S.Amdt. 3238

SA 3238. Mr. ROCKEFELLER (for himself, Mr. Kohl, Mr. Carper, and Mr.
Warner) submitted an amendment intended to be proposed to amendment SA
2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. Dodd, and Mr.
Harkin) to the bill H.R. 3590, to amend the Internal Revenue Code of
1986 to modify the first-time homebuyers credit in the case of members
of the Armed Forces and certain other Federal employees, and for other
purposes; which was ordered to lie on the table; as follows:

On page 2074, after line 25, add the following:
TITLE X--COVERAGE OF ADVANCE CARE PLANNING

SEC. 10001. MEDICARE, MEDICAID, AND CHIP COVERAGE.

(a) Medicare.--
(1) In general.--Section 1861 of the Social Security Act
(42 U.S.C. 1395x), as amended by section 4103, is amended--
(A) in subsection (s)(2)--
(i) by striking ``and'' at the end of subparagraph (EE);
(ii) by adding ``and'' at the end of subparagraph (FF); and
(iii) by adding at the end the following new subparagraph:
``(GG) voluntary advance care planning consultation (as
defined in subsection (iii)(1));''; and
(B) by adding at the end the following new subsection:

``Voluntary Advance Care Planning Consultation

``(iii)(1) Subject to paragraphs (3) and (4), the term
`voluntary advance care planning consultation' means an
optional consultation between the individual and a
practitioner described in paragraph (2) regarding advance
care planning, if, subject to subparagraphs (A) and (B) of
paragraph (3), the individual involved has not had such a
consultation within the last 5 years. Such consultation shall
include the following:
``(A) An explanation by the practitioner of advance care
planning, including key questions and considerations,
important steps, and suggested people to talk to.
``(B) An explanation by the practitioner of advance
directives, including living wills and durable powers of
attorney, and their uses.
``(C) An explanation by the practitioner of the role and
responsibilities of a health care proxy.
``(D) The provision by the practitioner of a list of
national and State-specific resources to assist consumers and
their families with advance care planning, including the
national toll-free hotline, the advance care planning
clearinghouses, and State legal service organizations
(including those funded through the Older Americans Act).
``(E) An explanation by the practitioner of the continuum
of end-of-life services and supports available, including
palliative care and hospice, and benefits for such services
and supports that are available under this title.
``(F)(i) Subject to clause (ii), an explanation of orders
regarding life sustaining treatment or similar orders, which
shall include--
``(I) the reasons why the development of such an order is
beneficial to the individual and the individual's family and
the reasons why such an order should be updated periodically
as the health of the individual changes;
``(II) the information needed for an individual or legal
surrogate to make informed

[[Page S13267]]

decisions regarding the completion of such an order; and
``(III) the identification of resources that an individual
may use to determine the requirements of the State in which
such individual resides so that the treatment wishes of that
individual will be carried out if the individual is unable to
communicate those wishes, including requirements regarding
the designation of a surrogate decisionmaker (also known as a
health care proxy).
``(ii) The Secretary may limit the requirement for
explanations under clause (i) to consultations furnished in
States, localities, or other geographic areas in which orders
described in such clause have been widely adopted.
``(2) A practitioner described in this paragraph is--
``(A) a physician (as defined in subsection (r)(1)); and
``(B) a nurse practitioner or physician's assistant who has
the authority under State law to sign orders for life
sustaining treatments.
``(3)(A) An initial preventive physical examination under
subsection (ww), including any related discussion during such
examination, shall not be considered an advance care planning
consultation for purposes of applying the 5-year limitation
under paragraph (1).
``(B) A voluntary advance care planning consultation with
respect to an individual shall be conducted more frequently
than provided under paragraph (1) if there is a significant
change in the health condition of the individual, including
diagnosis of a chronic, progressive, life-limiting disease, a
life-threatening or terminal diagnosis or life-threatening
injury, or upon admission to a skilled nursing facility, a
long-term care facility (as defined by the Secretary), or a
hospice program.
``(4) A consultation under this subsection may include the
formulation of an order regarding life sustaining treatment
or a similar order.
``(5)(A) For purposes of this section, the term `order
regarding life sustaining treatment' means, with respect to
an individual, an actionable medical order relating to the
treatment of that individual that--
``(i) is signed and dated by a physician (as defined in
subsection (r)(1)) or another health care professional (as
specified by the Secretary and who is acting within the scope
of the professional's authority under State law in signing
such an order) and is in a form that permits it to stay with
the patient and be followed by health care professionals and
providers across the continuum of care, including home care,
hospice, long-term care, community and assisted living
residences, skilled nursing facilities, inpatient
rehabilitation facilities, hospitals, and emergency medical
services;
``(ii) effectively communicates the individual's
preferences regarding life sustaining treatment, including an
indication of the treatment and care desired by the
individual;
``(iii) is uniquely identifiable and standardized within a
given locality, region, or State (as identified by the
Secretary);
``(iv) is portable across care settings; and
``(v) may incorporate any advance directive (as defined in
section 1866(f)(3)) if executed by the individual.
``(B) The level of treatment indicated under subparagraph
(A)(ii) may range from an indication for full treatment to an
indication to limit some or all or specified interventions.
Such indicated levels of treatment may include indications
respecting, among other items--
``(i) the intensity of medical intervention if the patient
is pulseless, apneic, or has serious cardiac or pulmonary
problems;
``(ii) the individual's desire regarding transfer to a
hospital or remaining at the current care setting;
``(iii) the use of antibiotics; and
``(iv) the use of artificially administered nutrition and
hydration.''.
(2) Payment.--Section 1848(j)(3) of the Social Security Act
(42 U.S.C. 1395w-4(j)(3)), as amended by section 4103(c)(2),
is amended by inserting ``(2)(GG),'' after ``(2)(FF)
(including administration of the health risk assessment),''.
(3) Frequency limitation.--Section 1862(a) of the Social
Security Act (42 U.S.C. 1395y(a)(1)), as amended by section
4103(d), is amended--
(A) in paragraph (1)--
(i) in subparagraph (O), by striking ``and'' at the end;
(ii) in subparagraph (P) by striking the semicolon at the
end and inserting ``, and''; and
(iii) by adding at the end the following new subparagraph:
``(Q) in the case of advance care planning consultations
(as defined in section 1861(iii)(1)), which are performed
more frequently than is covered under such section;''; and
(B) in paragraph (7), by striking ``or (P)'' and inserting
``(P), or (Q)''.
(4) Effective date.--The amendments made by this subsection
shall apply to consultations furnished on or after January 1,
2011 .
(b) Medicaid.--
(1) Mandatory benefit.--Section 1902(a)(10)(A) of the
Social Security Act (42 U.S.C. 1396a(a)(10)(A)), as amended
by section 2301(b), is amended in the matter preceding clause
(i) by striking ``and (28)'' and inserting ``, (28), and
(29)''.
(2) Medical assistance.--Section 1905 of such Act (42
U.S.C. 1396d), as amended by sections 2001(a)(3), 2006, and
2301(a)(1), is amended--
(A) in subsection (a)--
(i) in paragraph (28), by striking ``and'' at the end;
(ii) by redesignating paragraph (29) as paragraph (30); and
(iii) by inserting after paragraph (28) the following new
paragraph:
``(29) advance care planning consultations (as defined in
subsection (z));''; and
(B) by inserting after subsection (y) the following new
subsection:
``(z)(1) For purposes of subsection (a)(28), the term
`voluntary advance care planning consultation' means an
optional consultation between the individual and a
practitioner described in paragraph (2) regarding advance
care planning, if, subject to paragraph (3), the individual
involved has not had such a consultation within the last 5
years. Such consultation shall include the following:
``(A) An explanation by the practitioner of advance care
planning, including key questions and considerations,
important steps, and suggested people to talk to.
``(B) An explanation by the practitioner of advance
directives, including living wills and durable powers of
attorney, and their uses.
``(C) An explanation by the practitioner of the role and
responsibilities of a health care proxy.
``(D) The provision by the practitioner of a list of
national and State-specific resources to assist consumers and
their families with advance care planning, including the
national toll-free hotline, the advance care planning
clearinghouses, and State legal service organizations
(including those funded through the Older Americans Act).
``(E) An explanation by the practitioner of the continuum
of end-of-life services and supports available, including
palliative care and hospice, and benefits for such services
and supports that are available under this title.
``(F)(i) Subject to clause (ii), an explanation of orders
for life sustaining treatments or similar orders, which shall
include--
``(I) the reasons why the development of such an order is
beneficial to the individual and the individual's family and
the reasons why such an order should be updated periodically
as the health of the individual changes;
``(II) the information needed for an individual or legal
surrogate to make informed decisions regarding the completion
of such an order; and
``(III) the identification of resources that an individual
may use to determine the requirements of the State in which
such individual resides so that the treatment wishes of that
individual will be carried out if the individual is unable to
communicate those wishes, including requirements regarding
the designation of a surrogate decisionmaker (also known as a
health care proxy).
``(ii) The Secretary may limit the requirement for
explanations under clause (i) to consultations furnished in
States, localities, or other geographic areas in which orders
described in such clause have been widely adopted.
``(2) A practitioner described in this paragraph is--
``(A) a physician (as defined in section 1861(r)(1)); and
``(B) a nurse practitioner or physician's assistant who has
the authority under State law to sign orders for life
sustaining treatments.
``(3) A voluntary advance care planning consultation with
respect to an individual shall be conducted more frequently
than provided under paragraph (1) if there is a significant
change in the health condition of the individual including
diagnosis of a chronic, progressive, life-limiting disease, a
life-threatening or terminal diagnosis or life-threatening
injury, or upon admission to a nursing facility, a long-term
care facility (as defined by the Secretary), or a hospice
program.
``(4) A consultation under this subsection may include the
formulation of an order regarding life sustaining treatment
or a similar order.
``(5) For purposes of this subsection, the term `orders
regarding life sustaining treatment' has the meaning given
that term in section 1861(iii)(5).''.
(c) CHIP.--
(1) Child health assistance.--Section 2110(a) of the Social
Security Act (42 U.S.C. 1397jj) is amended--
(A) by redesignating paragraph (28) as paragraph (29); and
(B) by inserting after paragraph (27), the following:
``(28) Voluntary advance care planning consultations (as
defined in section 1905(z)).''.
(2) Mandatory coverage.--
(A) In general.--Section 2103 of such Act (42 U.S.C.
1397cc), is amended--
(i) in subsection (a), in the matter preceding paragraph
(1), by striking ``and (7)'' and inserting ``(7), and (9)'';
and
(ii) in subsection (c), by adding at the end the following:
``(9) End-of-life care.--The child health assistance
provided to a targeted low-income child shall include
coverage of voluntary advance care planning consultations (as
defined in section 1905(z) and at the same payment rate as
the rate that would apply to such a consultation under the
State plan under title XIX).''.
(B) Conforming amendment.--Section 2102(a)(7)(B) of such
Act (42 U.S.C.

[[Page S13268]]

1397bb(a)(7)(B)) is amended by striking ``section
2103(c)(5)'' and inserting ``paragraphs (5) and (9) of
section 2103(c)''.
(d) Definition of Advance Directive Under Medicare,
Medicaid, and CHIP.--
(1) Medicare.--Section 1866(f)(3) of the Social Security
Act (42 U.S.C. 1395cc(f)(3)) is amended by striking ``means''
and all that follows through the period and inserting ``means
a living will, medical directive, health care power of
attorney, durable power of attorney, or other written
statement by a competent individual that is recognized under
State law and indicates the individual's wishes regarding
medical treatment in the event of future incompetence. Such
term includes an advance health care directive and a health
care directive recognized under State law.''.
(2) Medicaid and chip.--Section 1902(w)(4) of such Act (42
U.S.C. 1396a(w)(4)) is amended by striking ``means'' and all
that follows through the period and inserting ``means a
living will, medical directive, health care power of
attorney, durable power of attorney, or other written
statement by a competent individual that is recognized under
State law and indicates the individual's wishes regarding
medical treatment in the event of future incompetence. Such
term includes an advance health care directive and a health
care directive recognized under State law.''.
(e) Rule of Construction.--A voluntary advance care
planning consultation described under any provision of this
section or amendment made by this section shall be provided
solely at the option of the applicable individual. Nothing in
this section shall be construed to--
(1) require an individual to complete an advance directive,
an order for life-sustaining treatment, or other advance care
planning document;
(2) require an individual to consent to restrictions on the
amount, duration, or scope of medical benefits that such
individual is entitled to receive through any program under
titles XVIII, XIX, or XXI of the Social Security Act; or
(3) encourage or promote suicide or assisted suicide.
(f) Effective Date.--The amendments made by this section
take effect January 1, 2010.

SEC. 10002. DISSEMINATION OF ADVANCE CARE PLANNING
INFORMATION.

(a) In General.--A health insurance issuer offering a
qualified health plan--
(1) shall provide for the dissemination of information
related to end-of-life planning to individuals seeking
enrollment in qualified health plans offered through the
Exchange;
(2) shall present such individuals with--
(A) the option to establish advanced directives and
physician's orders for life sustaining treatment according to
the laws of the State in which the individual resides; and
(B) information related to other planning tools; and
(3) shall not promote suicide, assisted suicide,
euthanasia, or mercy killing.

The information presented under paragraph (2) shall not
presume the withdrawal of treatment and shall include end-of-
life planning information that includes options to maintain
all or most medical interventions.
(b) Construction.--Nothing in this section shall be
construed--
(1) to require an individual to complete an advanced
directive or a physician's order for life sustaining
treatment or other end-of-life planning document;
(2) to require an individual to consent to restrictions on
the amount, duration, or scope of medical benefits otherwise
covered under a qualified health plan; or
(3) to promote suicide, assisted suicide, euthanasia, or
mercy killing.
(c) Advanced Directive Defined.--In this section, the term
``advanced directive'' includes a living will, a comfort care
order, or a durable power of attorney for health care.
(d) Prohibition on the Promotion of Assisted Suicide.--
(1) In general.--Subject to paragraph (3), information
provided to meet the requirements of subsection (a)(2) shall
not include advanced directives or other planning tools that
list or describe as an option suicide, assisted suicide,
euthanasia, or mercy killing, regardless of legality.
(2) Construction.--Nothing in paragraph (1) shall be
construed to apply to or affect any option to--
(A) withhold or withdraw of medical treatment or medical
care;
(B) withhold or withdraw of nutrition or hydration; and
(C) provide palliative or hospice care or use an item,
good, benefit, or service furnished for the purpose of
alleviating pain or discomfort, even if such use may increase
the risk of death, so long as such item, good, benefit, or
service is not also furnished for the purpose of causing, or
the purpose of assisting in causing, death, for any reason.
(3) No preemption of state law.--Nothing in this section
shall be construed to preempt or otherwise have any effect on
State laws regarding advance care planning, palliative care,
or end-of-life decision-making.
______