H.R. 410: Protecting Life Until Natural
Death Act
Text of the Bill
www.congress.gov/bill/115th-congress/housebill/410/text
Sponsor
Steve King (R-IA)
Cosponsors
No original cosponsors.
Current Status
Introduced 1/10/17 and referred to the House
Committee on Energy & Commerce and the House
Committee on Ways & Means. It is awaiting action in
both committees.
Summary of Provisions of H.R. 410
H.R. 410 would eliminate coverage of the advance
care planning (ACP) counseling services authorized by
Medicare on January 1, 2016. A physician who provided ACP counseling services to a person who asked
for this assistance would no longer be able to bill
Medicare for the service. The legislation does leave in
place advance care planning for pre-hospice evaluation. 223,000 people have used the ACP counseling
services in the first half of 2016. If this legislation
became law, it would greatly reduce the ability for
Medicare beneficiaries to access advance care planning. Compassion & Choices opposes H.R. 410.
Current Law
»» In its 1990 decision in the Cruzan case, the United
States Supreme Court acknowledged that a person
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CompassionAndChoices.org
2.28.17
has a right under the United States Constitution to
refuse unwanted medical treatment.1
»» Since 1991, federal law has required Medicare-
certified hospitals, nursing homes, home health
agencies and hospices to inform patients of their
advance care planning rights under state law,
including their right to refuse treatment and right
to create an advance directive. These providers
must prominently note whether a patient has an
advance directive in the patient’s medical record.2
»» Since 2005, Medicare law has compensated
physicians for providing “pre-hospice evaluation
and counseling services” to patients who have
been diagnosed as terminally ill if they have not
previously elected to enroll in a hospice.3 This
“pre-hospice” Medicare payment is for a one-time
physician evaluation of the patient’s pain control
and symptom management, and may include
counseling of patients about the availability of
hospice care and their advance care planning needs.
»» On January 1, 2016, Medicare joined private
insurers in offering to pay physicians (and other
qualified health professionals) for providing advance care planning counseling to Medicare beneficiaries. The policy permits physicians to submit
claims for Medicare payment under two payment
codes4 for a voluntary “discussion about future
care decisions that may need to be made, how
the beneficiary can let others know about [their]
care preferences, and explanation of advance
directives, which may involve the completion of
standard forms.” Medicare enrollees may include
a family member or surrogate in an advance care
planning (ACP) conversation with their physician.
»» ACP counseling conversations are voluntary. There
»»
payment codes used by private insurers to cover
voluntary ACP counseling sessions.
is no obligation for a patient to engage in such a
conversation, and there is no requirement for a
physician to offer counseling.5
»» Erect a financial barrier to access to advance care
ACP conversations can take place in a hospital,
physician office or other setting such as a nursing
home, federally qualified health center or rural
health center.
»» Explicitly prohibit Medicare payment for advance
deductible and copayment for ACP counseling
services, just as they must for any outpatient
physician appointment, unless the ACP counseling
services are provided during the enrollee’s Medicare “Annual Wellness Visit” (AWV). If an ACP
consultation does occur during the AWV, the physician may bill Medicare for both the AWV and the
ACP consultation as covered preventive services,
and the patient does not have to pay deductible
and copayment charges for the ACP (there is no
copay or deductible for services provided as part
of the AWV).
Compassion & Choices’ Position
»» The Medicare enrollee must pay a Medicare Part B
»» A Medicare enrollee may receive ACP counseling
services as often as needed; however, the beneficiary may receive the counseling for free (with zero
cost-sharing) only during the Medicare Wellness
Visit, which can occur just once per year. If a patient needs several counseling sessions the physician must document the reason, such as a change
in the person’s health status or care preferences.
planning services that 84% of all Americans would
feel comfortable having with their doctor.6
care planning services provided to beneficiaries
prior to their receiving a diagnosis of terminal illness.
HR 410 is legislation that hurts our families and loved
ones. Nearly 14,000 providers and roughly 223,000
patients from January through June of 2016 have
utilized the counseling sessions. Use of the counseling sessions is on track to outpace an estimate by the
American Medical Association, which projected that
about 300,000 patients would receive the service in
the first year.7 HR 410 discourages important conversations that need to take place between doctors
and patients so patients learn about their advance
care options and make fully informed decisions about
which options they want. Private insurers have acknowledged the importance of these vital services by
including them in their coverage plans. It is difficult to
see the justification for this legislation.
Additional Resources
»» A non physician practitioner may provide and bill »» www.congress.gov
https://www.congress.gov/bill/115th-congress/
Medicare for ACP counseling services if they are
legally allowed to provide counseling services
under the “scope of practice” law for their profession in their state, if directly supervised by a
physician, and if the practitioner is among those
already permitted to bill Medicare for other clinical services under current law (i.e., a nurse practitioner, physician assistant, clinical nurse specialist).
Changes in Law Proposed in This
Legislation
H.R. 410 would:
»» Amend current federal law to override Medicare’s
administrative decision to adopt the updated
house-bill/410/all-info
»» Medicare statute
https://www.ssa.gov/OP_Home/ssact/title18/1800.htm
1. “A competent person has a liberty interest under the Due
Process Clause in refusing unwanted medical treatment.” Cruzan
v. Director, Missouri Department of Health (497 U.S. 261, June 25,
1990)
2. Section 4206 of the Omnibus Budget Reconciliation Act of
1990 (OBRA 90) enacted the Patient Self Determination Act
(PSDA). The legislation took effect in December 1991, requiring
Medicare and Medicaid health maintenance organizations and
certified providers (hospitals, critical access hospitals, nursing
facilities, home health agencies, hospices and others) to inform
patients at the time of admission of their right to have an advance
directive, to disclose the institution’s policies regarding adherence to an advance directive, and to note in the medical record
whether the patient has an advance directive in effect at the time
of admission. Interpretive Guidelines subsequently published by
the CMS directed State and federal inspectors to ensure that the
content of the advance directive is incorporated into the medical
record at both hospitals and nursing homes.
3. Section 512 of the Medicare Prescription Drug Improvement
and Modernization Act of 2003 amended the Social Security
Act to provide payment to a hospice for a one-time hospice
“pre-election evaluation and counseling” service furnished by a
physician who is either the medical director or employee of the
hospice agency.
4. The payment codes were developed as part of a routine update process in 2014 by the Current Procedural Terminology (CPT)
code Editorial Committee of the American Medical Association.
The Committee is responsible for maintaining, revising, updating or modifying the CPT code set used by public and private
insurers as the basis for payment of health professionals’ services.
The panel comprises 17 members, including eleven physicians
who are nominated by national medical specialty societies and
approved by the AMA Board of Trustees, including one physician
each nominated from Blue Cross and Blue Shield Association, the
America’s Health Insurance Plans, the American Hospital Association, and the Centers for Medicare and Medicaid Services (CMS).
Six other members are chosen from performance measures development organizations and the CPT Health Care Professionals
Advisory Committee.
5. Evidence suggests these conversations rarely occur, even
though most people, including physicians, agree they are important and helpful conversations that should be facilitated by
Medicare payment.
6. Kaiser Family Foundation Poll. September, 2015. Available from
http://kff.org/health-costs/poll-finding/kaiser-health-tracking-pollseptember-2015
7. Kaiser Health News. February, 2017. Available from http://
khn.org/news/docs-bill-medicare-for-end-of-life-advice-as-deathpanel-fears-reemerge