes of para2 graph (1)(D), the following shall apply: 

3 ‘‘(i) Not later than 60 days after re4 ceiving an advance directive form sub5 mitted under such paragraph, the Sec6 retary shall either post the submitted form 

7 on a clearinghouse website or provide to 

8 the submitting entity a detailed expla9 nation of the basis for the Secretary’s de10 termination that the submitted form does 

11 not comply with relevant State or Federal 

12 law, which determination shall be subject 

13 to judicial review under section 702 of title 

14 5 of the United States Code; and 

15 ‘‘(ii) the Secretary shall either remove 

16 or refuse to post any submitted form if 

17 provided with an official determination by 

18 the Attorney General of the applicable 

19 State that the form is not in compliance 

20 with State law, subject to applicable State 

21 law described in subparagraph (B). 

22 ‘‘(B) STATE LAW DESCRIBED.—For pur23 poses of subparagraph (A), State law described 

24 in this subparagraph is— 


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1 ‘‘(i) a ruling by a court of the applica2 ble State, or by a Federal court applying 

3 that State’s law, subject to subsequent rul4 ings by a court or courts with authority to 

5 supercede that ruling; or 

6 ‘‘(ii) a statute or regulation of the ap7 plicable State that provides for a specific 

8 procedure for officially determining wheth9 er particular advance directive forms com10 ply with State law. 

11 ‘‘(3) STATEMENT.—For purposes of paragraph 

12 (1)(A), the statement included in this paragraph is 

13 the following statement, with appropriate insertions 

14 in the bracketed segments updated at least annually: 

15 ‘‘WHY YOU MAY WANT TO CONSIDER AN ‘AD16 VANCE DIRECTIVE’ Do you ever worry what would 

17 happen if you became unable to make health care decisions 

18 for yourself because of an illness or injury? Do you hold 

19 certain values and beliefs with respect to your medical 

20 treatment that you would want to be upheld if you were 

21 unable to convey them yourself? That’s what an ‘advance 

22 directive’ is for. You can use it to give directions for your 

23 health care providers and family about your health care 

24 wishes that are to be followed if you are no longer able 

25 to speak for yourself. You can also name someone you 


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1 trust, like a family member or friend, to give health care 

2 directions for you when you can’t do so yourself. 

3 ‘‘You should consider carefully who to choose to 

4 speak for you and what directions you want to give to en5 sure your representative clearly reflects your own values 

6 and treatment preferences. You should not feel pressured 

7 to violate your own values and preferences, and you are 

8 entitled to implement them without discrimination based 

9 on age or degree of disability. 

10 ‘‘There are many resources to help you. 

11 ‘‘By choosing the name of a State at [INSERT name 

12 of webpage for the index provided in paragraph (1)(E) of 

13 this subsection and its URL (and, on the clearinghouse 

14 website, include a hyperlink to it)], you can find sample 

15 advance directives for that State. You can see any sample 

16 or required forms given in State law, as well as others 

17 from individuals or groups with different viewpoints on ad18 vance health care decisions which you may wish to review 

19 before completing your own advance directive. 

20 ‘‘Below is contact information for the accredited ven21 dor in your State who will arrange for your advance direc22 tive to be confidentially kept online, where it can be seen 

23 by doctors who are treating you so they are made aware 

24 of your wishes. You can also give permission to certain 

25 other people, like family members or friends, you want to 


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1 be able to get a copy of your advance directive. If a dis2 agreement about your treatment develops, depending on 

3 your State’s law certain other people may also be allowed 

4 to see it. 

5 ‘‘This vendor can also help you create an advance di6 rective online or with paper documents, if you wish. Online 

7 directives allow you to change or cancel one that no longer 

8 fits with your wishes in a more timely manner. 

9 ‘‘[INSERT, name and contact information for cur10 rently accredited advance directive vendor (and, on the 

11 clearinghouse website, hyperlinks to their website).] 

12 ‘‘Although any adult who is capable of doing so can 

13 use these resources to complete an advance directive at 

14 any time, Medicare beneficiaries are particularly encour15 aged to do so when enrolling in Medicare or during the 

16 annual enrollment period when you can choose among dif17 ferent Medicare health insurance alternatives. 

18 ‘‘In addition, some Medicare Advantage plans or sup19 plemental insurance plans may offer a financial incentive 

20 or other additional benefits for creating an advance direc21 tive online. 

22 ‘‘By completing an advance directive you can not only 

23 make it more likely that your wishes about health care 

24 will be known if you are unable to tell them at the time, 

25 but also spare family, friends, and doctors the difficulty 


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1 of trying to figure out what you would have wanted. These 

2 are matters of the highest importance that can affect life3 or-death decisions, as well as your future comfort and 

4 well-being. You are encouraged to think about them care5 fully, and give serious consideration to recording your 

6 wishes in an advance directive.’’. 

Æ 


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