II 

113TH CONGRESS 

2D SESSION S. 2240 

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 

APRIL 10, 2014 

Mr. COONS (for Mr. COBURN (for himself, Mr. COONS, and Mr. 

BLUMENTHAL)) 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 within 3 

17 years of the date of enactment of this section. 

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

19 ‘‘(A) CERTIFIED ADVANCE DIRECTIVE.— 

20 The term ‘certified advance directive’ means 

21 any written or electronically stored statement 

22 by an eligible beneficiary that— 

23 ‘‘(i) provides instructions that outline 

24 the kind of medical treatments and care 

25 that such beneficiary would want or not 

26 want under particular conditions, and may 


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1 also include the identification of a health 

2 care proxy or legal representative to make 

3 medical treatment decisions for the bene4 ficiary if the beneficiary becomes unable to 

5 make or communicate those decisions; and 

6 ‘‘(ii) is offered by an entity that has 

7 received accreditation from the Secretary 

8 under this section. 

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

10 ‘eligible beneficiary’ means an individual en11 rolled under this part. 

12 ‘‘(3) VOLUNTARY.—Participation in the Pro13 gram shall be voluntary with respect to the eligible 

14 beneficiary and an eligible beneficiary who has reg15 istered a certified advance directive under the Pro16 gram may terminate such directive at any time. 

17 Nothing in this section shall require an eligible bene18 ficiary to adopt or maintain a certified advance di19 rective. 

20 ‘‘(4) BEST PRACTICES.—In establishing and im21 plementing the Program, the Secretary shall con22 sider best practices within existing advance directive 

23 registry technologies, programs, and systems, includ24 ing web-based or cloud-based advance directive tech25 nologies, which may utilize time and date stamps, 


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1 video, or other innovative measures to protect the 

2 authenticity, improve the quality, and enhance the 

3 security of such directives. 

4 ‘‘(5) STATE LAW.—This section shall in no way 

5 supercede, abrogate, or otherwise interfere with 

6 State law governing advance directives. 

7 ‘‘(b) REGISTRATION.— 

8 ‘‘(1) IN GENERAL.—The Secretary shall estab9 lish procedures for an eligible beneficiary to register 

10 such beneficiary’s adoption of a certified advance di11 rective under the Program. Such procedures shall 

12 ensure that registration is available both through an 

13 online and manual process. The Secretary shall also 

14 establish procedures to ensure Program participants 

15 can update previously registered information that is 

16 no longer accurate and indicate that an advance di17 rective has been terminated. 

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

19 such other information as the Secretary may deem 

20 appropriate, an eligible beneficiary seeking to reg21 ister a certified advance directive under the program 

22 shall indicate where the advance directive is main23 tained. 


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

2 established under paragraph (1) shall provide that 

3 registration under the Program shall occur during— 

4 ‘‘(A) an eligible beneficiary’s initial Part C 

5 enrollment as described in paragraph (1) of sec6 tion 1851(e); and 

7 ‘‘(B) the annual, coordinated election pe8 riod under paragraph (3) of such section. 

9 ‘‘(4) PRIVACY AND SECURITY.— 

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

11 ensure that all aspects of the registration sys12 tem comply with the Federal regulations (con13 cerning the privacy of individually identifiable 

14 health information) promulgated under section 

15 264(c) of the Health Insurance Portability and 

16 Accountability Act of 1996. 

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

18 standardized data protections and privacy 

19 standards, including the Federal regulations de20 scribed in paragraph (1), to ensure that the 

21 registration record of an eligible beneficiary can 

22 only be accessed by— 

23 ‘‘(i) the beneficiary, through the proc24 ess established under paragraph (1); and 


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1 ‘‘(ii) providers of services and sup2 pliers participating under this title, 

3 through a process established by the Sec4 retary. 

5 ‘‘(c) ACCREDITATION.— 

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

7 Secretary shall— 

8 ‘‘(A) grant accreditation to advance direc9 tive vendors and other entities providing ad10 vance directives that meet the accreditation cri11 teria established under paragraph (2); and 

12 ‘‘(B) establish a process whereby advance 

13 directive vendors and other entities providing 

14 advance directives may obtain accreditation 

15 under this subsection. 

16 ‘‘(2) ACCREDITATION CRITERIA.—The Sec17 retary shall establish accreditation criteria for ad18 vance directive vendors and other entities providing 

19 advance directives that seek to offer advance direc20 tives to be certified under the Program. Such cri21 teria shall include the following: 

22 ‘‘(A) PROCESS FOR ADOPTING ADVANCE

23 DIRECTIVE.—The advance directive vendor or 

24 other entity providing an advance directive shall 


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

2 terminate an advance directive— 

3 ‘‘(i) through an online process; and 

4 ‘‘(ii) as an alternative to the online 

5 process, through a manual process that 

6 employs paper documents. 

7 ‘‘(B) ACCESS.—The advance directive ven8 dor or other entity providing an advance direc9 tive shall maintain advance directives in such a 

10 way that— 

11 ‘‘(i) an eligible beneficiary who has 

12 adopted an advance directive with such 

13 vendor or entity and any family member, 

14 legal representative, or health care proxy 

15 legally designated by such beneficiary has 

16 direct, near real-time online access to the 

17 beneficiary’s advance directive for purposes 

18 of viewing and sharing such advance direc19 tive; 

20 ‘‘(ii) in the case of an eligible bene21 ficiary who has adopted an advance direc22 tive with such vendor or entity or any fam23 ily member, legal representative, or health 

24 care proxy legally designated by such bene25 ficiary who is unable or unwilling to use 


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1 the online access under subparagraph (A), 

2 such individual is able to obtain a hard 

3 copy of the beneficiary’s advance directive 

4 for the purposes of viewing and sharing 

5 such advance directive; and 

6 ‘‘(iii) providers of services and sup7 pliers participating under this title have 

8 near real-time access to the advance direc9 tive of an eligible beneficiary who has 

10 adopted an advance directive with such 

11 vendor or entity. 

12 ‘‘(C) PRIVACY PROTECTIONS.— 

13 ‘‘(i) IN GENERAL.—The advance di14 rective vendor or other entity providing an 

15 advance directive shall comply with the 

16 Federal regulations (concerning the privacy 

17 of individually identifiable health informa18 tion) promulgated under section 264(c) of 

19 the Health Insurance Portability and Ac20 countability Act of 1996 (42 U.S.C. 

21 1320d–2 note). 

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

23 shall utilize standardized data protections 

24 and privacy standards, including the Fed25 eral regulations described in paragraph 


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1 (1), to ensure that the content of an eligi2 ble beneficiary’s advance directive is owned 

3 and maintained by the beneficiary and can 

4 only be accessed by— 

5 ‘‘(I) the beneficiary or the bene6 ficiary’s designee pursuant to clauses 

7 (i) and (ii) of subparagraph (A); and 

8 ‘‘(II) a provider of services or a 

9 supplier pursuant to subparagraph 

10 (A)(iii). 

11 ‘‘(D) SECURITY AND TESTING.—The ad12 vance directive vendor or other entity providing 

13 an advance directive shall certify that— 

14 ‘‘(i) all data management and data 

15 transfer elements involved in adopting, 

16 maintaining, and accessing the advance di17 rective have successfully passed rigorous 

18 independent testing regarding standards of 

19 timeliness, accuracy, and efficiency; 

20 ‘‘(ii) the data management and data 

21 transfer elements involved in adopting, 

22 maintaining, and accessing the advance di23 rective meet widely accepted industry secu24 rity standards; and 


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1 ‘‘(iii) the system that provides access 

2 to the advance directive has passed real3 time tests simulating a realistic volume of 

4 beneficiaries and providers accessing ad5 vance directives simultaneously. 

6 ‘‘(E) CERTIFIED ADVANCE DIRECTIVES.— 

7 The advance directive vendor or other entity 

8 providing an advance directive shall agree to 

9 offer certified advance directives (as defined in 

10 subsection (a)(2)(A)). 

11 ‘‘(F) OTHER.—Such other criteria as the 

12 Secretary may require. 

13 ‘‘(d) INCENTIVE.— 

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

15 one-time payment of the amount specified in para16 graph (2) to each eligible beneficiary that adopts a 

17 certified advance directive and registers such direc18 tive with the Program. 

19 ‘‘(2) AMOUNT.— 

20 ‘‘(A) IN GENERAL.—For purposes of para21 graph (1), the amount specified in this para22 graph is— 

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

24 certified advance directive with the Pro25 gram in 2015— 


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1 ‘‘(I) in the case of a beneficiary 

2 that creates, adopts, and registers a 

3 certified advance directive using on4 line processes only, $75; or 

5 ‘‘(II) in the case of a beneficiary 

6 that creates, adopts, or registers a 

7 certified advance directive using a 

8 manual process, $50; and 

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

10 certified advance directive with the Pro11 gram in a subsequent year, the amount 

12 specified in this paragraph for the pre13 ceding year increased by the percentage in14 crease in the Chained Consumer Price 

15 Index for All Urban Consumers (as pub16 lished by the Bureau of Labor Statistics of 

17 the Department of Labor) over the pre18 ceding year. 

19 ‘‘(B) ROUNDING.—If any amount deter20 mined under subparagraph (A) is not a multiple 

21 of 10 cents, such amount shall be rounded to 

22 the nearest multiple of 10 cents. 

23 ‘‘(3) ADMINISTRATION.—The Secretary shall, 

24 through a full notice and comment rulemaking proc25 ess, establish procedures for— 


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1 ‘‘(A) making the incentive payment di2 rectly to the eligible beneficiary or a personal 

3 account maintained by the beneficiary at a fi4 nancial institution that has been designated by 

5 the beneficiary, and ensuring that no other enti6 ty receives the payment on the beneficiary’s be7 half; and 

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

9 receive an incentive payment under this section 

10 more than once. 

11 ‘‘(e) EDUCATION AND OUTREACH.—The Secretary 

12 shall work with stakeholders to conduct appropriate edu13 cational and outreach activities under the Program, in14 cluding— 

15 ‘‘(1) the inclusion of detailed information re16 garding the personal benefits of adopting a certified 

17 advance directive and participating in the Program 

18 in the Medicare and You handbook under section 

19 1804; and 

20 ‘‘(2) the inclusion of detailed information re21 garding the personal benefits of adopting a certified 

22 advance directive and participating in the Program 

23 and an explanation of how the Program works 

24 (which may include sample certified advance direc25 tives, links to the websites of certified advance direcVerDate Mar 15 2010 02:45 Apr 17, 2014 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2240.IS S2240

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1 tive vendors, other entities providing advance direc2 tives, and stakeholder organizations, and such other 

3 information as the Secretary determines useful) on 

4 the Internet website of the Centers for Medicare & 

5 Medicaid Services. 

6 ‘‘(f) CONSULTATION.—In establishing and imple7 menting the Program, the Secretary shall consult with, 

8 and solicit feedback from, a broad array of stakeholders 

9 representing the interests of eligible beneficiaries, health 

10 care providers, the advance directive industry and advance 

11 directive vendors, and faith-based organizations. Such 

12 stakeholders shall include physicians, nurses, hospital rep13 resentatives, palliative and hospice caregivers, advance di14 rective companies and vendors, patients’ rights groups, 

15 health information privacy experts, elder law experts, sen16 ior groups, counselors, chaplains, clergy, ethicists, various 

17 other members of the faith community, and other individ18 uals and entities that the Secretary determines appro19 priate.’’. 

Æ 


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