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    Health Care Assurance Act of 2001 (Introduced in the Senate)

    TITLE VI--PATIENT'S RIGHT TO DECLINE MEDICAL TREATMENT

    SEC. 601. PATIENT'S RIGHT TO DECLINE MEDICAL TREATMENT.

    (a) RIGHT TO DECLINE MEDICAL TREATMENT-

    (1) RIGHTS OF COMPETENT ADULTS-

    (A) IN GENERAL- Except as provided in subparagraph (B), a State may

    not restrict the right of a competent adult to consent to, or to decline,

    medical treatment.

    (B) LIMITATIONS-

    (i) AFFECT ON THIRD PARTIES- A State may impose limitations on

    the right of a competent adult to decline treatment if such limitations

    protect third parties (including minor children) from harm.

    (ii) TREATMENT WHICH IS NOT MEDICALLY INDICATED- Nothing in

    this subsection shall be construed to require that any individual be

    offered, or to state that any individual may demand, medical

    treatment which the health care provider does not have available, or

    which is, under prevailing medical standards, either futile or

    otherwise not medically indicated.

    (2) RIGHTS OF INCAPACITATED ADULTS-

    (A) IN GENERAL- Except as provided in subparagraph (B)(i) of paragraph

    (1), States may not restrict the right of an incapacitated adult to consent

    to, or to decline, medical treatment as exercised through the documents

    specified in this paragraph, or through similar documents or other

    written methods of directive which evidence the adult's treatment

    choices.

    (B) ADVANCE DIRECTIVES AND POWERS OF ATTORNEY-

    (i) IN GENERAL- In order to facilitate the communication, despite

    incapacity, of an adult's treatment choices, the Secretary of Health

    and Human Services (referred to in this section as the `Secretary'),

    in consultation with the Attorney General, shall develop a national

    advance directive form that--

    (I) shall not limit or otherwise restrict, except as provided in

    subparagraph (B)(i) of paragraph (1), an adult's right to consent

    to, or to decline, medical treatment; and

    (II) shall, at minimum--

    (aa) provide the means for an adult to declare such adult's own treatment choices
    in the event of a terminal condition;

    (bb) provide the means for an adult to declare, at such adult's option, treatment
    choices in the event of other conditions which are medically incurable, and from
    which such adult likely will not recover; and

    (cc) provide the means by which an adult may, at such adult's option, declare such
    adult's wishes with respect to all forms of medical treatment, including forms of
    medical treatment such as the provision of nutrition and hydration by artificial
    means which may be, in some circumstances, relatively nonburdensome.

    (ii) NATIONAL DURABLE POWER OF ATTORNEY FORM- The Secretary,

    in consultation with the Attorney General, shall develop a national

    durable power of attorney form for health care decisionmaking. The

    form shall provide a means for any adult to designate another adult

    or adults to exercise the same decisionmaking powers which would

    otherwise be exercised by the patient if the patient were competent.

    (iii) HONORED BY ALL HEALTH CARE PROVIDERS- The national

    advance directive and durable power of attorney forms developed by

    the Secretary shall be honored by all health care providers.

    (iv) LIMITATIONS- No individual shall be required to execute an

    advance directive. This section makes no presumption concerning the

    intention of an individual who has not executed an advance directive.

    An advance directive shall be sufficient, but not necessary, proof of

    an adult's treatment choices with respect to the circumstances

    addressed in the advance directive.

    (C) DEFINITION- For purposes of this paragraph, the term `incapacity'

    means the inability to understand or to communicate concerning the

    nature and consequences of a health care decision (including the

    intended benefits and foreseeable risks of, and alternatives to, proposed

    treatment options), and to reach an informed decision concerning health

    care.

    (3) HEALTH CARE PROVIDERS-

    (A) IN GENERAL- No health care provider may provide treatment to an

    adult contrary to the adult's wishes as expressed personally, by an

    advance directive as provided for in paragraph (2)(B), or by a similar

    written advance directive form or another written method of directive

    which clearly and convincingly evidence the adult's treatment choices. A

    health care provider who acts in good faith pursuant to the preceding

    sentence shall be immune from criminal or civil liability or discipline for

    professional misconduct.

    (B) HEALTH CARE PROVIDERS UNDER THE MEDICARE AND MEDICAID

    PROGRAMS- Any health care provider who knowingly provides services

    to an adult contrary to the adult's wishes as expressed personally, by an

    advance directive as provided for in paragraph (2)(B), or by a similar

    written advance directive form

    or another written method of directive which clearly and convincingly evidence the
    adult's treatment choices, shall be denied payment for such services under titles
    XVIII and XIX of the Social Security Act.

    (C) TRANSFERS- Health care providers who object to the provision of

    medical care in accordance with an adult's wishes shall transfer the adult

    to the care of another health care provider.

    (4) DEFINITION- For purposes of this subsection, the term `adult' means--

    (A) an individual who is 18 years of age or older; or

    (B) an emancipated minor.

    (b) FEDERAL RIGHT ENFORCEABLE IN FEDERAL COURTS- The rights recognized

    in this section may be enforced by filing a civil action in an appropriate district

    court of the United States.

    (c) SUICIDE AND HOMICIDE- Nothing in this section shall be construed to

    permit, condone, authorize, or approve suicide or mercy killing, or any

    affirmative act to end a human life.

    (d) RIGHTS GRANTED BY STATES- Nothing in this section shall impair or

    supersede rights granted by State law which exceed the rights recognized by

    this section.

    (e) EFFECT ON OTHER LAWS-

    (1) IN GENERAL- Except as specified in paragraph (2), written policies and

    written information adopted by health care providers pursuant to sections

    4206 and 4751 of the Omnibus Budget Reconciliation Act of 1990 (Public

    Law 101-508), shall be modified within 6 months after the enactment of this

    section to conform to the provisions of this section.

    (2) DELAY PERIOD FOR UNIFORM FORMS- Health care providers shall

    modify any written forms distributed as written information under sections

    4206 and 4751 of the Omnibus Budget Reconciliation Act of 1990 (Public

    Law 101-508) not later than 6 months after promulgation of the forms

    referred to in clauses (i) and (ii) of subsection (a)(2)(B) by the Secretary.

    (f) INFORMATION PROVIDED TO CERTAIN INDIVIDUALS- The Secretary shall

    provide on a periodic basis written information regarding an individual's right to

    consent to, or to decline, medical treatment as provided in this section to

    individuals who are beneficiaries under titles II, XVI, XVIII, and XIX of the

    Social Security Act.

    (g) RECOMMENDATIONS TO CONGRESS ON ISSUES RELATING TO A PATIENT'S

    RIGHT OF SELF-DETERMINATION- Not later than 180 days after the date of the

    enactment of this Act, and annually thereafter for a period of 3 years, the

    Secretary shall provide recommendations to Congress concerning the medical,

    legal, ethical, social, and educational issues related to in this section. In

    developing recommendations under this subsection the Secretary shall address

    the following issues:

    (1) The contents of the forms referred to in clauses (i) and (ii) of subsection

    (a)(2)(B).

    (2) Issues pertaining to the education and training of health care

    professionals concerning patients' self-determination rights.

    (3) Issues pertaining to health care professionals' duties with respect to

    patients' rights, and health care professionals' roles in identifying, assessing,

    and presenting for patient consideration medically indicated treatment

    options.

    (4) Issues pertaining to the education of patients concerning their rights to

    consent to, and decline, treatment, including how individuals might best be

    informed of such rights prior to hospitalization and how uninsured

    individuals, and individuals not under the regular care of a physician or

    another provider, might best be informed of their rights.

    (5) Issues relating to appropriate standards to be adopted concerning

    decisionmaking by incapacitated adult patients whose treatment choices are

    not known.

    (6) Such other issues as the Secretary may identify.

    (h) EFFECTIVE DATE-

    (1) IN GENERAL- Except as provided in paragraph (2), this section shall take

    effect on the date that is 6 months after the date of enactment of this Act.

    (2) SUBSECTION (g)- The provisions of subsection (g) shall take effect on

    the date of enactment of this Act.