II 

110TH CONGRESS 

1ST SESSION S. 465 

To amend titles XVIII and XIX of the Social Security Act and title III 

of the Public Health Service Act to improve access to information about 

individuals’ health care options and legal rights for care near the end 

of life, to promote advance care planning and decisionmaking so that 

individuals’ wishes are known should they become unable to speak for 

themselves, to engage health care providers in disseminating information 

about and assisting in the preparation of advance directives, which include living wills and durable powers of attorney for health care, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 31, 2007 

Mr. NELSON of Florida (for himself, Mr. LUGAR, Mr. ROCKEFELLER, Ms. 

COLLINS, Mr. DURBIN, and Mr. BINGAMAN) introduced the following bill; 

which was read twice and referred to the Committee on Finance 

A BILL 

To amend titles XVIII and XIX of the Social Security Act 

and title III of the Public Health Service Act to improve 

access to information about individuals’ health care options and legal rights for care near the end of life, 

to promote advance care planning and decisionmaking 

so that individuals’ wishes are known should they become 

unable to speak for themselves, to engage health care 

providers in disseminating information about and assisting in the preparation of advance directives, which include living wills and durable powers of attorney for 

health care, and for other purposes. 


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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 ‘‘Advance Directives Im5 provement and Education Act of 2007’’. 

6 SEC. 2. ADVANCE DIRECTIVES. 

7 (a) FINDINGS.—Congress makes the following find8 ings: 

9 (1) Every year 2,500,000 people die in the 

10 United States. Eighty percent of those people die in 

11 institutions such as hospitals, nursing homes, and 

12 other facilities. Chronic illnesses, such as cancer and 

13 heart disease, account for 2 out of every 3 deaths. 

14 (2) In 1997, the Supreme Court of the United 

15 States, in its decisions in Washington v. Glucksberg 

16 and Vacco v. Quill, reaffirmed the constitutional 

17 right of competent adults to refuse unwanted med18 ical treatment. In those cases, the Court stressed the 

19 use of advance directives as a means of safeguarding 

20 that right should those adults become incapable of 

21 deciding for themselves. 

22 (3) A survey published in 2005 estimated that 

23 the overall prevalence of advance directives is 29 

24 percent of the general population, despite the pas25 sage of the Patient Self-Determination Act in 1990, 


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1 which requires that health care providers tell pa2 tients about advance directives. 

3 (4) Competent adults should complete advance 

4 care plans stipulating their health care decisions in 

5 the event that they become unable to speak for 

6 themselves. Through the execution of advance direc7 tives, including living wills and durable powers of at8 torney for health care according to the laws of the 

9 State in which they reside, individuals can protect 

10 their right to express their wishes and have them re11 spected. 

12 (b) PURPOSES.—The purposes of this section are to 

13 improve access to information about individuals’ health 

14 care options and legal rights for care near the end of life, 

15 to promote advance care planning and decisionmaking so 

16 that individuals’ wishes are known should they become un17 able to speak for themselves, to engage health care pro18 viders in disseminating information about and assisting in 

19 the preparation of advance directives, which include living 

20 wills and durable powers of attorney for health care, and 

21 for other purposes. 

22 (c) MEDICARE COVERAGE OF END-OF-LIFE PLAN23 NING AND CONSULTATIONS AS PART OF INITIAL PREVEN24 TIVE PHYSICAL EXAMINATION.— 


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1 (1) IN GENERAL.—Section 1861(ww) of the So2 cial Security Act (42 U.S.C. 1395x(ww)) is amend3 ed— 

4 (A) in paragraph (1), by striking ‘‘para5 graph (2),’’ and inserting ‘‘paragraph (2) and 

6 an end-of-life planning consultation (as defined 

7 in paragraph (3)),’’; and 

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

9 paragraph: 

10 ‘‘(3) For purposes of paragraph (1), the term ‘end11 of-life planning consultation’ means a consultation be12 tween the physician and an individual regarding— 

13 ‘‘(A) the importance of preparing advance di14 rectives in case an injury or illness causes the indi15 vidual to be unable to make health care decisions; 

16 ‘‘(B) the situations in which an advance direc17 tive is likely to be relied upon; 

18 ‘‘(C) the reasons that the development of a 

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

20 reasons that such a plan should be updated periodi21 cally as the health of the individual changes; 

22 ‘‘(D) the identification of resources that an in23 dividual may use to determine the requirements of 

24 the State in which such individual resides so that 

25 the treatment wishes of that individual will be carVerDate Aug 31 2005 03:19 Feb 03, 2007 Jkt 059200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S465.IS S465

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1 ried out if the individual is unable to communicate 

2 those wishes, including requirements regarding the 

3 designation of a surrogate decision maker (health 

4 care proxy); and 

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

6 follow the individual’s wishes as expressed in an ad7 vance directive.’’. 

8 (2) EFFECTIVE DATE.—The amendments made 

9 by paragraph (1) shall apply to initial preventive 

10 physical examinations provided on or after January 

11 1, 2008. 

12 (d) IMPROVEMENT OF POLICIES RELATED TO THE

13 USE AND PORTABILITY OF ADVANCE DIRECTIVES.— 

14 (1) MEDICARE.—Section 1866(f) of the Social 

15 Security Act (42 U.S.C. 1395cc(f)) is amended— 

16 (A) in paragraph (1)— 

17 (i) in subparagraph (B), by inserting 

18 ‘‘and if presented by the individual (or on 

19 behalf of the individual), to include the 

20 content of such advance directive in a 

21 prominent part of such record’’ before the 

22 semicolon at the end; 

23 (ii) in subparagraph (D), by striking 

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


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1 (iii) in subparagraph (E), by striking 

2 the period at the end and inserting ‘‘; 

3 and’’; and 

4 (iv) by inserting after subparagraph 

5 (E) the following new subparagraph: 

6 ‘‘(F) to provide each individual with the oppor7 tunity to discuss issues relating to the information 

8 provided to that individual pursuant to subpara9 graph (A) with an appropriately trained profes10 sional.’’; 

11 (B) in paragraph (3), by striking ‘‘a writ12 ten’’ and inserting ‘‘an’’; and 

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

14 paragraph: 

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

16 (1), a provider of services, Medicare Advantage organiza17 tion, or prepaid or eligible organization (as the case may 

18 be) shall give effect to an advance directive executed out19 side the State in which such directive is presented, even 

20 one that does not appear to meet the formalities of execu21 tion, form, or language required by the State in which it 

22 is presented to the same extent as such provider or organi23 zation would give effect to an advance directive that meets 

24 such requirements, except that a provider or organization 

25 may decline to honor such a directive if the provider or 


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1 organization can reasonably demonstrate that it is not an 

2 authentic expression of the individual’s wishes concerning 

3 his or her health care. Nothing in this paragraph shall 

4 be construed to authorize the administration of medical 

5 treatment otherwise prohibited by the laws of the State 

6 in which the directive is presented. 

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

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

9 such provisions. The provisions of this paragraph shall not 

10 preempt any State law that provides for greater port11 ability, more deference to a patient’s wishes, or more lati12 tude in determining a patient’s wishes.’’. 

13 (2) MEDICAID.—Section 1902(w) of the Social 

14 Security Act (42 U.S.C. 1396a(w)) is amended— 

15 (A) in paragraph (1)— 

16 (i) in subparagraph (B)— 

17 (I) by striking ‘‘in the individ18 ual’s medical record’’ and inserting 

19 ‘‘in a prominent part of the individ20 ual’s current medical record’’; and 

21 (II) by inserting ‘‘and if pre22 sented by the individual (or on behalf 

23 of the individual), to include the con24 tent of such advance directive in a 


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1 prominent part of such record’’ before 

2 the semicolon at the end; 

3 (ii) in subparagraph (D), by striking 

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

5 (iii) in subparagraph (E), by striking 

6 the period at the end and inserting ‘‘; 

7 and’’; and 

8 (iv) by inserting after subparagraph 

9 (E) the following new subparagraph: 

10 ‘‘(F) to provide each individual with the oppor11 tunity to discuss issues relating to the information 

12 provided to that individual pursuant to subpara13 graph (A) with an appropriately trained profes14 sional.’’; 

15 (B) in paragraph (4), by striking ‘‘a writ16 ten’’ and inserting ‘‘an’’; and 

17 (C) by adding at the end the following 

18 paragraph: 

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

20 (1), a provider or organization (as the case may be) shall 

21 give effect to an advance directive executed outside the 

22 State in which such directive is presented, even one that 

23 does not appear to meet the formalities of execution, form, 

24 or language required by the State in which it is presented 

25 to the same extent as such provider or organization would 


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1 give effect to an advance directive that meets such require2 ments, except that a provider or organization may decline 

3 to honor such a directive if the provider or organization 

4 can reasonably demonstrate that it is not an authentic ex5 pression of the individual’s wishes concerning his or her 

6 health care. Nothing in this paragraph shall be construed 

7 to authorize the administration of medical treatment oth8 erwise prohibited by the laws of the State in which the 

9 directive is presented. 

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

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

12 such provisions. The provisions of this paragraph shall not 

13 preempt any State law that provides for greater port14 ability, more deference to a patient’s wishes, or more lati15 tude in determining a patient’s wishes.’’. 

16 (3) EFFECTIVE DATES.— 

17 (A) IN GENERAL.—Subject to subpara18 graph (B), the amendments made by para19 graphs (1) and (2) shall apply to provider 

20 agreements and contracts entered into, re21 newed, or extended under title XVIII of the So22 cial Security Act (42 U.S.C. 1395 et seq.), and 

23 to State plans under title XIX of such Act (42 

24 U.S.C. 1396 et seq.), on or after such date as 

25 the Secretary of Health and Human Services 


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1 specifies, but in no case may such date be later 

2 than 1 year after the date of enactment of this 

3 Act. 

4 (B) EXTENSION OF EFFECTIVE DATE FOR

5 STATE LAW AMENDMENT.—In the case of a 

6 State plan under title XIX of the Social Secu7 rity Act (42 U.S.C. 1396 et seq.) which the 

8 Secretary of Health and Human Services deter9 mines requires State legislation in order for the 

10 plan to meet the additional requirements im11 posed by the amendments made by paragraph 

12 (2), the State plan shall not be regarded as fail13 ing to comply with the requirements of such 

14 title solely on the basis of its failure to meet 

15 these additional requirements before the first 

16 day of the first calendar quarter beginning after 

17 the close of the first regular session of the 

18 State legislature that begins after the date of 

19 enactment of this Act. For purposes of the pre20 vious sentence, in the case of a State that has 

21 a 2-year legislative session, each year of the ses22 sion is considered to be a separate regular ses23 sion of the State legislature. 

24 (e) INCREASING AWARENESS OF THE IMPORTANCE

25 OF END-OF-LIFE PLANNING.—Title III of the Public 


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1 Health Service Act (42 U.S.C. 241 et seq.) is amended 

2 by adding at the end the following new part: 

3 ‘‘PART R—PROGRAMS TO INCREASE AWARENESS 

4 OF ADVANCE DIRECTIVE PLANNING ISSUES 

5 ‘‘SEC. 399Z–1. ADVANCE DIRECTIVE EDUCATION CAM6 PAIGNS AND INFORMATION CLEARING7 HOUSES. 

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

9 The Secretary shall, directly or through grants awarded 

10 under subsection (c), conduct a national public education 

11 campaign— 

12 ‘‘(1) to raise public awareness of the impor13 tance of planning for care near the end of life; 

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

15 the various situations in which individuals may find 

16 themselves if they become unable to express their 

17 health care wishes; 

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

19 legal documents that express an individual’s wishes, 

20 through advance directives (including living wills, 

21 comfort care orders, and durable powers of attorney 

22 for health care); and 

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

24 of hospice care and palliative care. 


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1 ‘‘(b) INFORMATION CLEARINGHOUSE.—The Sec2 retary, directly or through grants awarded under sub3 section (c), shall provide for the establishment of a na4 tional, toll-free, information clearinghouse as well as clear5 inghouses that the public may access to find out about 

6 State-specific information regarding advance directive and 

7 end-of-life decisions. 

8 ‘‘(c) GRANTS.— 

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

10 least 60 percent of the funds appropriated under 

11 subsection (d) for the purpose of awarding grants to 

12 public or nonprofit private entities (including States 

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

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

15 education campaigns under subsection (a) and estab16 lishing information clearinghouses under subsection 

17 (b). 

18 ‘‘(2) PERIOD.—Any grant awarded under para19 graph (1) shall be for a period of 3 years. 

20 ‘‘(d) AUTHORIZATION OF APPROPRIATIONS.—There 

21 are authorized to be appropriated to carry out this section 

22 $25,000,000.’’. 

23 (f) GAO STUDY AND REPORT ON ESTABLISHMENT

24 OF NATIONAL ADVANCE DIRECTIVE REGISTRY.— 


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1 (1) STUDY.—The Comptroller General of the 

2 United States shall conduct a study on the feasi3 bility of a national registry for advance directives, 

4 taking into consideration the constraints created by 

5 the privacy provisions enacted as a result of the 

6 Health Insurance Portability and Accountability Act 

7 of 1996 (Public Law 104–191). 

8 (2) REPORT.—Not later than 18 months after 

9 the date of enactment of this Act, the Comptroller 

10 General of the United States shall submit to Con11 gress a report on the study conducted under para12 graph (1) together with recommendations for such 

13 legislation and administrative action as the Comp14 troller General of the United States determines to be 

15 appropriate. 

16 (g) EFFECTIVE DATE.—Except as provided in sub17 sections (c) and (d), this section and the amendments 

18 made by this section shall take effect on the date of enact19 ment of this Act. 

Æ 


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