Sec. 131. 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 (B), by inserting and if presented by the individual, to include the content of such advance directive in a prominent part of such record before the semicolon at the end; in subparagraph (D), by striking and after the semicolon at the end; in subparagraph (E), by striking the period at the end and inserting ; and ; and by inserting after subparagraph

(E)the following new subparagraph: to provide each individual with the opportunity to discuss issues relating to the information provided to that individual pursuant to subparagraph

(A)with an appropriately trained professional. ; and by adding at the end the following new paragraph: An advance directive validly executed outside of the State in which such advance directive is presented by an adult individual to a provider of services, a Medicare Advantage organization, or a prepaid or eligible organization shall be given the same effect by that provider or organization as an advance directive validly executed under the law of the State in which it is presented would be given effect. The definition of an advanced directive shall also include actual knowledge of instructions made while an individual was able to express the wishes of such individual with regard to health care. For purposes of clause (i), the term actual knowledge means the possession of information of an individual’s wishes communicated to the health care provider orally or in writing by the individual, the individual’s medical power of attorney representative, the individual’s health care surrogate, or other individuals resulting in the health care provider’s personal cognizance of these wishes. Other forms of imputed knowledge are not actual knowledge. The provisions of this paragraph shall preempt any State law to the extent such law is inconsistent with such provisions. The provisions of this paragraph shall not preempt any State law that provides for greater portability, more deference to a patient’s wishes, or more latitude in determining a patient’s wishes. . Section 1902(w) of the Social Security Act (42 U.S.C. 1396a(w)) is amended— in paragraph (1)— in subparagraph (B)— by striking in the individual’s medical record and inserting in a prominent part of the individual’s current medical record ; and by inserting and if presented by the individual, to include the content of such advance directive in a prominent part of such record before the semicolon at the end; in subparagraph (D), by striking and after the semicolon at the end; in subparagraph (E), by striking the period at the end and inserting ; and ; and by inserting after subparagraph

(E)the following new subparagraph: to provide each individual with the opportunity to discuss issues relating to the information provided to that individual pursuant to subparagraph

(A)with an appropriately trained professional. ; and by adding at the end the following paragraph: An advance directive validly executed outside of the State in which such advance directive is presented by an adult individual to a provider or organization shall be given the same effect by that provider or organization as an advance directive validly executed under the law of the State in which it is presented would be given effect. The definition of an advance directive shall also include actual knowledge of instructions made while an individual was able to express the wishes of such individual with regard to health care. For purposes of clause (i), the term actual knowledge means the possession of information of an individual’s wishes communicated to the health care provider orally or in writing by the individual, the individual’s medical power of attorney representative, the individual’s health care surrogate, or other individuals resulting in the health care provider’s personal cognizance of these wishes. Other forms of imputed knowledge are not actual knowledge. The provisions of this paragraph shall preempt any State law to the extent such law is inconsistent with such provisions. The provisions of this paragraph shall not preempt any State law that provides for greater portability, more deference to a patient’s wishes, or more latitude in determining a patient’s wishes. . Section 2107(e)(1) of the Social Security Act ( 42 U.S.C. 1397gg(e)(1) ) is amended— by redesignating subparagraphs

(G)through

(O)as subparagraphs

(H)through (P), respectively; and by inserting after subparagraph

(F)the following: Section 1902(w) (relating to advance directives). . The Secretary shall conduct a study regarding the implementation of the amendments made by subsections

(a)and (b). Not later than 18 months after the date of enactment of this Act, the Secretary shall submit to Congress a report on the study conducted under paragraph (1), together with recommendations for such legislation and administrative actions as the Secretary considers appropriate. Subject to paragraph (2), the amendments made by subsections (a), (b), and

(c)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. ) and State child health plans under title XXI of such Act ( 42 U.S.C. 1397aa et seq. ), on or after such date as the Secretary specifies, but in no case may such date be later than 1 year after the date of enactment of this Act. In the case of a State plan under title XIX of the Social Security Act or a State child health plan under title XXI of such Act which the Secretary determines requires State legislation in order for the plan to meet the additional requirements imposed by the amendments made by subsections

(b)and (c), 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 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. 131

Portability of advance directives

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