I 

110TH CONGRESS 

2D SESSION H. R. 5702 

To amend titles XVIII and XIX of the Social Security Act to promote 

the use of advance directives, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 3, 2008 

Mr. LEVIN (for himself, Mr. CASTLE, Mr. MCDERMOTT, Mr. KILDEE, Mrs. 

MCCARTHY of New York, Mr. MOORE of Kansas, Mr. FARR, Ms. 

DELAURO, Ms. SLAUGHTER, Ms. WASSERMAN SCHULTZ, Mr. GEORGE

MILLER of California, Ms. HOOLEY, Mr. CUMMINGS, Mr. BLUMENAUER, 

Mr. HIGGINS, Mr. WU, and Mr. COHEN) introduced the following bill; 

which was referred to the Committee on Energy and Commerce 

A BILL 

To amend titles XVIII and XIX of the Social Security Act 

to promote the use of advance directives, 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; TABLE OF CONTENTS. 

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

5 ‘‘Advance Directive Promotion Act of 2008’’. 

6 (b) TABLE OF CONTENTS.—The table of contents of 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 


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Sec. 2. Improvement of policies related to the use and portability of advance 

directives. 

Sec. 3. Medicare coverage of an end-of-life planning consultation as part of an 

initial preventive physical examination. 

Sec. 4. National information hotline for end-of-life decisionmaking and hospice 

care. 

Sec. 5. Increasing awareness of the importance of end-of-life planning. 

1 SEC. 2. IMPROVEMENT OF POLICIES RELATED TO THE USE 

2 AND PORTABILITY OF ADVANCE DIRECTIVES. 

3 (a) MEDICARE.—Section 1866(f) of the Social Secu4 rity Act (42 U.S.C. 1395cc(f)) is amended— 

5 (1) in paragraph (1)— 

6 (A) in subparagraph (B), by inserting 

7 ‘‘and if presented by the individual (or on be8 half of the individual), to include the content of 

9 such advance directive in a prominent part of 

10 such record’’ before the semicolon at the end; 

11 (B) in subparagraph (D), by striking 

12 ‘‘and’’ after the semicolon at the end; 

13 (C) in subparagraph (E), by striking the 

14 period at the end and inserting ‘‘; and’’; and 

15 (D) by inserting after subparagraph (E) 

16 the following new subparagraph: 

17 ‘‘(F) to provide each such individual with the 

18 opportunity to discuss issues relating to the informa19 tion provided to that individual pursuant to subpara20 graph (A) with an appropriately trained profes21 sional.’’; 


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1 (2) in paragraph (3), by striking ‘‘a written’’ 

2 and inserting ‘‘an’’; and 

3 (3) by adding at the end the following new 

4 paragraph: 

5 ‘‘(5)(A) In addition to the requirements of paragraph 

6 (1), a provider of services shall give effect to a valid ad7 vance directive executed outside the State in which such 

8 directive is presented to the same extent as such provider 

9 would give effect to a valid advance directive executed 

10 under the law of the State in which it is presented. In 

11 the absence of knowledge to the contrary, such a provider 

12 may presume that such an advance directive executed out13 side the State in which it is presented is valid. Nothing 

14 in this paragraph shall be construed to authorize the ad15 ministration of health care treatment otherwise prohibited 

16 by the laws of the State in which the directive is presented. 

17 ‘‘(B) The provisions of this paragraph shall preempt 

18 any State law to the extent such law is inconsistent with 

19 such provisions. The provisions of this paragraph shall not 

20 preempt any State law that provides for greater port21 ability, more deference to a patient’s wishes, or more lati22 tude in determining a patient’s wishes with respect to 

23 health care.’’. 

24 (b) MEDICAID.—Section 1902(w) of the Social Secu25 rity Act (42 U.S.C. 1396a(w)) is amended— 


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1 (1) in paragraph (1)— 

2 (A) in subparagraph (B)— 

3 (i) by striking ‘‘in the individual’s 

4 medical record’’ and inserting ‘‘in a promi5 nent part of the individual’s current med6 ical record’’; and 

7 (ii) by inserting ‘‘and if presented by 

8 the individual (or on behalf of the indi9 vidual), to include the content of such ad10 vance directive in a prominent part of such 

11 record’’ before the semicolon at the end; 

12 (B) in subparagraph (D), by striking 

13 ‘‘and’’ after the semicolon at the end; 

14 (C) in subparagraph (E), by striking the 

15 period at the end and inserting ‘‘; and’’; and 

16 (D) by inserting after subparagraph (E) 

17 the following new subparagraph: 

18 ‘‘(F) to provide each such individual with the 

19 opportunity to discuss issues relating to the informa20 tion provided to that individual pursuant to subpara21 graph (A) with an appropriately trained profes22 sional.’’; 

23 (2) in paragraph (4), by striking ‘‘a written’’ 

24 and inserting ‘‘an’’; and 


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1 (3) by adding at the end the following para2 graph: 

3 ‘‘(6)(A) In addition to the requirements of paragraph 

4 (1), a provider shall give effect to a valid advance directive 

5 executed outside the State in which such directive is pre6 sented to the same extent as such provider would give ef7 fect to a valid advance directive executed under the law 

8 of the State in which it is presented. In the absence of 

9 knowledge to the contrary, such a provider may presume 

10 that such an advance directive executed outside the State 

11 in which it is presented is valid. Nothing in this paragraph 

12 shall be construed to authorize the administration of 

13 health care treatment otherwise prohibited by the laws of 

14 the State in which the directive is presented. 

15 ‘‘(B) The provisions of this paragraph shall preempt 

16 any State law to the extent such law is inconsistent with 

17 such provisions. The provisions of this paragraph shall not 

18 preempt any State law that provides for greater port19 ability, more deference to a patient’s wishes, or more lati20 tude in determining a patient’s wishes with respect to 

21 health care.’’. 

22 (c) EFFECTIVE DATES.— 

23 (1) IN GENERAL.—Subject to paragraph (2), 

24 the amendments made by subsections (a) and (b) 

25 shall apply to provider agreements entered into, reVerDate Aug 31 2005 22:15 Apr 04, 2008 Jkt 059200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5702.IH H5702

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1 newed, or extended under title XVIII of the Social 

2 Security Act (42 U.S.C. 1395 et seq.), and to State 

3 plans under title XIX of such Act (42 U.S.C. 1396 

4 et seq.), on or after such date as the Secretary of 

5 Health and Human Services specifies, but in no case 

6 may such date be later than 1 year after the date 

7 of enactment of this Act. 

8 (2) EXTENSION OF EFFECTIVE DATE FOR

9 STATE LAW AMENDMENT.—In the case of a State 

10 plan under title XIX of the Social Security Act (42 

11 U.S.C. 1396 et seq.) which the Secretary of Health 

12 and Human Services determines requires State legis13 lation in order for the plan to meet the additional 

14 requirements imposed by the amendments made by 

15 subsection (b), the State plan shall not be regarded 

16 as failing to comply with the requirements of such 

17 title solely on the basis of its failure to meet these 

18 additional requirements before the first day of the 

19 first calendar quarter beginning after the close of 

20 the first regular session of the State legislature that 

21 begins after the date of enactment of this Act. For 

22 purposes of the previous sentence, in the case of a 

23 State that has a 2-year legislative session, each year 

24 of the session is considered to be a separate regular 

25 session of the State legislature. 


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1 SEC. 3. MEDICARE COVERAGE OF AN END-OF-LIFE PLAN2 NING CONSULTATION AS PART OF AN INITIAL 

3 PREVENTIVE PHYSICAL EXAMINATION. 

4 (a) IN GENERAL.—Section 1861(ww) of the Social 

5 Security Act (42 U.S.C. 1395x(ww)) is amended— 

6 (1) in paragraph (1), by striking ‘‘paragraph 

7 (2),’’ and inserting ‘‘paragraph (2) and an end-of8 life planning consultation (as defined in paragraph 

9 (3)),’’; and 

10 (2) by adding at the end the following new 

11 paragraph: 

12 ‘‘(3) For purposes of paragraph (1), the term ‘end13 of-life planning consultation’ means a consultation be14 tween the physician and an individual regarding— 

15 ‘‘(A) the importance of preparing advance di16 rectives in case an injury or illness causes the indi17 vidual to be unable to make health care decisions; 

18 ‘‘(B) the situations in which an advance direc19 tive is likely to be relied upon; 

20 ‘‘(C) the reasons why the development of a 

21 comprehensive end-of-life plan is beneficial and the 

22 reasons why such a plan should be updated periodi23 cally as the health of the individual changes; 

24 ‘‘(D) the identification of resources that an in25 dividual may use to determine the requirements of 

26 the State in which such individual resides so that 


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1 the treatment wishes of that individual will be car2 ried out if the individual is unable to communicate 

3 those wishes, including requirements regarding the 

4 designation of a surrogate decision maker (also 

5 known as a health care proxy); and 

6 ‘‘(E) whether or not the physician is willing to 

7 follow the individual’s wishes as expressed in an ad8 vance directive.’’. 

9 (b) EFFECTIVE DATE.—The amendments made by 

10 this section shall apply to initial preventive physical exami11 nations furnished on or after January 1, 2009. 

12 SEC. 4. NATIONAL INFORMATION HOTLINE FOR END-OF13 LIFE DECISIONMAKING AND HOSPICE CARE. 

14 The Secretary of Health and Human Services, acting 

15 through the Administrator of the Centers for Medicare & 

16 Medicaid Services, shall operate directly, or by grant, con17 tract, or interagency agreement, out of funds otherwise 

18 appropriated to the Secretary, a clearinghouse and a 24- 

19 hour toll-free telephone hotline in order to provide con20 sumer information about advance directives (as defined in 

21 section 1866(f)(3) of the Social Security Act (42 U.S.C. 

22 1395cc(f)(3)), as amended by section 2(a)), end-of-life de23 cisionmaking, and available end-of-life and hospice care 

24 services. In carrying out the preceding sentence, the Ad25 ministrator may designate an existing clearinghouse and 


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1 24-hour toll-free telephone hotline or, if no such entity is 

2 appropriate, may establish a new clearinghouse and a 24- 

3 hour toll-free telephone hotline. 

4 SEC. 5. INCREASING AWARENESS OF THE IMPORTANCE OF 

5 END-OF-LIFE PLANNING. 

6 Title III of the Public Health Service Act (42 U.S.C. 

7 241 et seq.) is amended by adding at the end the following 

8 new part: 

9 ‘‘PART S—PROGRAMS TO INCREASE AWARENESS 

10 OF ADVANCE DIRECTIVE PLANNING ISSUES 

11 ‘‘SEC. 399FF. ADVANCE DIRECTIVE EDUCATION CAM12 PAIGNS. 

13 ‘‘(a) ADVANCE DIRECTIVE EDUCATION CAMPAIGN.— 

14 The Secretary shall, directly or through grants awarded 

15 under subsection (b), conduct a national public education 

16 campaign— 

17 ‘‘(1) to raise public awareness of the impor18 tance of planning for care near the end of life; 

19 ‘‘(2) to improve the public’s understanding of 

20 the various situations in which individuals may find 

21 themselves if they become unable to express their 

22 health care wishes; 

23 ‘‘(3) to explain the need for readily available 

24 legal documents that express an individual’s wishes, 

25 through advance directives (including living wills, 


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1 comfort care orders, and durable powers of attorney 

2 for health care); and 

3 ‘‘(4) to educate the public about the availability 

4 of hospice care and palliative care. 

5 ‘‘(b) GRANTS.— 

6 ‘‘(1) IN GENERAL.—The Secretary shall use at 

7 least 60 percent of the funds appropriated under 

8 subsection (c) for the purpose of awarding grants to 

9 public or nonprofit private entities (including States 

10 or political subdivisions of a State), or a consortium 

11 of any of such entities, for the purpose of conducting 

12 education campaigns under subsection (a). 

13 ‘‘(2) PERIOD.—Any grant awarded under para14 graph (1) shall be for a period of 3 years. 

15 ‘‘(c) AUTHORIZATION OF APPROPRIATIONS.—There 

16 are authorized to be appropriated to carry out this section 

17 $25,000,000.’’. 

Æ 


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