I 117th CONGRESS 1st Session H. R. 5656 IN THE HOUSE OF REPRESENTATIVES October 21, 2021 Mr. LaTurner (for himself, Mr. Smith of New Jersey , Mr. Banks , Mrs. Miller-Meeks , Mrs. Hinson , Mr. Mann , Mr. Estes , Ms. Salazar , Mr. Moore of Utah , Mrs. Bice of Oklahoma , Mr. Barr , Mr. Babin , Mr. Cawthorn , Mrs. Lesko , Mr. Lamborn , Mr. Latta , Ms. Van Duyne , Mr. Good of Virginia , Ms. Letlow , Mr. Mullin , Mr. Harris , Mr. Duncan , Mr. Rosendale , Mr. Jackson , Mr. C. Scott Franklin of Florida , Mr. Williams of Texas , Mr. Kustoff , and Mrs. Miller of Illinois ) 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 titles XVIII and XIX of the Social Security Act to require providers of services and health maintenance organizations under the Medicare and Medicaid programs to provide for certain policies to be in place relating to do-not-resuscitate orders or similar physician’s orders for unemancipated minors receiving services.

1. Short title This Act may be cited as the Simon Crosier Act . 2. Medicare and Medicaid requirements for certain policies relating to do-not-resuscitate orders or similar physician’s orders (a) Medicare provider agreement requirement (1) In general Section 1866(f) of the Social Security Act ( 42 U.S.C. 1395cc(f) ) is amended by adding at the end the following new paragraphs: (5) For purposes of subsection (a)(1)(Q) and sections 1819(c)(1)(E), 1833(s), 1852(i), 1876(c)(8), and 1891(a)(6), the requirement of this subsection, in addition to paragraph (1), is that a provider of services, MA organization, or prepaid or eligible organization (as the case may be) maintain the following written policies and procedures with respect to all unemancipated minors receiving medical care by or through the provider or organization (or prospective patient or resident, with respect to the provider or organization, who is an unemancipated minor): (A) A do-not-resuscitate order or similar physician’s order shall not be instituted, either orally or in writing, unless at least one parent or legal guardian of such unemancipated minor has first been informed of the physician’s intent to institute such an order and a reasonable attempt has been made to inform the other parent if the other parent is reasonably available and has custodial or visitation rights. Such information must be provided both orally and in writing unless, in reasonable medical judgment, the urgency of the decision requires reliance on only providing the information orally. Oral provision of such information shall include speaking to at least one parent or legal guardian in person or on the telephone, and shall not be limited to recorded voice messages. Provision of such information shall include at least 72 hours of diligent efforts made by the physician or provider to contact and notify at least one parent or legal guardian. The provision of such information shall be contemporaneously recorded in the medical record of the unemancipated minor, specifying by whom and to whom the information was given, the date and time of its provision, and whether it was provided in writing. In the case that only one parent has been informed, the nature of reasonable attempts to inform the other parent or the reason why such attempts were not made shall be contemporaneously recorded in the medical record of the unemancipated minor. (B) Either parent of the unemancipated minor or the unemancipated minor’s guardian may refuse consent for a do-not-resuscitate order or similar physician’s order for the un­e­man­ci­pat­ed minor, either in writing or orally. Any such refusal of consent must be contemporaneously recorded in the medical record of the unemancipated minor. No do-not-resuscitate order or similar physician’s order shall be instituted either orally or in writing if there has been such a refusal of consent. (C) The provider shall not have the authority to require the withholding or withdrawal of life-sustaining procedures from an un­e­man­ci­pat­ed minor over the objection of the parent or legal guardian, unless electronic brain, heart, and respiratory monitoring activity conclusively establishes that the minor has died. There shall be a presumption that the continuation of life is in the minor’s best interest. (D) Within 48 hours of being notified of the intent to institute a do-not-resuscitate order or a similar physician’s order according to subparagraph (A), a parent or legal guardian may request a transfer of the unemancipated minor patient or resident to another facility or discharge. If a transfer is requested by a parent or legal guardian, the hospital or health care facility under whose care the unemancipated minor is admitted must continue provision of artificial life-sustaining procedures and life-sustaining artificial nutrition and hydration for a minimum of 15 days after the transfer request has been made known and make every reasonable effort to assist the requesting parent or legal guardian in the transfer process. The hospital or health care facility’s duties and financial obligations regarding transfer shall be governed by existing State law, applicable rules or regulations, hospital policy, and relevant third-party payment contracts. (E) Upon the request of a patient or resident or a prospective patient or resident, the provider of services or organization shall disclose in writing any policies relating to the patient or resident or the services the patient or resident may receive involving resuscitation or life-sustaining measures, including any policies related to treatments deemed non-beneficial, ineffective, futile or inappropriate, within the provider of services or organization. Nothing in this subparagraph shall require a provider of services or organization to have a written policy relating to or involving resuscitation, life-sustaining or non-beneficial treatment for un­e­man­ci­pat­ed minor patients or adult patients, residents or wards. (6) In applying paragraph (5)(A), a determination based on “reasonable medical judgement” shall not be solely based on disability alone or the view that the life of a person with a disability is of lower value or of lower quality than that of a person without a disability regardless of whether the person’s disability is pre-existing or newly acquired and therefore must not serve as the sole basis for the do-not-resuscitate order or similar physician’s order unless treatment is determined to be physiologically futile and supported with objective evidence that is documented in the patient’s records in writing. . (2) Conforming amendments (A) Section 1866(a)(1)(Q) of the Social Security Act ( 42 U.S.C. 1395cc(a)(1)(Q) ) is amended— (i) by striking requirement and inserting requirements ; and (ii) by inserting and certain do-not-resuscitate orders or similar physician’s orders after advance directives . (B) Section 1819(c)(1)(E) of the Social Security Act ( 42 U.S.C. 1395i–3(c)(1)(E) ) is amended— (i) by striking requirement and inserting requirements ; and (ii) by inserting and certain do-not-resuscitate orders or similar physician’s orders after advance directives . (C) Section 1833(s) of the Social Security Act ( 42 U.S.C. 1395l(s) ) is amended— (i) by striking requirement and inserting requirements ; and (ii) by inserting and certain do-not-resuscitate orders or similar physician’s orders after advance directives . (D) Section 1852(i) of the Social Security Act ( 42 U.S.C. 1395w–22(i) ) is amended— (i) by striking requirement and inserting requirements ; and (ii) by inserting and certain do-not-resuscitate orders or similar physician’s orders after advance directives . (E) Section 1876(c)(8) of the Social Security Act ( 42 U.S.C. 1395mm(c)(8) ) is amended— (i) by striking requirement and inserting requirements ; and (ii) by inserting and certain do-not-resuscitate orders or similar physician’s orders after advance directives . (F) Section 1891(a)(6) of the Social Security Act ( 42 U.S.C. 1395bbb(a)(6) ) is amended— (i) by striking requirement and inserting requirements ; and (ii) by inserting and certain do-not-resuscitate orders or similar physician’s orders after advance directives . (3) Effective date The amendments made by this subsection shall apply with respect to items and services furnished on or after the date that is 90 days after the date of the enactment of this Act. (b) Medicaid State plan requirement (1) In general Section 1902(w) of the Social Security Act ( 42 U.S.C. 1396a(w) ) is amended by adding at the end the following new paragraphs: (6) For purposes of subsection (a)(57) and sections 1903(m)(1)(A) and 1919(c)(2)(E), the requirement of this subsection, in addition to paragraph (1), is that a provider or organization (as the case may be) maintain the following written policies and procedures with respect to all unemancipated minors receiving medical care by or through the provider or organization (or prospective patient or resident, with respect to the provider or organization, who is an unemancipated minor): (A) A do-not-resuscitate order or similar physician’s order shall not be instituted, either orally or in writing, unless at least one parent or legal guardian of such unemancipated minor has first been informed of the physician’s intent to institute such an order and a reasonable attempt has been made to inform the other parent if the other parent is reasonably available and has custodial or visitation rights. Such information must be provided both orally and in writing unless, in reasonable medical judgment, the urgency of the decision requires reliance on only providing the information orally. Oral provision of such information shall include speaking to at least one parent or legal guardian in person or on the telephone, and shall not be limited to recorded voice messages. Provision of such information shall include at least 72 hours of diligent efforts made by the physician or provider to contact and notify at least one parent or legal guardian. The provision of such information shall be contemporaneously recorded in the medical record of the unemancipated minor, specifying by whom and to whom the information was given, the date and time of its provision, and whether it was provided in writing. In the case that only one parent has been informed, the nature of reasonable attempts to inform the other parent or the reason why such attempts were not made shall be contemporaneously recorded in the medical record of the unemancipated minor. (B) Either parent of the unemancipated minor or the unemancipated minor’s guardian may refuse consent for a do-not-resuscitate order or similar physician’s order for the un­e­man­ci­pat­ed minor, either in writing or orally. Any such refusal of consent must be contemporaneously recorded in the medical record of the unemancipated minor. No do-not-resuscitate order or similar physician’s order shall be instituted either orally or in writing if there has been such a refusal of consent. (C) The provider shall not have the authority to require the withholding or withdrawal of life-sustaining procedures from an un­e­man­ci­pat­ed minor over the objection of the parent or legal guardian, unless electronic brain, heart, and respiratory monitoring activity conclusively establishes that the minor has died. There shall be a presumption that the continuation of life is in the minor’s best interest. (D) Within 48 hours of being notified of the intent to institute a do-not-resuscitate order or a similar physician’s order according to subparagraph (A), a parent or legal guardian may request a transfer of the unemancipated minor patient or resident to another facility or discharge. If a transfer is requested by a parent or legal guardian, the hospital or health care facility under whose care the unemancipated minor is admitted must continue provision of artificial life-sustaining procedures and life-sustaining artificial nutrition and hydration for a minimum of 15 days after the transfer request has been made known and make every reasonable effort to assist the requesting parent or legal guardian in the transfer process. The hospital or health care facility’s duties and financial obligations regarding transfer shall be governed by existing State law, applicable rules or regulations, hospital policy, and relevant third-party payment contracts. (E) Upon the request of a patient or resident or a prospective patient or resident, the provider of services or organization shall disclose in writing any policies relating to the patient or resident or the services the patient or resident may receive involving resuscitation or life-sustaining measures, including any policies related to treatments deemed non-beneficial, ineffective, futile or inappropriate, within the provider of services or organization. Nothing in this subparagraph shall require a provider of services or organization to have a written policy relating to or involving resuscitation, life-sustaining or non-beneficial treatment for un­e­man­ci­pat­ed minor patients or adult patients, residents or wards. (7) In applying paragraph (6)(A), a determination based on “reasonable medical judgement” shall not be solely based on disability alone or the view that the life of a person with a disability is of lower value or of lower quality than that of a person without a disability regardless of whether the person’s disability is pre-existing or newly acquired and therefore must not serve as the sole basis for the do-not-resuscitate order or similar physician’s order unless treatment is determined to be physiologically futile and supported with objective evidence that is documented in the patient’s records in writing. . (2) Conforming amendments (A) Section 1903(m)(1)(A) of the Social Security Act ( 42 U.S.C. 1396b(m)(1)(A) ) is amended in the matter preceding clause (i), by striking requirement and inserting requirements . (B) Section 1919(c)(2)(E) of the Social Security Act ( 42 U.S.C. 1396r(c)(2)(E) ) is amended— (i) by striking requirement and inserting requirements ; and (ii) by inserting and certain do-not-resuscitate orders or similar physician’s orders after advance directives . (3) Effective date (A) In general Except as provided in paragraph (2), the amendments made by this subsection shall take effect on the date of the enactment of this Act and shall apply to services furnished on or after the date that is 90 days after the date of the enactment of this Act. (B) Exception if State legislation required In the case of a State plan for medical assistance under title XIX of the Social Security Act which the Secretary of Health and Human Services determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirement imposed by the amendments made by this subsection, the State plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet this additional requirement before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of such session shall be deemed to be a separate regular session of the State legislature.