I 

111TH CONGRESS 

1ST SESSION H. R. 1898 

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. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 2, 2009 

Mr. BLUMENAUER (for himself, Mr. BOUSTANY, Mr. DAVIS of Kentucky, Mr. 

KIND, Mr. TIBERI, and Mr. YARMUTH) introduced the following bill; 

which was referred to the Committee on Energy and Commerce, and in 

addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such 

provisions as fall within the jurisdiction of the committee concerned 

A BILL 

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. 

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 ‘‘Life Sustaining Treat5 ment Preferences Act of 2009’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds as follows: 

3 (1) Serious illness, death, and dying are often 

4 difficult subjects to talk about for individuals, their 

5 families, and health care professionals. 

6 (2) Poor communication about preferences for 

7 care at the end of life can cause distress for both pa8 tients and their families. 

9 (3) As individuals approach the last chapter of 

10 their life, more can and should be done to educate 

11 them about treatment choices and help individuals 

12 communicate to health providers what care they 

13 want or do not want to receive. 

14 (4) A decade of research has demonstrated that 

15 orders for life sustaining treatment effectively convey 

16 treatment preferences, guiding medical personnel in 

17 providing or withholding interventions. 

18 (5) Orders for life sustaining treatment differ 

19 from advance directives. Advance directives (includ20 ing living wills and durable powers of attorney for 

21 health care) must be completed while individuals 

22 have the capacity to complete them and generally 

23 apply to future, hypothetical medical circumstances 

24 when decisionmaking capacity is lost. Patients’ val25 ues, goals, and preferences, as expressed in advance 

26 directives, require a thoughtful interpretive process 


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1 to apply to specific medical circumstances in real 

2 time. Yet, patients and proxy decisionmakers are 

3 often uncertain how to apply and implement pa4 tients’ values and goals in unfamiliar health care 

5 settings when real treatment plans and complicated 

6 decisions need to be made. 

7 (6) Orders for life sustaining treatment com8 plement advances directives by providing a process 

9 to focus patients’ values, goals, and preferences on 

10 current medical circumstances and to translate them 

11 into visible and portable medical orders applicable 

12 across care settings, including home, long-term care, 

13 emergency medical services, and hospitals. Without 

14 such medical orders emergency medical personnel 

15 may be required to provide treatments that may not 

16 be consistent with the individual’s preferences. Com17 pletion of such an order is equally valuable to pa18 tients who have not executed advance directives. 

19 (7) The following States have implemented or 

20 are developing orders for life sustaining treatment 

21 programs at the local or statewide level: Alaska, 

22 California, Colorado, Florida, Georgia, Hawaii, 

23 Idaho, Iowa, Kansas, Louisiana, Maine, Massachu24 setts, Michigan, Minnesota, Missouri, Montana, Ne25 braska, Nevada, New Hampshire, New York, North 


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1 Carolina, North Dakota, Ohio, Oregon, Pennsyl2 vania, Tennessee, Texas, Utah, Washington, West 

3 Virginia, Wisconsin and Wyoming. 

4 (8) Programs for orders for life sustaining 

5 treatment provide valuable services to individuals, 

6 their families, and health care providers through 

7 educational materials, professional training on ad8 vance care planning, coordinating and collaborating 

9 with hospitals, skilled nursing facilities, hospice pro10 grams, home health agencies, and emergency med11 ical services to implement such orders across the 

12 continuum of care, and monitoring the success of 

13 the program. 

14 (9) Medicare pays for acute care services pro15 vided to beneficiaries, but generally does not pay for 

16 informed discussions between beneficiaries and 

17 health providers to allow beneficiaries the oppor18 tunity to determine if they desire such acute care in 

19 the last months and years of life. 

20 SEC. 3. MEDICARE COVERAGE OF CONSULTATION REGARD21 ING ORDERS FOR LIFE SUSTAINING TREAT22 MENT. 

23 (a) IN GENERAL.—Section 1861 of the Social Secu24 rity Act (42 U.S.C. 1395x), as amended by sections 

25 101(a), 144(a), and 152(b) of the Medicare Improvements 


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1 for Patients and Providers Act of 2008 (Public Law 110– 

2 275), is amended— 

3 (1) in subsection (s)(2)— 

4 (A) by striking ‘‘and’’ at the end of sub5 paragraph (DD); 

6 (B) by adding ‘‘and’’ at the end of sub7 paragraph (EE); and 

8 (C) by adding at the end the following new 

9 subparagraph: 

10 ‘‘(FF) consultations regarding an order for 

11 life sustaining treatment (as defined in sub12 section (hhh)(1)) for qualified individuals (as 

13 defined in subsection (hhh)(3));’’; and 

14 (2) by adding at the end the following new sub15 section: 

16 ‘‘Consultation Regarding an Order for Life Sustaining 

17 Treatment 

18 ‘‘(hhh)(1) The term ‘consultation regarding an order 

19 for life sustaining treatment’ means, with respect to a 

20 qualified individual, consultations between the individual 

21 and the individual’s physician (as defined in subsection 

22 (r)(1)) (or other health care professional described in 

23 paragraph (2)(A)) and, to the extent applicable, registered 

24 nurses, nurse practitioners, physicians’ assistants, and so25 cial workers, regarding the establishment, implementation, 


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1 and changes in an order regarding life sustaining treat2 ment (as defined in paragraph (2)) for that individual. 

3 Such a consultation may include a consultation regard4 ing— 

5 ‘‘(A) the reasons why the development of 

6 such an order is beneficial to the individual and 

7 the individual’s family and the reasons why 

8 such an order should be updated periodically as 

9 the health of the individual changes; 

10 ‘‘(B) the information needed for an indi11 vidual or legal surrogate to make informed deci12 sions regarding the completion of such an 

13 order; and 

14 ‘‘(C) the identification of resources that an 

15 individual may use to determine the require16 ments of the State in which such individual re17 sides so that the treatment wishes of that indi18 vidual will be carried out if the individual is un19 able to communicate those wishes, including re20 quirements regarding the designation of a sur21 rogate decisionmaker (also known as a health 

22 care proxy). 

23 The Secretary may limit consultations regarding an 

24 order regarding life sustaining treatment to con25 sultations furnished in States, localities, or other geVerDate Nov 24 2008 04:21 Apr 07, 2009 Jkt 079200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1898.IH H1898

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1 ographic areas in which such orders have been wide2 ly adopted. 

3 ‘‘(2) The terms ‘order regarding life sustaining treat4 ment’ means, with respect to an individual, an actionable 

5 medical order relating to the treatment of that individual 

6 that— 

7 ‘‘(A) is signed and dated by a physician (as de8 fined in subsection (r)(1)) or another health care 

9 professional (as specified by the Secretary and who 

10 is acting within the scope of the professional’s au11 thority under State law in signing such an order) 

12 and is in a form that permits it to stay with the pa13 tient and be followed by health care professionals 

14 and providers across the continuum of care, includ15 ing home care, hospice, long-term care, community 

16 and assisted living residences, skilled nursing facili17 ties, inpatient rehabilitation facilities, hospitals, and 

18 emergency medical services; 

19 ‘‘(B) effectively communicates the individual’s 

20 preferences regarding life sustaining treatment, in21 cluding an indication of the treatment and care de22 sired by the individual; 

23 ‘‘(C) is uniquely identifiable and standardized 

24 within a given locality, region, or State (as identified 

25 by the Secretary); 


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1 ‘‘(D) is portable across care settings; and 

2 ‘‘(E) may incorporate any advance directive (as 

3 defined in section 1866(f)(3)) if executed by the in4 dividual. 

5 ‘‘(3) The term ‘qualified individual’ means an indi6 vidual who a physician (as defined in subsection (r)(1)) 

7 (or other health care professional described in paragraph 

8 (2)(A)) determines has a chronic, progressive illness and, 

9 as a consequence of such illness, is as likely as not to die 

10 within 1 year. 

11 ‘‘(4) The level of treatment indicated under para12 graph (2)(B) may range from an indication for full treat13 ment to an indication to limit some or all or specified 

14 interventions. Such indicated levels of treatment may in15 clude indications respecting, among other items— 

16 ‘‘(A) the intensity of medical intervention if the 

17 patient is pulseless, apneic, or, has serious cardiac 

18 or pulmonary problems; 

19 ‘‘(B) the individual’s desire regarding transfer 

20 to a hospital or remaining at the current care set21 ting; 

22 ‘‘(C) the use of antibiotics; and 

23 ‘‘(D) the use of artificially administered nutri24 tion and hydration.’’. 

25 (b) PAYMENT.— 


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1 (1) IN GENERAL.—Section 1848(j)(3) of such 

2 Act (42 U.S.C. 1395w–4(j)(3)), as amended by sec3 tions 144(a)(2) and 152(b)(1)(C) of the Medicare 

4 Improvements for Patients and Providers Act of 

5 2008 (Public Law 110–275), by inserting 

6 ‘‘(2)(FF),’’ after ‘‘(2)(EE),’’. 

7 (2) CONSTRUCTION.—Nothing in this section 

8 shall be construed as preventing the payment for a 

9 consultation regarding an order regarding life sus10 taining treatment to be made to multiple health care 

11 providers if they are providing such consultation as 

12 a team, so long as the total amount of payment is 

13 not increased by reason of the payment to multiple 

14 providers. 

15 (c) EFFECTIVE DATE.—The amendments made by 

16 this section shall apply to consultations furnished on or 

17 after January 1, 2010. 

18 SEC. 4. GRANTS FOR PROGRAMS FOR ORDERS REGARDING 

19 LIFE SUSTAINING TREATMENT. 

20 (a) IN GENERAL.—The Secretary of Health and 

21 Human Services shall make grants to eligible entities for 

22 the purpose of— 

23 (1) establishing new programs for orders re24 garding life sustaining treatment in States or local25 ities; 


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1 (2) expanding or enhancing an existing pro2 gram for orders regarding life sustaining treatment 

3 in States or localities; or 

4 (3) providing a clearinghouse of information on 

5 programs for orders for life sustaining treatment 

6 and consultative services for the development or en7 hancement of such programs. 

8 (b) AUTHORIZED ACTIVITIES.—Activities funded 

9 through a grant under this section for an area may in10 clude— 

11 (1) developing such a program for the area that 

12 includes home care, hospice, long-term care, commu13 nity and assisted living residences, skilled nursing 

14 facilities, inpatient rehabilitation facilities, hospitals, 

15 and emergency medical services within the area; 

16 (2) securing consultative services and advice 

17 from institutions with experience in developing and 

18 managing such programs; and 

19 (3) expanding an existing program for orders 

20 regarding life sustaining treatment to serve more pa21 tients or enhance the quality of services, including 

22 educational services for patients and patients’ fami23 lies or training of health care professionals. 

24 (c) DISTRIBUTION OF FUNDS.—In funding grants 

25 under this section, the Secretary shall ensure that, of the 


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1 funds appropriated to carry out this section for each fiscal 

2 year— 

3 (1) at least two-thirds are used for establishing 

4 or developing new programs for orders regarding life 

5 sustaining treatment; and 

6 (2) one-third is used for expanding or enhanc7 ing existing programs for orders regarding life sus8 taining treatment. 

9 (d) DEFINITIONS.—In this section: 

10 (1) The term ‘‘eligible entity’’ includes— 

11 (A) an academic medical center, a medical 

12 school, a State health department, a State med13 ical association, a multi-State taskforce, a hos14 pital, or a health system capable of admin15 istering a program for orders regarding life sus16 taining treatment for a State or locality; or 

17 (B) any other health care agency or entity 

18 as the Secretary determines appropriate. 

19 (2) The term ‘‘order regarding life sustaining 

20 treatment’’ has the meaning given such term in sec21 tion 1861(hhh)(2) of the Social Security Act, as 

22 added by section 3. 

23 (3) The term ‘‘program for orders regarding 

24 life sustaining treatment’’ means, with respect to an 


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1 area, a program that supports the active use of or2 ders regarding life sustaining treatment in the area. 

3 (4) The term ‘‘Secretary’’ means the Secretary 

4 of Health and Human Services. 

5 (e) AUTHORIZATION OF APPROPRIATIONS.—To carry 

6 out this section, there are authorized to be appropriated 

7 such sums as may be necessary for each of the fiscal years 

8 2009 through 2014. 

Æ 


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