I 

111TH CONGRESS 

2D SESSION H. R. 5795 

To amend the Social Security Act to provide for coverage of voluntary advance 

care planning consultation under Medicare and Medicaid, and for other 

purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 20, 2010 

Mr. BLUMENAUER (for himself, Ms. BALDWIN, Mrs. CAPPS, Mr. HOLT, Mr. 

KIND, Ms. LINDA T. SA ́NCHEZ of California, Ms. SCHAKOWSKY, and Mr. 

WU) 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 the Social Security Act to provide for coverage 

of voluntary advance care planning consultation under 

Medicare and Medicaid, and for other purposes. 

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; FINDINGS; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Personalize Your Care Act of 2010’’. 

6 (b) FINDINGS.—Congress finds the following: 

mstockstill on DSKH9S0YB1PROD with BILLS

2 

•HR 5795 IH

1 (1) All individuals should be afforded the oppor2 tunity to fully participate in decisions related to 

3 their health care or the care of a person for whom 

4 they are the proxy or surrogate. 

5 (2) Every individual’s values and goals should 

6 be identified, understood, and respected. Particular 

7 attention should be paid to populations which have 

8 not regularly had the opportunity to express their 

9 choices or preferences. 

10 (3) Advance care planning plays a valuable role 

11 in achieving quality care by informing physicians 

12 and family members of an individual’s treatment 

13 preferences should he or she become unable to direct 

14 care. 

15 (4) Early advance care planning is ideal be16 cause a person’s ability to make decisions may di17 minish over time and the person may suddenly lose 

18 the capability to participate in their health care deci19 sions. 

20 (5) Advance directives (such as living wills and 

21 durable powers of attorney for health care) must be 

22 prepared while individuals have the capacity to com23 plete them and only apply to future medical cir24 cumstances when decisionmaking capacity is lost. An 

mstockstill on DSKH9S0YB1PROD with BILLS

3 

•HR 5795 IH

1 individual can change or revoke an advance directive 

2 at any time. 

3 (6) Physician orders for life-sustaining treat4 ment complement advance directives by providing a 

5 process to focus patients’ values, goals, and pref6 erences on current medical circumstances and to 

7 translate them into visible and portable medical or8 ders applicable across care settings. A patient (or 

9 proxy or surrogate) can change or revoke a physi10 cian order for life-sustaining treatment at any time. 

11 (7) Advance care planning should be routinely 

12 conducted in community and clinical practices. Care 

13 plans should be periodically revisited to reflect a per14 son’s changes in values and perceptions at different 

15 stages and circumstances of life. This shared deci16 sionmaking and collaborative planning between the 

17 patient (or proxy or surrogate) and the clinician of 

18 their choice will lead to more person-centered, cul19 turally appropriate care. 

20 (8) Effective, respectful, and culturally com21 petent advance care planning requires recognition 

22 that both overtreatment and undertreatment may be 

23 concerns of individuals contemplating future care. 

24 (9) More should be done within local health sys25 tems to establish specific policies and programs to 

mstockstill on DSKH9S0YB1PROD with BILLS

4 

•HR 5795 IH

1 assist people with sensory, mental, and other disabil2 ities in order to maximize the degree to which they 

3 are active participants in the decisions related to 

4 their health care, including training health care pro5 viders to be aware of augmentative communication 

6 devices and how to communicate with people with 

7 developmental, psychiatric, speech, and sensory dis8 abilities. 

9 (10) Studies funded by the Agency for 

10 Healthcare Research and Quality have shown that 

11 individuals who talked with their families or physi12 cians about their preferences for care had less fear 

13 and anxiety, felt they had more ability to influence 

14 and direct their medical care, believed that their 

15 physicians had a better understanding of their wish16 es, and indicated a greater understanding and com17 fort level than they had before the discussion. Pa18 tients who had advance planning discussions with 

19 their physicians continued to discuss and talk about 

20 these concerns with their families. Such discussions 

21 enabled patients and families to reconcile any dif22 ferences about care and could help the family and 

23 physician come to agreement if they should need to 

24 make decisions for the patient. 

mstockstill on DSKH9S0YB1PROD with BILLS

5 

•HR 5795 IH

1 (11) A decade of research has demonstrated 

2 that physician orders for life-sustaining treatment 

3 effectively convey patient preferences and guide med4 ical personnel toward medical treatment aligned with 

5 patient wishes. Programs for these orders have de6 veloped locally on a statewide or communitywide 

7 basis and have different program names, forms, and 

8 policies, but all follow the principle of patient-cen9 tered care. 

10 (12) According to research published in the Ar11 chives of Internal Medicine, between 65 and 76 per12 cent of physicians whose patients had an advance di13 rective were not aware that it existed. 

14 (13) Including completed advance care planning 

15 documents within a patient’s electronic health record 

16 can increase the likelihood these documents are kept 

17 up-to-date and available at the right place at the 

18 right time. 

19 (c) TABLE OF CONTENTS.—The table of contents of 

20 this Act is as follows: 

Sec. 1. Short title; findings; table of contents. 

Sec. 2. Voluntary advance care planning consultation coverage under Medicare 

and Medicaid. 

Sec. 3. Grants for programs for physician orders for life-sustaining treatment. 

Sec. 4. Advance care planning standards for electronic health records. 

Sec. 5. Portability of advance directives. 

mstockstill on DSKH9S0YB1PROD with BILLS

6 

•HR 5795 IH

1 SEC. 2. VOLUNTARY ADVANCE CARE PLANNING CONSULTA2 TION COVERAGE UNDER MEDICARE AND 

3 MEDICAID. 

4 (a) MEDICARE.— 

5 (1) IN GENERAL.—Section 1861 of the Social 

6 Security Act (42 U.S.C. 1395x), as amended by sec7 tion 4103 of the Patient Protection and Affordable 

8 Care Act (Public Law 111–148, in this section re9 ferred to as ‘‘PPACA’’), is amended— 

10 (A) in subsection (s)(2)— 

11 (i) by striking ‘‘and’’ at the end of 

12 subparagraph (EE); 

13 (ii) by adding ‘‘and’’ at the end of 

14 subparagraph (FF); and 

15 (iii) by adding at the end the fol16 lowing new subparagraph: 

17 ‘‘(GG) voluntary advance care planning 

18 consultation (as defined in subsection (iii)(1));’’; 

19 and 

20 (B) by adding at the end the following new 

21 subsection: 

22 ‘‘Voluntary Advance Care Planning Consultation 

23 ‘‘(iii)(1) Subject to paragraphs (3) and (4), the term 

24 ‘voluntary advance care planning consultation’ means an 

25 optional consultation between the individual and a practi26 tioner described in paragraph (2) regarding advance care 

mstockstill on DSKH9S0YB1PROD with BILLS

7 

•HR 5795 IH

1 planning. Such consultation may include the following, as 

2 specified by the Secretary: 

3 ‘‘(A) An explanation by the practitioner of ad4 vance care planning and the uses of advance direc5 tives. 

6 ‘‘(B) An explanation by the practitioner of the 

7 role and responsibilities of a proxy or surrogate. 

8 ‘‘(C) An explanation by the practitioner of the 

9 services and supports available under this title dur10 ing chronic and serious illness, including palliative 

11 care, home care, long-term care, and hospice care. 

12 ‘‘(D) An explanation by the practitioner of phy13 sician orders for life-sustaining treatment or similar 

14 orders in States where such orders or similar orders 

15 exist. 

16 ‘‘(E) Facilitation by the practitioner of shared 

17 decisionmaking with the patient (or proxy or surro18 gate) which may include— 

19 ‘‘(i) use of decision aids and patient sup20 port tools; 

21 ‘‘(ii) the provision of patient-centered, 

22 easy-to-understand information about advance 

23 care planning or disease-specific care planning; 

24 and 

mstockstill on DSKH9S0YB1PROD with BILLS

8 

•HR 5795 IH

1 ‘‘(iii) the incorporation of patient pref2 erences and values into the medical plan, an ad3 vance directive, and a physician order for life4 sustaining treatment as appropriate. 

5 ‘‘(2) A practitioner described in this paragraph is a 

6 physician (as defined in subsection (r)(1)), nurse practi7 tioner, or physician assistant. 

8 ‘‘(3) Payment may not be made under this title for 

9 a voluntary advance care planning consultation furnished 

10 more often than once every 5 years unless there is a sig11 nificant change in the health, health-related condition, or 

12 care setting of the individual. 

13 ‘‘(4) For purposes of this section, the term ‘physician 

14 order for life-sustaining treatment’ means, with respect to 

15 an individual, an actionable medical order relating to the 

16 treatment of that individual that effectively communicates 

17 the individual’s preferences regarding life-sustaining treat18 ment, is in a form that is sanctioned or approved under 

19 State law or regulation or is widely recognized by health 

20 care providers in the State, and permits it to be followed 

21 by health care professionals across the continuum of care. 

22 Such an order may be changed or revoked by the indi23 vidual (or proxy or surrogate) at any time.’’. 

24 (2) CONSTRUCTION.—The voluntary advance 

25 care planning consultation described in section 

mstockstill on DSKH9S0YB1PROD with BILLS

9 

•HR 5795 IH

1 1861(iii) of the Social Security Act, as added by 

2 paragraph (1), shall be completely optional. Nothing 

3 in this section shall— 

4 (A) require an individual to complete an 

5 advance directive or a physician order for life6 sustaining treatment; 

7 (B) require an individual to consent to re8 strictions on the amount, duration, or scope of 

9 medical benefits an individual is entitled to re10 ceive under this title; or 

11 (C) violate the Assisted Suicide Funding 

12 Restriction Act of 1997 (Public Law 105–12) 

13 by encouraging the promotion of suicide or as14 sisted suicide. 

15 (3) PAYMENT.—Section 1848(j)(3) of such Act 

16 (42 U.S.C. 1395w–4(j)(3)), as amended by section 

17 4103(c)(2) of PPACA, is amended by inserting 

18 ‘‘(2)(GG),’’ after ‘‘(2)(FF),’’. 

19 (4) FREQUENCY LIMITATION.—Section 1862(a) 

20 of such Act (42 U.S.C. 1395y(a)), as amended by 

21 section 4103(d) of PPACA, is amended— 

22 (A) in paragraph (1)— 

23 (i) in subparagraph (O), by striking 

24 ‘‘and’’ at the end; 

mstockstill on DSKH9S0YB1PROD with BILLS

10 

•HR 5795 IH

1 (ii) in subparagraph (P) by striking 

2 the semicolon at the end and inserting ‘‘, 

3 and’’; and 

4 (iii) by adding at the end the fol5 lowing new subparagraph: 

6 ‘‘(Q) in the case of voluntary advance care 

7 planning consultations (as defined in paragraph 

8 (1) of section 1861(iii)), which are performed 

9 more frequently than is covered under such sec10 tion;’’; and 

11 (B) in paragraph (7), by striking ‘‘or (P)’’ 

12 and inserting ‘‘(P), or (Q)’’. 

13 (5) EFFECTIVE DATE.—The amendments made 

14 by this subsection shall apply to consultations fur15 nished on or after January 1, 2011. 

16 (b) MEDICAID.— 

17 (1) MANDATORY BENEFIT.—Section 

18 1902(a)(10)(A) of the Social Security Act (42 

19 U.S.C. 1396a(a)(10)(A)), as amended by section 

20 2301(b) of PPACA, is amended, in the matter pre21 ceding clause (i), by striking ‘‘and (28)’’ and insert22 ing ‘‘, (28), and (29)’’. 

23 (2) MEDICAL ASSISTANCE.—Section 1905(a) of 

24 such Act (42 U.S.C. 1396d(a)), as amended by sec25 tion 2301(a) of PPACA, is amended— 

mstockstill on DSKH9S0YB1PROD with BILLS

11 

•HR 5795 IH

1 (A) by striking ‘‘and’’ at the end of para2 graph (28); 

3 (B) by redesignating paragraph (29) as 

4 paragraph (30); and 

5 (C) by inserting after paragraph (28) the 

6 following new paragraph: 

7 ‘‘(29) voluntary advance care planning con8 sultation (as defined in section 1861(iii)(1)); and’’. 

9 (c) DEFINITION OF ADVANCE DIRECTIVE UNDER

10 MEDICARE AND MEDICAID.— 

11 (1) MEDICARE.—Section 1866(f)(3) of the So12 cial Security Act (42 U.S.C. 1395cc(f)(3)) is amend13 ed by striking ‘‘means’’ and all that follows and in14 serting the following: ‘‘means a living will, medical 

15 directive, health care power of attorney, durable 

16 power of attorney for health care, advance health 

17 care directive, health care directive, or other state18 ment that is recorded and completed in a manner 

19 recognized under State law by an individual with ca20 pacity to make health care decisions and that indi21 cates the individual’s wishes regarding medical treat22 ment in the event of future incapacity of the indi23 vidual to make health care decisions.’’. 

24 (2) MEDICAID.—Section 1902(w)(4) of such 

25 Act (42 U.S.C. 1396a(w)(4)) is amended by striking 

mstockstill on DSKH9S0YB1PROD with BILLS

12 

•HR 5795 IH

1 ‘‘means’’ and all that follows and inserting the fol2 lowing: ‘‘means a living will, medical directive, 

3 health care power of attorney, durable power of at4 torney for health care, advance health care directive, 

5 health care directive, or other statement that is re6 corded and completed in a manner recognized under 

7 State law by an individual with capacity to make 

8 health care decisions and that indicates the individ9 ual’s wishes regarding medical treatment in the 

10 event of future incapacity of the individual to make 

11 health care decisions.’’. 

12 (d) EFFECTIVE DATE.—The amendments made by 

13 this section take effect on January 1, 2011. 

14 SEC. 3. GRANTS FOR PROGRAMS FOR PHYSICIAN ORDERS 

15 FOR LIFE-SUSTAINING TREATMENT. 

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

17 Human Services shall make grants to eligible entities for 

18 the purpose of— 

19 (1) establishing statewide programs for physi20 cian orders for life-sustaining treatment; or 

21 (2) expanding or enhancing existing programs 

22 for physician orders for life-sustaining treatment. 

23 (b) AUTHORIZED ACTIVITIES.—Activities funded 

24 through a grant under this section for an area may in25 clude— 

mstockstill on DSKH9S0YB1PROD with BILLS

13 

•HR 5795 IH

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

2 includes hospitals, home care, hospice, long-term 

3 care, community and assisted living residences, 

4 skilled nursing facilities, and emergency medical 

5 services within a State; and 

6 (2) expanding an existing program for physi7 cian orders regarding life-sustaining treatment to 

8 serve more patients or enhance the quality of serv9 ices, including educational services for patients and 

10 patients’ families, training of health care profes11 sionals, or establishing a physician orders for life12 sustaining treatment registry. 

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

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

15 funds appropriated to carry out this section for each fiscal 

16 year— 

17 (1) at least one-half are used for establishing 

18 new programs for physician orders regarding life19 sustaining treatment; and 

20 (2) remaining funds are to be used for expand21 ing or enhancing existing programs for physician or22 ders regarding life-sustaining treatment. 

23 (d) DEFINITIONS.—In this section: 

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

mstockstill on DSKH9S0YB1PROD with BILLS

14 

•HR 5795 IH

1 (A) an academic medical center, a medical 

2 school, a State health department, a State med3 ical association, a multistate task force, a hos4 pital, or a health system capable of admin5 istering a program for physician orders regard6 ing life-sustaining treatment for a State; or 

7 (B) any other health care agency or entity 

8 as the Secretary determines appropriate. 

9 (2) The term ‘‘physician order for life-sus10 taining treatment’’ has the meaning given such term 

11 in section 1861(iii)(4) of the Social Security Act, as 

12 added by section 2. 

13 (3) The term ‘‘program for physician orders for 

14 life-sustaining treatment’’ means a program that— 

15 (A) supports the active use of physician or16 ders for life-sustaining treatment in the State; 

17 and 

18 (B) is guided by a coalition of stakeholders 

19 that includes patient advocacy groups and rep20 resentatives from across the continuum of 

21 health care services, such as disability rights 

22 advocates, senior advocates, emergency medical 

23 services, long-term care, medical associations, 

24 hospitals, home health, hospice, the State agenmstockstill on DSKH9S0YB1PROD with BILLS

15 

•HR 5795 IH

1 cy responsible for senior and disability services, 

2 and the State department of health. 

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 2011 through 2016. 

9 SEC. 4. ADVANCE CARE PLANNING STANDARDS FOR ELEC10 TRONIC HEALTH RECORDS. 

11 Notwithstanding section 3004(b)(3) of the Public 

12 Health Service Act (42 U.S.C. 300jj–14(b)(3)), not later 

13 than January 1, 2012, the Secretary of Health and 

14 Human Services shall adopt, by rule, standards for a 

15 qualified electronic health record (as defined in section 

16 3000(13) of such Act (42 U.S.C. 300jj(13)), with respect 

17 to patient communications with a health care provider 

18 about values and goals of care, to adequately display the 

19 following: 

20 (1) The patient’s current advance directive (as 

21 defined in section 1866(f)(3) of the Social Security 

22 Act (42 U.S.C. 1395cc(f)(3)), as applicable. 

23 (2) The patient’s current physician order for 

24 life-sustaining treatment (as defined in section 

mstockstill on DSKH9S0YB1PROD with BILLS

16 

•HR 5795 IH

1 1861(iii)(4) of the Social Security Act (42 U.S.C. 

2 1395x(iii)(4)), as applicable. 

3 A standard adopted under this section shall be treated as 

4 a standard adopted under section 3004 of the Public 

5 Health Service Act (42 U.S.C. 300jj–14) for purposes of 

6 certifying qualified electronic health records pursuant to 

7 section 3001(c)(5) of such Act (42 U.S.C. 300jj– 

8 11(c)(5)). 

9 SEC. 5. PORTABILITY OF ADVANCE DIRECTIVES. 

10 (a) IN GENERAL.—Section 1866(f) of the Social Se11 curity Act (42 U.S.C. 1395cc(f)) is amended by adding 

12 at the end the following new paragraph: 

13 ‘‘(5)(A) An advance directive validly executed outside 

14 the State in which such directive is presented must be 

15 given effect by a provider of services or organization to 

16 the same extent as an advance directive validly executed 

17 under the law of the State in which it is presented. 

18 ‘‘(B) In the absence of knowledge to the contrary, 

19 a physician or other health care provider or organization 

20 may presume that a written advance health care directive 

21 or similar instrument, regardless of where executed, is 

22 valid. 

23 ‘‘(C) In the absence of a validly executed advance di24 rective, any authentic expression of a person’s wishes with 

25 respect to health care shall be honored. 

mstockstill on DSKH9S0YB1PROD with BILLS

17 

•HR 5795 IH

1 ‘‘(D) The provisions of this paragraph shall preempt 

2 any State law on advance directive portability to the extent 

3 such law is inconsistent with such provisions. Nothing in 

4 the paragraph shall be construed to authorize the adminis5 tration of health care treatment otherwise prohibited by 

6 the laws of the State in which the directive is presented.’’. 

7 (b) MEDICAID.—Section 1902(w) of the Social Secu8 rity Act (42 U.S.C. 1396a(w)) is amended by adding at 

9 the end the following new paragraph: 

10 ‘‘(6)(A) An advance directive validly executed outside 

11 the State in which such directive is presented must be 

12 given effect by a provider or organization to the same ex13 tent as an advance directive validly executed under the law 

14 of the State in which it is presented. 

15 ‘‘(B) In the absence of knowledge to the contrary, 

16 a physician, other health care provider, or organization 

17 may presume that a written advance health care directive 

18 or similar instrument, regardless of where executed, is 

19 valid. 

20 ‘‘(C) In the absence of a validly executed advance di21 rective, any authentic expression of a person’s wishes with 

22 respect to health care shall be honored. 

23 ‘‘(D) The provisions of this paragraph shall preempt 

24 any State law on advance directive portability to the extent 

25 such law is inconsistent with such provisions. Nothing in 

mstockstill on DSKH9S0YB1PROD with BILLS

18 

•HR 5795 IH

1 the paragraph shall be construed to authorize the adminis2 tration of health care treatment otherwise prohibited by 

3 the laws of the State in which the directive is presented.’’. 

Æ 

mstockstill on DSKH9S0YB1PROD with BILLS