Sec. 7. Improvement of policies related to the use and portability of advance directives
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Section 1866(f) of the Social Security Act (42 U.S.C. 1395cc(f)) is amended— in paragraph (1)— in subparagraph (A)(i), by striking State law and all that follows through medical care and inserting relevant State and Federal law (whether statutory or as recognized by the courts) to make decisions concerning medical care ; by striking subparagraph (B); by redesignating subparagraphs (C), (D), and
(E)as subparagraphs (G), (H), and (I), respectively; by inserting after subparagraph
(A)the following new subparagraphs: to document in a prominent part of the individual's current medical record whether or not the individual has an advance directive or portable treatment order, to request a copy of the advance directive or portable treatment order, as applicable, and if received, to include the copy (or the content of the document or documents) in a prominent part of such record; to provide each individual with the opportunity to discuss the information provided pursuant to subparagraph
(A)with an appropriately trained employee or volunteer of the provider or organization; for an individual with decisional capacity under State law, to follow the individual’s current treatment instructions, as expressed in writing or through verbal or nonverbal communications; for an individual who lacks decisional capacity— to ensure that treatment decisions are made in accordance with current preferences, values, and goals of the individual, when possible to ascertain and follow, and in accordance with current advance directives and portable treatment orders that are valid under State law where the care is delivered, and instructions provided by legally authorized representatives in accordance with State and Federal law; in the absence of a current advance directive or portable treatment order that is valid under State law where the care is delivered, to deliver treatment based on credible evidence of the individual’s treatment preferences, goals, and values, such as a current advance directive or portable treatment order executed in another State or past statements about treatment preferences; and to reconcile actual or suspected discrepancies among advance directives, portable treatment orders, and other evidence in accordance with State law, and, where State law is silent, to reconcile discrepancies in the manner most likely to deliver treatment that is consistent with the individual’s treatment preferences, goals, and values; that specify narrow, but potentially recurring, conditions or circumstances under which an advance directive, portable treatment order, or treatment directions from an individual or legally authorized representative would not be followed, such as— where the validity or authenticity of a document is in question; where there is evidence that an individual’s preferences changed after the individual documented preferences in an advance directive or portable treatment order; where the treatment sought by the individual is not medically indicated; and because of conscience objections in accordance with paragraph (3); ; in subparagraph (H), as redesignated by subparagraph (C), by striking State law and all that follows through respecting and inserting this section and relevant State and Federal law (whether statutory or as recognized by the courts) respecting ; in subparagraph (I), as redesignated by subparagraph (C), by inserting and portable treatment orders before the period at the end; in the flush matter at the end, by striking
(C)and inserting
(G); and by adding at the end the following new sentence: Nothing in subparagraph
(D)or
(E)shall be construed to apply to sterilization or abortion. ; by redesignating paragraphs
(3)and
(4)as paragraphs
(4)and (5), respectively; by inserting after paragraph
(2)the following new paragraph: Nothing in this section shall be construed to prohibit the application of a State law which allows for an objection on the basis of conscience for any health care provider or any agent of such provider which as a matter of conscience cannot implement an advance directive. ; in paragraph (4), as redesignated by paragraph (2)— by striking written ; by striking State law and inserting State or Federal law ; and by striking of the State ; by redesignating paragraph (5), as redesignated by paragraph (2), as paragraph (6); by inserting after paragraph
(4)the following new paragraph: In this subsection, the term portable treatment order means a treatment order designed to document a clinical process that includes shared, informed medical decisionmaking, that reflects the individual’s goals of care and values, and that is designed to apply across care settings, including the home. ; and by inserting after paragraph (6), as redesignated by paragraph (6), the following new paragraph: Nothing in this subsection shall permit the Secretary to seek civil penalties, including exclusion from participation in the program under this title or the program under title XIX, against an individual or entity if the individual or entity— used reasonable efforts to deliver care that is consistent with an individual's goals, preferences, and values when addressing decisionmaking for an individual who lacks decisional capacity; or declined to furnish care in accordance with paragraph (3). . Section 1902(w) of the Social Security Act (42 U.S.C. 1396a(w)) is amended— in paragraph (1)— in subparagraph (A)(i), by striking State law and all that follows through medical care and inserting relevant State and Federal law (whether statutory or as recognized by the courts) to make decisions concerning medical care ; by striking subparagraph (B); by redesignating subparagraphs (C), (D), and
(E)as subparagraphs (F), (G), and (H), respectively; by inserting after subparagraph
(A)the following new subparagraphs: to document in a prominent part of the individual's current medical record whether or not the individual has an advance directive or portable treatment order, to request a copy of the advance directive and or portable treatment order, and if received, to include the copy (or the content of the document or documents) in a prominent part of such record; to provide each individual with the opportunity to discuss the information provided pursuant to subparagraph
(A)with an appropriately trained personnel of the provider or organization; for an individual with decisional capacity under State law, to follow the individual’s current treatment instructions, as expressed in writing or through verbal or non-verbal communications; for an individual who lacks decisional capacity— to ensure that treatment decisions are made in accordance with State law addressing legally authorized representatives and advance directives; in the absence of a current advance directive or portable treatment order, to deliver treatment based on credible evidence of the individual’s treatment preferences, goals, and values, such as an advance directive or portable treatment order executed in another State or past statements about treatment preferences; and to reconcile actual or suspected discrepancies among advance directives, portable treatment orders, and other evidence in accordance with State law, and, where State law is silent, to reconcile discrepancies in the manner most likely to deliver treatment that is consistent with the individual’s treatment preferences, goals, and values; that specify narrow, but potentially recurring, conditions or circumstances under which an advance directive, portable treatment order, or treatment directions from an individual or legally authorized representative would not be followed, such as— where the validity or authenticity of a document is in question; where there is evidence that an individual’s preferences changed after the individual documented preferences in an advance directive or portable treatment order; where the treatment sought by the individual is not medically indicated; and because of conscience objections in accordance with paragraph (3); ; in subparagraph (H), as redesignated by subparagraph (C), by striking State law and all that follows through respecting and inserting this section and relevant State and Federal law (whether statutory or as recognized by the courts) respecting ; in subparagraph (I), as redesignated by subparagraph (C), by inserting and portable treatment orders before the period at the end; in the flush matter at the end, by striking
(C)and inserting
(G); and by adding at the end the following new sentence: Nothing in subparagraph
(D)or
(E)shall be construed to apply to sterilization or abortion. ; and in paragraph (4)— by striking written ; by striking State law and inserting State or Federal law ; and by striking of the State ; by redesignating paragraph
(5)as paragraph (6); by inserting after paragraph
(4)the following new paragraph: In this subsection, the term portable treatment order means a treatment order designed to document a clinical process that includes shared, informed medical decisionmaking, that reflects the individual’s goals of care and values, and that is designed to apply across care settings, including the home. ; and by inserting after paragraph (6), as redesignated by paragraph (3), the following new paragraph: Nothing in this subsection shall permit the Secretary to seek civil penalties, including exclusion from participation in the program under this title or the program under title XVIII, against an individual or entity if the individual or entity— used reasonable efforts to deliver care that is consistent with an individual's goals, preferences, and values when addressing decisionmaking for an individual who lacks decisional capacity; or declined to furnish care in accordance with paragraph (3). . Section 7 of the Assisted Suicide Funding Restriction Act of 1997 ( 42 U.S.C. 14406 ) is amended— in paragraph (1), by striking or at the end; and by striking paragraph
(2)and inserting the following: to require any provider or organization, or any employee of such a provider or organization, to follow or be bound by a request from an individual or legally authorized representative, an advance directive, or a portable treatment order that directs the purposeful causing of, or the purposeful assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing; or to allow discrimination against or imposition of penalties on any provider or organization, or any employee of such a provider or organization, that refuses, for any reason, including an objection based on a religious, conscience, or moral objection, to inform, counsel, or in any way participate in the purposeful causing of, or the purposeful assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing. . Subject to paragraph (2), the amendments made by subsections
(a)and
(b)shall apply to provider agreements and contracts entered into, renewed, or extended under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.), and to State plans under title XIX of such Act ( 42 U.S.C. 1396 et seq. ), on or after such date as the Secretary of Health and Human Services specifies, but in no case may such date be later than 1 year after the date of the enactment of this Act. In the case of a State plan under title XIX of the Social Security Act ( 42 U.S.C. 1396 et seq. ) which the Secretary of Health and Human Services determines requires State legislation in order for the plan to meet the additional requirements imposed by the amendments made by subsection (b), 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 these additional requirements 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 the session is considered to be a separate regular session of the State legislature.
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Sec. 7
Improvement of policies related to the use and portability of advance directives
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