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[COMMITTEE PRINT] 


JANUARY 16, 2009 

1 
SEC. ll. [TABLE OF TITLES IN COMMITTEE PRINT]. 

2 


TITLE III—HEALTH INSURANCE ASSISTANCE FOR THE UNEMPLOYED 
TITLE IV—HEALTH INFORMATION TECHNOLOGY 
TITLE V—MEDICAID PROVISIONS 

3 
TITLE III—HEALTH INSURANCE 
4 
ASSISTANCE FOR THE UNEM5 
PLOYED 
6 
SEC. 3001. SHORT TITLE AND TABLE OF CONTENTS OF 

7 
TITLE. 

8 
(a) SHORT TITLE OF TITLE.—This title may be cited 

9 
as the ‘‘Health Insurance Assistance for the Unemployed 

10 
Act of 2009’’. 

11 
(b) TABLE OF CONTENTS OF TITLE.—The table of 

12 
contents of this title is as follows: 

Sec. 3001. Short title and table of contents of title. 
Sec. 3002. Premium assistance for COBRA benefits and extension of COBRA 
benefits for older or long-term employees. 
Sec. 3003. Temporary optional Medicaid coverage for the unemployed. 

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1 
SEC. 3002. PREMIUM ASSISTANCE FOR COBRA BENEFITS 
2 


AND EXTENSION OF COBRA BENEFITS FOR 

3 


OLDER OR LONG-TERM EMPLOYEES. 

4 


(a) PREMIUM ASSISTANCE FOR COBRA CONTINU5 
ATION COVERAGE FOR INDIVIDUALS AND THEIR FAMI6 
LIES.— 
7 
(1) PROVISION OF PREMIUM ASSISTANCE.— 
8 
(A) REDUCTION OF PREMIUMS PAY9 
ABLE.—In the case of any premium for a pe10 
riod of coverage beginning on or after the date 
11 
of the enactment of this Act for COBRA con12 
tinuation coverage with respect to any assist13 
ance eligible individual, such individual shall be 
14 
treated for purposes of any COBRA continu15 
ation provision as having paid the amount of 
16 
such premium if such individual pays 35 per17 
cent of the amount of such premium (as deter18 
mined without regard to this subsection). 
19 
(B) PREMIUM REIMBURSEMENT.—For pro20 
visions providing the balance of such premium, 
21 


see section 6431 of the Internal Revenue Code 

22 


of 1986, as added by paragraph (12). 

23 


(2) LIMITATION OF PERIOD OF PREMIUM AS


24 


SISTANCE.— 

25 


(A) IN GENERAL.—Paragraph (1)(A) shall 

26 


not apply with respect to any assistance eligible 

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1 


individual for months of coverage beginning on 

2 


or after the earlier of— 

3 


(i) the first date that such individual 

4 


is eligible for coverage under any other 

5 


group health plan (other than coverage 
6 
consisting of only dental, vision, coun7 
seling, or referral services (or a combina8 
tion thereof), coverage under a health re9 
imbursement arrangement or a health 
10 
flexible spending arrangement, or coverage 
11 
of treatment that is furnished in an on-site 
12 
medical facility maintained by the em13 
ployer and that consists primarily of first14 
aid services, prevention and wellness care, 
15 
or similar care (or a combination thereof)) 
16 
or is eligible for benefits under title XVIII 
17 
of the Social Security Act. 
18 
(ii) the earliest of— 
19 
(I) the date which is 12 months 
20 
after the first day of first month that 
21 


paragraph (1)(A) applies with respect 

22 


to such individual, 

23 


(II) the date following the expira


24 


tion of the maximum period of con


25 


tinuation coverage required under the 

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1 


applicable COBRA continuation cov


2 


erage provision, or 

3 


(III) the date following the expi


4 


ration of the period of continuation 

5 


coverage allowed under paragraph 
6 
(4)(B)(ii). 
7 
(B) TIMING OF ELIGIBILITY FOR ADDI8 
TIONAL COVERAGE.—For purposes of subpara9 
graph (A)(i), an individual shall not be treated 
10 
as eligible for coverage under a group health 
11 
plan before the first date on which such indi12 
vidual could be covered under such plan. 
13 
(C) NOTIFICATION REQUIREMENT.—An 
14 
assistance eligible individual shall notify in writ15 
ing the group health plan with respect to which 
16 
paragraph (1)(A) applies if such paragraph 
17 
ceases to apply by reason of subparagraph 
18 
(A)(i). Such notice shall be provided to the 
19 
group health plan in such time and manner as 
20 
may be specified by the Secretary of Labor. 
21 
(3) ASSISTANCE ELIGIBLE INDIVIDUAL.—For 
22 


purposes of this section, the term ‘‘assistance eligible 

23 


individual’’ means any qualified beneficiary if— 

24 


(A) at any time during the period that be


25 


gins with September 1, 2008, and ends with 

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1 


December 31, 2009, such qualified beneficiary 

2 


is eligible for COBRA continuation coverage, 

3 


(B) such qualified beneficiary elects such 

4 


coverage, and 

5 


(C) the qualifying event with respect to the 
6 
COBRA continuation coverage consists of the 
7 
involuntary termination of the covered employ8 
ee’s employment and occurred during such pe9 
riod. 
10 
(4) EXTENSION OF ELECTION PERIOD AND EF11 
FECT ON COVERAGE.— 
12 
(A) IN GENERAL.—Notwithstanding sec13 
tion 605(a) of the Employee Retirement Income 
14 
Security Act of 1974, section 4980B(f)(5)(A) of 
15 
the Internal Revenue Code of 1986, section 
16 
2205(a) of the Public Health Service Act, and 
17 
section 8905a(c)(2) of title 5, United States 
18 
Code, in the case of an individual who is a 
19 
qualified beneficiary described in paragraph 
20 
(3)(A) as of the date of the enactment of this 
21 


Act and has not made the election referred to 

22 


in paragraph (3)(B) as of such date, such indi


23 


vidual may elect the COBRA continuation cov


24 


erage under the COBRA continuation coverage 

25 


provisions containing such sections during the 

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1 


60-day period commencing with the date on 

2 


which the notification required under paragraph 

3 


(7)(C) is provided to such individual. 

4 


(B) COMMENCEMENT OF COVERAGE; NO 

5 


REACH-BACK.—Any COBRA continuation cov6 
erage elected by a qualified beneficiary during 
7 
an extended election period under subparagraph 
8 
(A)— 
9 
(i) shall commence on the date of the 
10 
enactment of this Act, and 
11 
(ii) shall not extend beyond the period 
12 
of COBRA continuation coverage that 
13 
would have been required under the appli14 
cable COBRA continuation coverage provi15 
sion if the coverage had been elected as re16 
quired under such provision. 
17 
(C) PREEXISTING CONDITIONS.—With re18 
spect to a qualified beneficiary who elects 
19 
COBRA continuation coverage pursuant to sub20 
paragraph (A), the period— 
21 


(i) beginning on the date of the quali


22 


fying event, and 

23 


(ii) ending with the day before the 

24 


date of the enactment of this Act, 

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1 


shall be disregarded for purposes of deter


2 


mining the 63-day periods referred to in section 

3 


701)(2) of the Employee Retirement Income 

4 


Security Act of 1974, section 9801(c)(2) of the 

5 


Internal Revenue Code of 1986, and section 
6 
2701(c)(2) of the Public Health Service Act. 
7 
(5) EXPEDITED REVIEW OF DENIALS OF PRE8 
MIUM ASSISTANCE.—In any case in which an indi9 
vidual requests treatment as an assistance eligible 
10 
individual and is denied such treatment by the group 
11 
health plan by reason of such individual’s ineligi12 
bility for COBRA continuation coverage, the Sec13 
retary of Labor (or the Secretary of Health and 
14 
Human services in connection with COBRA continu15 
ation coverage which is provided other than pursu16 
ant to part 6 of subtitle B of title I of the Employee 
17 
Retirement Income Security Act of 1974), in con18 
sultation with the Secretary of the Treasury, shall 
19 
provide for expedited review of such denial. An indi20 
vidual shall be entitled to such review upon applica21 


tion to such Secretary in such form and manner as 

22 


shall be provided by such Secretary. Such Secretary 

23 


shall make a determination regarding such individ


24 


ual’s eligibility within 10 business days after receipt 

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1 


of such individual’s application for review under this 

2 


paragraph. 
3 
(6) DISREGARD OF SUBSIDIES FOR PURPOSES 
4 
OF FEDERAL AND STATE PROGRAMS.—Notwith5 


standing any other provision of law, any premium 
6 
reduction with respect to an assistance eligible indi7 
vidual under this subsection shall not be considered 
8 
income or resources in determining eligibility for, or 
9 
the amount of assistance or benefits provided under, 
10 
any other public benefit provided under Federal law 
11 
or the law of any State or political subdivision there12 
of. 
13 
(7) NOTICES TO INDIVIDUALS.— 
14 
(A) GENERAL NOTICE.— 
15 
(i) IN GENERAL.—In the case of no16 
tices provided under section 606(4) of the 
17 
Employee Retirement Income Security Act 
18 
of 1974 (29 U.S.C. 1166(4)), section 
19 
4980B(f)(6)(D) of the Internal Revenue 
20 
Code of 1986, section 2206(4) of the Pub21 


lic Health Service Act (42 U.S.C. 300bb


22 


6(4)), or section 8905a(f)(2)(A) of title 5, 

23 


United States Code, with respect to indi


24 


viduals who, during the period described in 

25 


paragraph (3)(A), become entitled to elect 

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1 


COBRA continuation coverage, such no


2 


tices shall include an additional notifica


3 


tion to the recipient of the availability of 

4 


premium reduction with respect to such 

5 


coverage under this subsection. 
6 
(ii) ALTERNATIVE NOTICE.—In the 
7 
case of COBRA continuation coverage to 
8 
which the notice provision under such sec9 
tions does not apply, the Secretary of 
10 
Labor, in consultation with the Secretary 
11 
of the Treasury and the Secretary of 
12 
Health and Human Services, shall, in co13 
ordination with administrators of the 
14 
group health plans (or other entities) that 
15 
provide or administer the COBRA continu16 
ation coverage involved, provide rules re17 
quiring the provision of such notice. 
18 
(iii) FORM.—The requirement of the 
19 
additional notification under this subpara20 
graph may be met by amendment of exist21 


ing notice forms or by inclusion of a sepa


22 


rate document with the notice otherwise 
23 
required. 

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1 


(B) SPECIFIC REQUIREMENTS.—Each ad


2 


ditional notification under subparagraph (A) 

3 


shall include— 

4 


(i) the forms necessary for estab


5 


lishing eligibility for premium reduction 
6 
under this subsection, 
7 
(ii) the name, address, and telephone 
8 
number necessary to contact the plan ad9 
ministrator and any other person main10 
taining relevant information in connection 
11 
with such premium reduction, 
12 
(iii) a description of the extended elec13 
tion period provided for in paragraph 
14 
(4)(A), 
15 
(iv) a description of the obligation of 
16 
the qualified beneficiary under paragraph 
17 
(2)(C) to notify the plan providing continu18 
ation coverage of eligibility for subsequent 
19 
coverage under another group health plan 
20 
or eligibility for benefits under title XVIII 
21 


of the Social Security Act and the penalty 

22 


provided for failure to so notify the plan, 
23 
and 
24 


(v) a description, displayed in a 

25 


prominent manner, of the qualified bene-

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1 


ficiary’s right to a reduced premium and 

2 


any conditions on entitlement to the re


3 


duced premium. 

4 


(C) NOTICE RELATING TO RETROACTIVE 

5 


COVERAGE.—In the case of an individual de6 
scribed in paragraph (3)(A) who has elected 
7 
COBRA continuation coverage as of the date of 
8 
enactment of this Act or an individual described 
9 
in paragraph (4)(A), the administrator of the 
10 
group health plan (or other entity) involved 
11 
shall provide (within 60 days after the date of 
12 
enactment of this Act) for the additional notifi13 
cation required to be provided under subpara14 
graph (A). 
15 
(D) MODEL NOTICES.—Not later than 30 
16 
days after the date of enactment of this Act, 
17 
the Secretary of the Labor, in consultation with 
18 
the Secretary of the Treasury and the Secretary 
19 
of Health and Human Services, shall prescribe 
20 
models for the additional notification required 
21 


under this paragraph. 

22 


(8) SAFEGUARDS.—The Secretary of the Treas


23 


ury shall provide such rules, procedures, regulations, 

24 


and other guidance as may be necessary and appro-

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1 


priate to prevent fraud and abuse under this sub


2 


section. 

3 


(9) OUTREACH.—The Secretary of Labor, in 

4 


consultation with the Secretary of the Treasury and 

5 


the Secretary of Health and Human Services, shall 
6 
provide outreach consisting of public education and 
7 
enrollment assistance relating to premium reduction 
8 
provided under this subsection. Such outreach shall 
9 
target employers, group health plan administrators, 
10 
public assistance programs, States, insurers, and 
11 
other entities as determined appropriate by such 
12 
Secretaries. Such outreach shall include an initial 
13 
focus on those individuals electing continuation cov14 
erage who are referred to in paragraph (7)(C). In15 
formation on such premium reduction, including en16 
rollment, shall also be made available on website of 
17 
the Departments of Labor, Treasury, and Health 
18 
and Human Services. 
19 
(10) DEFINITIONS.—For purposes of this sub20 
section— 
21 


(A) ADMINISTRATOR.—The term ‘‘admin


22 


istrator’’ has the meaning given such term in 

23 


section 3(16) of the Employee Retirement In


24 


come Security Act of 1974 

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1 


(B) COBRA CONTINUATION COVERAGE.— 
2 
The term ‘‘COBRA continuation coverage’’ 
3 


means continuation coverage provided pursuant 

4 


to part 6 of subtitle B of title I of the Em


5 


ployee Retirement Income Security Act of 1974 
6 
(other than under section 609), title XXII of 
7 
the Public Health Service Act, section 4980B of 
8 
the Internal Revenue Code of 1986 (other than 
9 
subsection (f)(1) of such section insofar as it 
10 
relates to pediatric vaccines), or section 8905a 
11 
of title 5, United States Code, or under a State 
12 
program that provides continuation coverage 
13 
comparable to such continuation coverage. Such 
14 
term does not include coverage under a health 
15 
flexible spending arrangement. 
16 
(C) COBRA CONTINUATION PROVISION.— 
17 
The term ‘‘COBRA continuation provision’’ 
18 
means the provisions of law described in sub19 
paragraph (B). 
20 
(D) COVERED EMPLOYEE.—The term 
21 


‘‘covered employee’’ has the meaning given such 

22 


term in section 607(2) of the Employee Retire


23 


ment Income Security Act of 1974. 

24 


(E) QUALIFIED BENEFICIARY.—The term 

25 


‘‘qualified beneficiary’’ has the meaning given 

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1 


such term in section 607(3) of the Employee 

2 


Retirement Income Security Act of 1974. 

3 


(F) GROUP HEALTH PLAN.—The term 

4 


‘‘group health plan’’ has the meaning given 

5 


such term in section 607(1) of the Employee 
6 
Retirement Income Security Act of 1974. 
7 
(G) STATE.—The term ‘‘State’’ includes 
8 
the District of Columbia, the Commonwealth of 
9 
Puerto Rico, the Virgin Islands, Guam, Amer10 
ican Samoa, and the Commonwealth of the 
11 
Northern Mariana Islands. 
12 
(11) REPORTS.— 
13 
(A) INTERIM REPORT.—The Secretary of 
14 
the Treasury shall submit an interim report to 
15 
the Committee on Education and Labor, the 
16 
Committee on Ways and Means, and the Com17 
mittee on Energy and Commerce of the House 
18 
of Representatives and the Committee on 
19 
Health, Education, Labor, and Pensions and 
20 
the Committee on Finance of the Senate re21 


garding the premium reduction provided under 

22 


this subsection that includes— 

23 


(i) the number of individuals provided 

24 


such assistance as of the date of the re25 
port; and 

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1 


(ii) the total amount of expenditures 

2 


incurred (with administrative expenditures 

3 


noted separately) in connection with such 

4 


assistance as of the date of the report. 

5 


(B) FINAL REPORT.—As soon as prac6 
ticable after the last period of COBRA continu7 
ation coverage for which premium reduction is 
8 
provided under this section, the Secretary of the 
9 
Treasury shall submit a final report to each 
10 
Committee referred to in subparagraph (A) that 
11 
includes— 
12 
(i) the number of individuals provided 
13 
premium reduction under this section; 
14 
(ii) the average dollar amount 
15 
(monthly and annually) of premium reduc16 
tions provided to such individuals; and 
17 
(iii) the total amount of expenditures 
18 
incurred (with administrative expenditures 
19 
noted separately) in connection with pre20 
mium reduction under this section. 
21 


(12) COBRA PREMIUM ASSISTANCE.— 

22 


(A) IN GENERAL.—Subchapter B of chap


23 


ter 65 of the Internal Revenue Code of 1986 is 

24 


amended by adding at the end the following 

25 


new section: 

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1 
‘‘SEC. 6431. COBRA PREMIUM ASSISTANCE. 
2 


‘‘(a) IN GENERAL.—The entity to whom premiums 
3 
are payable under COBRA continuation coverage shall be 
4 
reimbursed for the amount of premiums not paid by plan 
5 
beneficiaries by reason of section 3002(a) of the Health 
6 
Insurance Assistance for the Unemployed Act of 2009. 
7 
Such amount shall be treated as a credit against the re8 
quirement of such entity to make deposits of payroll taxes. 
9 
To the extent that such amount exceeds the amount of 
10 
such taxes, the Secretary shall pay to such entity the 
11 
amount of such excess. No payment may be made under 
12 
this subsection to an entity with respect to any assistance 
13 
eligible individual until after such entity has received the 
14 
reduced premium from such individual required under sec15 
tion 3002(a)(1)(A) of such Act. 
16 
‘‘(b) PAYROLL TAXES.—For purposes of this section, 
17 
the term ‘payroll taxes’ means— 
18 
‘‘(1) amounts required to be deducted and with19 
held for the payroll period under section 3401 (relat20 
ing to wage withholding), 
21 


‘‘(2) amounts required to be deducted for the 

22 


payroll period under section 3102 (relating to FICA 

23 


employee taxes), and 

24 


‘‘(3) amounts of the taxes imposed for the pay


25 


roll period under section 3111 (relating to FICA em


26 


ployer taxes). 

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1 


‘‘(c) TREATMENT OF CREDIT.—Except as otherwise 
2 
provided by the Secretary, the credit described in sub3 
section (a) shall be applied as though the employer had 
4 
paid to the Secretary, on the day that the qualified bene5 
ficiary’s premium payment is received, an amount equal 
6 
to such credit. 
7 
‘‘(d) TREATMENT OF PAYMENT.—For purposes of 
8 
section 1324(b)(2) of title 31, United States Code, any 
9 
payment under this subsection shall be treated in the same 
10 
manner as a refund of the credit under section 35. 
11 
‘‘(e) REPORTING.— 
12 
‘‘(1) IN GENERAL.—Each entity entitled to re13 
imbursement under subsection (a) for any period 
14 
shall submit such reports as the Secretary may re15 
quire, including— 
16 
‘‘(A) an attestation of involuntary termi17 
nation of employment for each covered em18 
ployee on the basis of whose termination entitle19 
ment to reimbursement is claimed under sub20 
section (a), and 
21 


‘‘(B) a report of the amount of payroll 

22 


taxes offset under subsection (a) for the report


23 


ing period and the estimated offsets of such 

24 


taxes for the subsequent reporting period in 

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1 


connection with reimbursements under sub


2 


section (a). 

3 


‘‘(2) TIMING OF REPORTS RELATING TO 

4 


AMOUNT OF PAYROLL TAXES.— Reports required 

5 


under paragraph (1)(B) shall be submitted at the 
6 
same time as deposits of taxes imposed by chapters 
7 
21, 22, and 24 or at such time as is specified by the 
8 
Secretary. 
9 
‘‘(f) REGULATIONS.—The Secretary may issue such 
10 
regulations or other guidance as may be necessary or ap11 
propriate to carry out this section, including the require12 
ment to report information or the establishment of other 
13 
methods for verifying the correct amounts of payments 
14 
and credits under this section.’’. 
15 
(B) SOCIAL SECURITY TRUST FUNDS HELD 
16 
HARMLESS.—In determining any amount trans17 
ferred or appropriated to any fund under the 
18 
Social Security Act, section 6431 of the Inter19 
nal Revenue Code of 1986 shall not be taken 
20 
into account. 
21 


(C) CLERICAL AMENDMENT.—The table of 

22 


sections for subchapter B of chapter 65 of the 

23 


Internal Revenue Code of 1986 is amended by 

24 


adding at the end the following new item: 

‘‘Sec. 6431. COBRA premium assistance.’’. 

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1 


(D) EFFECTIVE DATE.—The amendments 

2 


made by this paragraph shall apply to pre


3 


miums to which subsection (a)(1)(A) applies. 

4 


(13) PENALTY FOR FAILURE TO NOTIFY 

5 


HEALTH PLAN OF CESSATION OF ELIGIBILITY FOR 
6 
PREMIUM ASSISTANCE.— 
7 
(A) IN GENERAL.—Part I of subchapter B 
8 
of chapter 68 of the Internal Revenue Code of 
9 
1986 is amended by adding at the end the fol10 
lowing new section: 
11 
‘‘SEC. 6720C. PENALTY FOR FAILURE TO NOTIFY HEALTH 
12 
PLAN OF CESSATION OF ELIGIBILITY FOR 
13 
COBRA PREMIUM ASSISTANCE. 
14 
‘‘(a) IN GENERAL.—Any person required to notify a 
15 
group health plan under section 3002(a)(2)(C)) of the 
16 
Health Insurance Assistance for the Unemployed Act of 
17 
2009 who fails to make such a notification at such time 
18 
and in such manner as the Secretary of Labor may require 
19 
shall pay a penalty of 110 percent of the premium reduc20 
tion provided under such section after termination of eligi21 
bility under such subsection. 
22 


‘‘(b) REASONABLE CAUSE EXCEPTION.—No penalty 
23 
shall be imposed under subsection (a) with respect to any 
24 
failure if it is shown that such failure is due to reasonable 
25 
cause and not to willful neglect.’’. 

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1 


(B) CLERICAL AMENDMENT.—The table of 

2 


sections of part I of subchapter B of chapter 68 

3 


of such Code is amended by adding at the end 

4 


the following new item: 

‘‘Sec. 6720C. Penalty for failure to notify health plan of cessation of eligibility 
for COBRA premium assistance.’’. 

5 
(C) EFFECTIVE DATE.—The amendments 
6 
made by this paragraph shall apply to failures 
7 
occurring after the date of the enactment of 
8 
this Act. 
9 
(14) COORDINATION WITH HCTC.— 
10 
(A) IN GENERAL.—Subsection (g) of sec11 
tion 35 of the Internal Revenue Code of 1986 
12 
is amended by redesignating paragraph (9) as 
13 
paragraph (10) and inserting after paragraph 
14 
(8) the following new paragraph: 
15 
‘‘(9) COBRA PREMIUM ASSISTANCE.—In the 
16 
case of an assistance eligible individual who receives 
17 
premium reduction for COBRA continuation cov18 
erage under section 3002(a) of the Health Insurance 
19 
Assistance for the Unemployed Act of 2009 for any 
20 


month during the taxable year, such individual shall 

21 


not be treated as an eligible individual, a certified 

22 


individual, or a qualifying family member for pur


23 


poses of this section or section 7527 with respect to 

24 


such month.’’. 

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21 

1 


(B) EFFECTIVE DATE.—The amendment 

2 


made by subparagraph (A) shall apply to tax


3 


able years ending after the date of the enact


4 


ment of this Act. 
5 
(15) EXCLUSION OF COBRA PREMIUM ASSIST6 
ANCE FROM GROSS INCOME.— 
7 
(A) IN GENERAL.—Part III of subchapter 
8 
B of chapter 1 of the Internal Revenue Code of 
9 
1986 is amended by inserting after section 
10 
139B the following new section: 
11 
‘‘SEC. 139C. COBRA PREMIUM ASSISTANCE. 
12 
‘‘In the case of an assistance eligible individual (as 
13 
defined in section 3002 of the Health Insurance Assist14 
ance for the Unemployed Act of 2009), gross income does 
15 
not include any premium reduction provided under sub16 
section (a) of such section.’’. 
17 
(B) CLERICAL AMENDMENT.—The table of 
18 
sections for part III of subchapter B of chapter 
19 
1 of such Code is amended by inserting after 
20 
the item relating to section 139B the following 
21 
new item: 

‘‘Sec. 139C. COBRA premium assistance.’’. 

22 


(C) EFFECTIVE DATE.—The amendments 

23 


made by this paragraph shall apply to taxable 

24 


years ending after the date of the enactment of 
25 
this Act. 

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22 

1 


(b) EXTENSION OF COBRA BENEFITS FOR OLDER 
2 
OR LONG-TERM EMPLOYEES.— 
3 


(1) ERISA AMENDMENT.—Section 602(2)(A) 

4 


of the Employee Retirement Income Security Act of 

5 


1974 is amended by adding at the end the following 
6 
new clauses: 
7 
‘‘(x) SPECIAL RULE FOR OLDER OR 
8 
LONG-TERM EMPLOYEES GENERALLY.—In 
9 
the case of a qualifying event described in 
10 
section 603(2) with respect to a covered 
11 
employee who (as of such qualifying event) 
12 
has attained age 55 or has completed 10 
13 
or more years of service with the entity 
14 
that is the employer at the time of the 
15 
qualifying event, clauses (i) and (ii) shall 
16 
not apply. 
17 
‘‘(xi) YEAR OF SERVICE.— For pur18 
poses of this subparagraph, the term ‘year 
19 
of service’ shall have the meaning provided 
20 
in section 202(a)(3).’’. 
21 


(2) IRC AMENDMENT.—Clause (i) of section 

22 


4980B(f)(2)(B) of the Internal Revenue Code of 

23 


1986 is amended by adding at the end the following 

24 


new subclauses: 

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23 

1 


‘‘(X) SPECIAL RULE FOR OLDER 

2 


OR LONG-TERM EMPLOYEES GEN


3 


ERALLY.—In the case of a qualifying 

4 


event described in paragraph (3)(B) 

5 


with respect to a covered employee 
6 
who (as of such qualifying event) has 
7 
attained age 55 or has completed 10 
8 
or more years of service with the enti9 
ty that is the employer at the time of 
10 
the qualifying event, subclauses (I) 
11 
and (II) shall not apply. 
12 
‘‘(XI) YEAR OF SERVICE.— For 
13 
purposes of this clause, the term ‘year 
14 
of service’ shall have the meaning pro15 
vided in section 202(a)(3) of the Em16 
ployee Retirement Income Security 
17 
Act of 1974.’’. 
18 
(3) PHSA AMENDMENT.—Section 2202(2)(A) 
19 
of the Public Health Service Act is amended by add20 
ing at the end the following new clauses: 
21 


‘‘(viii) SPECIAL RULE FOR OLDER OR 

22 


LONG-TERM EMPLOYEES GENERALLY.—In 

23 


the case of a qualifying event described in 

24 


section 2203(2) with respect to a covered 

25 


employee who (as of such qualifying event) 

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24 

1 


has attained age 55 or has completed 10 

2 


or more years of service with the entity 

3 


that is the employer at the time of the 

4 


qualifying event, clauses (i) and (ii) shall 

5 


not apply. 
6 
‘‘(ix) YEAR OF SERVICE.— For pur7 
poses of this subparagraph, the term ‘year 
8 
of service’ shall have the meaning provided 
9 
in section 202(a)(3) of the Employee Re10 
tirement Income Security Act of 1974.’’. 
11 
(4) EFFECTIVE DATE OF AMENDMENTS.—The 
12 
amendments made by this subsection shall apply to 
13 
periods of coverage which would (without regard to 
14 
the amendments made by this section) end on or 
15 
after the date of the enactment of this Act. 
16 
SEC. 3003. TEMPORARY OPTIONAL MEDICAID COVERAGE 
17 
FOR THE UNEMPLOYED. 
18 
(a) IN GENERAL.—Section 1902 of the Social Secu19 
rity Act (42 U.S.C. 1396b) is amended— 
20 
(1) in subsection (a)(10)(A)(ii)— 
21 


(A) by striking ‘‘or’’ at the end of sub


22 


clause (XVIII); 

23 


(B) by adding ‘‘or’’ at the end of subclause 

24 


(XIX); and 

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25 

1 


(C) by adding at the end the following new 

2 


subclause 

3 


‘‘(XX) who are described in sub


4 


section (dd)(1) (relating to certain un


5 


employed individuals and their fami6 
lies);’’; and 
7 
(2) by adding at the end the following new sub8 
section: 
9 
‘‘(dd)(1) Individuals described in this paragraph 
10 
are— 
11 
‘‘(A) individuals who— 
12 
‘‘(i) are within one or more of the categories de13 
scribed in paragraph (2), as elected under the State 
14 
plan; and 
15 
‘‘(ii) meet the applicable requirements of para16 
graph (3); and 
17 
‘‘(B) individuals who— 
18 
‘‘(i) are the spouse, or dependent child under 
19 
19 years of age, of an individual described in sub20 
paragraph (A); and 
21 


‘‘(ii) meet the requirement of paragraph (3)(B). 

22 


‘‘(2) The categories of individuals described in this 
23 
paragraph are each of the following: 
24 


‘‘(A) Individuals who are receiving unemploy


25 


ment compensation benefits. 

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26 

1 


‘‘(B) Individuals who were receiving, but have 

2 


exhausted, unemployment compensation benefits on 

3 


or after July 1, 2008. 

4 


‘‘(C) Individuals who are involuntarily unem


5 


ployed and were involuntarily separated from em6 
ployment on or after September 1, 2008, and before 
7 
January 1, 2011, whose family gross income does 
8 
not exceed a percentage specified by the State (not 
9 
to exceed 200 percent) of the income official poverty 
10 
line (as defined by the Office of Management and 
11 
Budget, and revised annually in accordance with sec12 
tion 673(2) of the Omnibus Budget Reconciliation 
13 
Act of 1981) applicable to a family of the size in14 
volved, and who, but for subsection 
15 
(a)(10)(A)(ii)(XX), are not eligible for medical as16 
sistance under this title or health assistance under 
17 
title XXI. 
18 
‘‘(D) Individuals who are involuntarily unem19 
ployed and were involuntarily separated from em20 
ployment on or after September 1, 2008, and before 
21 


January 1, 2011, who are members of households 

22 


participating in the supplemental nutrition assist


23 


ance program established under the Food and Nutri


24 


tion Act of 2008 (7 U.S.C. 2011 et seq), and who, 

25 


but for subsection (a)(10)(A)(ii)(XX), are not eligi


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27 

1 


ble for medical assistance under this title or health 

2 


assistance under title XXI. 
3 
A State plan may elect one or more of the categories de4 
scribed in this paragraph but may not elect the category 
5 
described in subparagraph (B) unless the State plan also 
6 
elects the category described in subparagraph (A). 
7 
‘‘(3) The requirements of this paragraph with respect 
8 
to an individual are the following: 
9 
‘‘(A) In the case of individuals within a cat10 
egory described in subparagraph (A) or (B) of para11 
graph (2), the individual was involuntarily separated 
12 
from employment on or after September 1, 2008, 
13 
and before January 1, 2011, or meets such com14 
parable requirement as the Secretary specifies 
15 
through rule, guidance, or otherwise in the case of 
16 
an individual who was an independent contractor. 
17 
‘‘(B) The individual is not otherwise covered 
18 
under creditable coverage, as defined in section 
19 
2701(c) of the Public Health Service Act (42 U.S.C. 
20 
300gg(c)), but applied without regard to paragraph 
21 


(1)(F) of such section and without regard to cov


22 


erage provided by reason of the application of sub


23 


section (a)(10)(A)(ii)(XX). 

24 


‘‘(4)(A) No income or resources test shall be applied 
25 
with respect to any category of individuals described in 

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28 
1 
subparagraph (A), (B), or (D) of paragraph (2) who are 
2 
eligible for medical assistance only by reason of the appli3 
cation of subsection (a)(10)(A)(ii)(XX). 
4 


‘‘(B) Nothing in this subsection shall be construed 
5 
to prevent a State from imposing a resource test for the 
6 
category of individuals described in paragraph (2)(C)). 
7 
‘‘(C) In the case of individuals provided medical as8 
sistance by reason of the application of subsection 
9 
(a)(10)(A)(ii)(XX), the requirements of subsections 
10 
(i)(22) and (x) shall not apply.’’. 
11 
(b) 100 PERCENT FEDERAL MATCHING RATE.— 
12 
(1) FMAP FOR TIME-LIMITED PERIOD.—The 
13 
third sentence of section 1905(b) of such Act (42 
14 
U.S.C. 1396d(b)) is amended by inserting before the 
15 
period at the end the following: ‘‘and for items and 
16 
services furnished on or after the date of enactment 
17 
of this Act and before January 1, 2011, to individ18 
uals who are eligible for medical assistance only by 
19 
reason of the application of section 
20 
1902(a)(10)(A)(ii)(XX)’’. 
21 


(2) CERTAIN ENROLLMENT-RELATED ADMINIS


22 


TRATIVE COSTS.—Notwithstanding any other provi


23 


sion of law, for purposes of applying section 1903(a) 

24 


of the Social Security Act (42 U.S.C. 1396b(a)), 

25 


with respect to expenditures incurred on or after the 

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29 

1 


date of the enactment of this Act and before Janu


2 


ary 1, 2011, for costs of administration (including 

3 


outreach and the modification and operation of eligi


4 


bility information systems) attributable to eligibility 

5 


determination and enrollment of individuals who are 
6 
eligible for medical assistance only by reason of the 
7 
application of section 1902(a)(10)(A)(ii)(XX) of 
8 
such Act, as added by subsection (a)(1), the Federal 
9 
matching percentage shall be 100 percent instead of 
10 
the matching percentage otherwise applicable. 
11 
(c) CONFORMING AMENDMENTS.—(1) Section 
12 
1903(f)(4) of such Act (42 U.S.C. 1396c(f)(4)) is amend13 
ed by inserting ‘‘1902(a)(10)(A)(ii)(XX), or’’ after 
14 
‘‘1902(a)(10)(A)(ii)(XIX),’’. 
15 
(2) Section 1905(a) of such Act (42 U.S.C. 
16 
1396d(a)) is amended, in the matter preceding paragraph 
17 
(1)— 
18 
(A) by striking ‘‘or’’ at the end of clause (xii); 
19 
(B) by adding ‘‘or’’ at the end of clause (xiii); 
20 
and 
21 


(C) by inserting after clause (xiii) the following 

22 


new clause: 

23 


‘‘(xiv) individuals described in section 

24 


1902(dd)(1),’’. 

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30 

1 


TITLE IV—HEALTH 


2 


INFORMATION TECHNOLOGY 


3 
SEC. 4001. SHORT TITLE; TABLE OF CONTENTS OF TITLE. 

4 


(a) SHORT TITLE.—This title may be cited as the 
5 
‘‘Health Information Technology for Economic and Clin


6 
ical Health Act’’ or the ‘‘HITECH Act’’. 

7 
(b) TABLE OF CONTENTS OF TITLE.—The table of 

8 
contents of this title is as follows: 

Sec. 4001. Short title; table of contents of title. 

Subtitle A—Promotion of Health Information Technology 

PART I—IMPROVING HEALTH CARE QUALITY, SAFETY, AND EFFICIENCY 

Sec. 4101. ONCHIT; standards development and adoption. 

‘‘TITLE XXX—HEALTH INFORMATION TECHNOLOGY AND 
QUALITY 

‘‘Sec. 3000. Definitions. 

‘‘Subtitle A—Promotion of Health Information Technology 

‘‘Sec. 3001. Office of the National Coordinator for Health Information 

Technology. 
‘‘Sec. 3002. HIT Policy Committee. 
‘‘Sec. 3003. HIT Standards Committee. 
‘‘Sec. 3004. Process for adoption of endorsed recommendations; adoption 

of initial set of standards, implementation specifications, 
and certification criteria. 
‘‘Sec. 3005. Application and use of adopted standards and implementation 
specifications by Federal agencies. 
‘‘Sec. 3006. Voluntary application and use of adopted standards and im


plementation specifications by private entities. 
‘‘Sec. 3007. Federal health information technology. 
‘‘Sec. 3008. Transitions. 
‘‘Sec. 3009. Relation to HIPAA privacy and security law. 
‘‘Sec. 3010. Authorization for appropriations. 

Sec. 4102. Technical amendment. 

PART II—APPLICATION AND USE OF ADOPTED HEALTH INFORMATION 
TECHNOLOGY STANDARDS; REPORTS 


Sec. 4111. Coordination of Federal activities with adopted standards and imple


mentation specifications. 
Sec. 4112. Application to private entities. 
Sec. 4113. Study and reports. 


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31 

Subtitle B—Testing of Health Information Technology 

Sec. 4201. National Institute for Standards and Technology testing. 
Sec. 4202. Research and development programs. 

Subtitle C—Incentives for the Use of Health Information Technology 

PART I—GRANTS AND LOANS FUNDING 

Sec. 4301. Grant, loan, and demonstration programs. 

‘‘Subtitle B—Incentives for the Use of Health Information Technology 

‘‘Sec. 3011. Immediate funding to strengthen the health information tech


nology infrastructure. 
‘‘Sec. 3012. Health information technology implementation assistance. 
‘‘Sec. 3013. State grants to promote health information technology. 
‘‘Sec. 3014. Competitive grants to States and Indian tribes for the devel


opment of loan programs to facilitate the widespread 
adoption of certified EHR technology. 
‘‘Sec. 3015. Demonstration program to integrate information technology 

into clinical education. 
‘‘Sec. 3016. Information technology professionals on health care. 
‘‘Sec. 3017. General grant and loan provisions. 
‘‘Sec. 3018. Authorization for appropriations. 


PART II—MEDICARE PROGRAM 

Sec. 4311. Incentives for eligible professionals. 
Sec. 4312. Incentives for hospitals. 
Sec. 4313. Treatment of payments and savings; implementation funding. 
Sec. 4314. Study on application of HIT payment incentives for providers not 


receiving other incentive payments. 

PART III—MEDICAID FUNDING 

Sec. 4321. Medicaid provider HIT adoption and operation payments; implementation 
funding. 

Subtitle D—Privacy 

Sec. 4400. Definitions. 

PART I—IMPROVED PRIVACY PROVISIONS AND SECURITY PROVISIONS 

Sec. 4401. Application of security provisions and penalties to business associ


ates of covered entities; annual guidance on security provisions. 
Sec. 4402. Notification in the case of breach. 
Sec. 4403. Education on Health Information Privacy. 
Sec. 4404. Application of privacy provisions and penalties to business associates 

of covered entities. 

Sec. 4405. Restrictions on certain disclosures and sales of health information; 
accounting of certain protected health information disclosures; 
access to certain information in electronic format. 

Sec. 4406. Conditions on certain contacts as part of health care operations. 
Sec. 4407. Temporary breach notification requirement for vendors of personal 
health records and other non-HIPAA covered entities. 
Sec. 4408. Business associate contracts required for certain entities. 

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32 

Sec. 4409. Clarification of application of wrongful disclosures criminal penalties. 
Sec. 4410. Improved enforcement. 
Sec. 4411. Audits. 

PART II—RELATIONSHIP TO OTHER LAWS; REGULATORY REFERENCES; 
EFFECTIVE DATE; REPORTS 

Sec. 4421. Relationship to other laws. 
Sec. 4422. Regulatory references. 
Sec. 4423. Effective date. 
Sec. 4424. Studies, reports, guidance. 


1 
Subtitle A—Promotion of Health 
2 
Information Technology 
3 
PART I—IMPROVING HEALTH CARE QUALITY, 


4 
SAFETY, AND EFFICIENCY 

5 
SEC. 4101. ONCHIT; STANDARDS DEVELOPMENT AND ADOP


6 
TION. 

7 
The Public Health Service Act (42 U.S.C. 201 et 

8 
seq.) is amended by adding at the end the following: 
9 
‘‘TITLE XXX—HEALTH INFORMA10 
TION TECHNOLOGY AND 
11 
QUALITY 
12 
‘‘SEC. 3000. DEFINITIONS. 

13 
‘‘In this title: 

14 
‘‘(1) CERTIFIED EHR TECHNOLOGY.—The term 

15 


‘certified EHR technology’ means a qualified elec


16 


tronic health record that is certified pursuant to sec


17 


tion 3001(c)(5) as meeting standards adopted under 

18 


section 3004 that are applicable to the type of 

19 


record involved (as determined by the Secretary, 

20 


such as an ambulatory electronic health record for 

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33 

1 


office-based physicians or an inpatient hospital elec


2 


tronic health record for hospitals). 

3 


‘‘(2) ENTERPRISE INTEGRATION.—The term 

4 


‘enterprise integration’ means the electronic linkage 

5 


of health care providers, health plans, the govern6 
ment, and other interested parties, to enable the 
7 
electronic exchange and use of health information 
8 
among all the components in the health care infra9 
structure in accordance with applicable law, and 
10 
such term includes related application protocols and 
11 
other related standards. 
12 
‘‘(3) HEALTH CARE PROVIDER.—The term 
13 
‘health care provider’ means a hospital, skilled nurs14 
ing facility, nursing facility, home health entity or 
15 
other long term care facility, health care clinic, Fed16 
erally qualified health center, group practice (as de17 
fined in section 1877(h)(4) of the Social Security 
18 
Act), a pharmacist, a pharmacy, a laboratory, a phy19 
sician (as defined in section 1861(r) of the Social 
20 
Security Act), a practitioner (as described in section 
21 


1842(b)(18)(C) of the Social Security Act), a pro


22 


vider operated by, or under contract with, the Indian 

23 


Health Service or by an Indian tribe (as defined in 

24 


the Indian Self-Determination and Education Assist


25 


ance Act), tribal organization, or urban Indian orga


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34 

1 


nization (as defined in section 4 of the Indian 

2 


Health Care Improvement Act), a rural health clinic, 

3 


a covered entity under section 340B, and any other 

4 


category of facility or clinician determined appro


5 


priate by the Secretary. 
6 
‘‘(4) HEALTH INFORMATION.—The term ‘health 
7 
information’ has the meaning given such term in 
8 
section 1171(4) of the Social Security Act. 
9 
‘‘(5) HEALTH INFORMATION TECHNOLOGY.— 
10 
The term ‘health information technology’ means 
11 
hardware, software, integrated technologies and re12 
lated licenses, intellectual property, upgrades, and 
13 
packaged solutions sold as services that are specifi14 
cally designed for use by health care entities for the 
15 
electronic creation, maintenance, or exchange of 
16 
health information. 
17 
‘‘(6) HEALTH PLAN.—The term ‘health plan’ 
18 
has the meaning given such term in section 1171(5) 
19 
of the Social Security Act. 
20 
‘‘(7) HIT POLICY COMMITTEE.—The term ‘HIT 
21 


Policy Committee’ means such Committee estab


22 


lished under section 3002(a). 

23 


‘‘(8) HIT STANDARDS COMMITTEE.—The term 

24 


‘HIT Standards Committee’ means such Committee 

25 


established under section 3003(a). 

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35 

1 


‘‘(9) INDIVIDUALLY IDENTIFIABLE HEALTH IN


2 


FORMATION.—The term ‘individually identifiable 

3 


health information’ has the meaning given such term 

4 


in section 1171(6) of the Social Security Act. 

5 


‘‘(10) LABORATORY.—The term ‘laboratory’ 
6 
has the meaning given such term in section 353(a). 
7 
‘‘(11) NATIONAL COORDINATOR.—The term 
8 
‘National Coordinator’ means the head of the Office 
9 
of the National Coordinator for Health Information 
10 
Technology established under section 3001(a). 
11 
‘‘(12) PHARMACIST.—The term ‘pharmacist’ 
12 
has the meaning given such term in section 804(2) 
13 
of the Federal Food, Drug, and Cosmetic Act. 
14 
‘‘(13) QUALIFIED ELECTRONIC HEALTH 
15 
RECORD.—The term ‘qualified electronic health 
16 
record’ means an electronic record of health-related 
17 
information on an individual that— 
18 
‘‘(A) includes patient demographic and 
19 
clinical health information, such as medical his20 
tory and problem lists; and 
21 


‘‘(B) has the capacity— 

22 


‘‘(i) to provide clinical decision sup23 
port; 
24 


‘‘(ii) to support physician order entry; 

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36 

1 


‘‘(iii) to capture and query informa


2 


tion relevant to health care quality; and 

3 


‘‘(iv) to exchange electronic health in


4 


formation with, and integrate such infor


5 


mation from other sources. 
6 
‘‘(14) STATE.—The term ‘State’ means each of 
7 
the several States, the District of Columbia, Puerto 
8 
Rico, the Virgin Islands, Guam, American Samoa, 
9 
and the Northern Mariana Islands. 
10 
‘‘Subtitle A—Promotion of Health 
11 
Information Technology 
12 
‘‘SEC. 3001. OFFICE OF THE NATIONAL COORDINATOR FOR 
13 
HEALTH INFORMATION TECHNOLOGY. 
14 
‘‘(a) ESTABLISHMENT.—There is established within 
15 
the Department of Health and Human Services an Office 
16 
of the National Coordinator for Health Information Tech17 
nology (referred to in this section as the ‘Office’). The Of18 
fice shall be headed by a National Coordinator who shall 
19 
be appointed by the Secretary and shall report directly to 
20 
the Secretary. 
21 


‘‘(b) PURPOSE.—The National Coordinator shall per22 
form the duties under subsection (c) in a manner con23 
sistent with the development of a nationwide health infor24 
mation technology infrastructure that allows for the elec25 
tronic use and exchange of information and that— 

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37 

1 


‘‘(1) ensures that each patient’s health informa


2 


tion is secure and protected, in accordance with ap


3 


plicable law; 

4 


‘‘(2) improves health care quality, reduces med


5 


ical errors, and advances the delivery of patient-cen6 
tered medical care; 
7 
‘‘(3) reduces health care costs resulting from 
8 
inefficiency, medical errors, inappropriate care, du9 
plicative care, and incomplete information; 
10 
‘‘(4) provides appropriate information to help 
11 
guide medical decisions at the time and place of 
12 
care; 
13 
‘‘(5) ensures the inclusion of meaningful public 
14 
input in such development of such infrastructure; 
15 
‘‘(6) improves the coordination of care and in16 
formation among hospitals, laboratories, physician 
17 
offices, and other entities through an effective infra18 
structure for the secure and authorized exchange of 
19 
health care information; 
20 
‘‘(7) improves public health activities and facili21 


tates the early identification and rapid response to 

22 


public health threats and emergencies, including bio


23 


terror events and infectious disease outbreaks; 

24 


‘‘(8) facilitates health and clinical research and 

25 


health care quality; 

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1 


‘‘(9) promotes prevention of chronic diseases; 

2 


‘‘(10) promotes a more effective marketplace, 

3 


greater competition, greater systems analysis, in


4 


creased consumer choice, and improved outcomes in 

5 


health care services; and 
6 
‘‘(11) improves efforts to reduce health dispari7 
ties. 
8 
‘‘(c) DUTIES OF THE NATIONAL COORDINATOR.— 
9 
‘‘(1) STANDARDS.—The National Coordinator 
10 
shall review and determine whether to endorse each 
11 
standard, implementation specification, and certifi12 
cation criterion for the electronic exchange and use 
13 
of health information that is recommended by the 
14 
HIT Standards Committee under section 3003 for 
15 
purposes of adoption under section 3004. The Coor16 
dinator shall make such determination, and report to 
17 
the Secretary such determination, not later than 45 
18 
days after the date the recommendation is received 
19 
by the Coordinator. 
20 
‘‘(2) HIT POLICY COORDINATION.— 
21 


‘‘(A) IN GENERAL.—The National Coordi


22 


nator shall coordinate health information tech


23 


nology policy and programs of the Department 

24 


with those of other relevant executive branch 

25 


agencies with a goal of avoiding duplication of 

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39 

1 


efforts and of helping to ensure that each agen


2 


cy undertakes health information technology ac


3 


tivities primarily within the areas of its greatest 

4 


expertise and technical capability and in a man


5 


ner towards a coordinated national goal. 
6 
‘‘(B) HIT POLICY AND STANDARDS COM7 
MITTEES.—The National Coordinator shall be a 
8 
leading member in the establishment and oper9 
ations of the HIT Policy Committee and the 
10 
HIT Standards Committee and shall serve as a 
11 
liaison among those two Committees and the 
12 
Federal Government. 
13 
‘‘(3) STRATEGIC PLAN.— 
14 
‘‘(A) IN GENERAL.—The National Coordi15 
nator shall, in consultation with other appro16 
priate Federal agencies (including the National 
17 
Institute of Standards and Technology), update 
18 
the Federal Health IT Strategic Plan (devel19 
oped as of June 3, 2008) to include specific ob20 
jectives, milestones, and metrics with respect to 
21 


the following: 

22 


‘‘(i) The electronic exchange and use 

23 


of health information and the enterprise 

24 


integration of such information. 

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1 


‘‘(ii) The utilization of an electronic 

2 


health record for each person in the United 

3 


States by 2014. 

4 


‘‘(iii) The incorporation of privacy and 

5 


security protections for the electronic ex6 
change of an individual’s individually iden7 
tifiable health information. 
8 
‘‘(iv) Ensuring security methods to 
9 
ensure appropriate authorization and elec10 
tronic authentication of health information 
11 
and specifying technologies or methodolo12 
gies for rendering health information unus13 
able, unreadable, or indecipherable. 
14 
‘‘(v) Specifying a framework for co15 
ordination and flow of recommendations 
16 
and policies under this subtitle among the 
17 
Secretary, the National Coordinator, the 
18 
HIT Policy Committee, the HIT Standards 
19 
Committee, and other health information 
20 
exchanges and other relevant entities. 
21 


‘‘(vi) Methods to foster the public un


22 


derstanding of health information tech23 
nology. 
24 


‘‘(vii) Strategies to enhance the use of 

25 


health information technology in improving 

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1 


the quality of health care, reducing medical 

2 


errors, reducing health disparities, improv


3 


ing public health, and improving the con


4 


tinuity of care among health care settings. 
5 
‘‘(B) COLLABORATION.—The strategic 
6 
plan shall be updated through collaboration of 
7 
public and private entities. 
8 
‘‘(C) MEASURABLE OUTCOME GOALS.— 
9 
The strategic plan update shall include measur10 
able outcome goals. 
11 
‘‘(D) PUBLICATION.—The National Coor12 
dinator shall republish the strategic plan, in13 
cluding all updates. 
14 
‘‘(4) WEBSITE.—The National Coordinator 
15 
shall maintain and frequently update an Internet 
16 
website on which there is posted information on the 
17 
work, schedules, reports, recommendations, and 
18 
other information to ensure transparency in pro19 
motion of a nationwide health information tech20 
nology infrastructure. 
21 


‘‘(5) CERTIFICATION.— 

22 


‘‘(A) IN GENERAL.—The National Coordi


23 


nator, in consultation with the Director of the 

24 


National Institute of Standards and Tech


25 


nology, shall develop a program (either directly 

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42 

1 


or by contract) for the voluntary certification of 

2 


health information technology as being in com3 
pliance with applicable certification criteria 
4 


adopted under this subtitle. Such program shall 

5 


include testing of the technology in accordance 
6 
with section 4201(b) of the HITECH Act. 
7 
‘‘(B) CERTIFICATION CRITERIA DE8 
SCRIBED.—In this title, the term ‘certification 
9 
criteria’ means, with respect to standards and 
10 
implementation specifications for health infor11 
mation technology, criteria to establish that the 
12 
technology meets such standards and implemen13 
tation specifications. 
14 
‘‘(6) REPORTS AND PUBLICATIONS.— 
15 
‘‘(A) REPORT ON ADDITIONAL FUNDING 
16 
OR AUTHORITY NEEDED.—Not later than 12 
17 
months after the date of the enactment of this 
18 
title, the National Coordinator shall submit to 
19 
the appropriate committees of jurisdiction of 
20 
the House of Representatives and the Senate a 
21 


report on any additional funding or authority 

22 


the Coordinator or the HIT Policy Committee 

23 


or HIT Standards Committee requires to evalu24 
ate and develop standards, implementation 
25 


specifications, and certification criteria, or to 

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43 

1 


achieve full participation of stakeholders in the 

2 


adoption of a nationwide health information 

3 


technology infrastructure that allows for the 

4 


electronic use and exchange of health informa5 
tion. 
6 
‘‘(B) IMPLEMENTATION REPORT.—The 
7 
National Coordinator shall prepare a report 
8 
that identifies lessons learned from major pub9 
lic and private health care systems in their im10 
plementation of health information technology, 
11 
including information on whether the tech12 
nologies and practices developed by such sys13 
tems may be applicable to and usable in whole 
14 
or in part by other health care providers. 
15 
‘‘(C) ASSESSMENT OF IMPACT OF HIT ON 
16 
COMMUNITIES WITH HEALTH DISPARITIES AND 
17 
UNINSURED, UNDERINSURED, AND MEDICALLY 
18 
UNDERSERVED AREAS.—The National Coordi19 
nator shall assess and publish the impact of 
20 
health information technology in communities 
21 


with health disparities and in areas with a high 

22 


proportion of individuals who are uninsured, 

23 


underinsured, and medically underserved indi


24 


viduals (including urban and rural areas) and 

25 


identify practices to increase the adoption of 

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44 

1 


such technology by health care providers in 

2 


such communities. 
3 
‘‘(D) EVALUATION OF BENEFITS AND 
4 
COSTS OF THE ELECTRONIC USE AND EX5 


CHANGE OF HEALTH INFORMATION.—The Na6 
tional Coordinator shall evaluate and publish 
7 
evidence on the benefits and costs of the elec8 
tronic use and exchange of health information 
9 
and assess to whom these benefits and costs ac10 
crue. 
11 
‘‘(E) RESOURCE REQUIREMENTS.—The 
12 
National Coordinator shall estimate and publish 
13 
resources required annually to reach the goal of 
14 
utilization of an electronic health record for 
15 
each person in the United States by 2014, in16 
cluding the required level of Federal funding, 
17 
expectations for regional, State, and private in18 
vestment, and the expected contributions by vol19 
unteers to activities for the utilization of such 
20 
records. 
21 


‘‘(7) ASSISTANCE.—The National Coordinator 

22 


may provide financial assistance to consumer advo


23 


cacy groups and not-for-profit entities that work in 

24 


the public interest for purposes of defraying the cost 

25 


to such groups and entities to participate under, 

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45 

1 


whether in whole or in part, the National Tech


2 


nology Transfer Act of 1995 (15 U.S.C. 272 note). 

3 


‘‘(8) GOVERNANCE FOR NATIONWIDE HEALTH 

4 


INFORMATION NETWORK.—The National Coordi


5 


nator shall establish a governance mechanism for the 
6 
nationwide health information network. 
7 
‘‘(d) DETAIL OF FEDERAL EMPLOYEES.— 
8 
‘‘(1) IN GENERAL.—Upon the request of the 
9 
National Coordinator, the head of any Federal agen10 
cy is authorized to detail, with or without reimburse11 
ment from the Office, any of the personnel of such 
12 
agency to the Office to assist it in carrying out its 
13 
duties under this section. 
14 
‘‘(2) EFFECT OF DETAIL.—Any detail of per15 
sonnel under paragraph (1) shall— 
16 
‘‘(A) not interrupt or otherwise affect the 
17 
civil service status or privileges of the Federal 
18 
employee; and 
19 
‘‘(B) be in addition to any other staff of 
20 
the Department employed by the National Co21 


ordinator. 
22 
‘‘(3) ACCEPTANCE OF DETAILEES.—Notwith23 


standing any other provision of law, the Office may 

24 


accept detailed personnel from other Federal agen


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46 
1 
cies without regard to whether the agency described 
2 
under paragraph (1) is reimbursed. 
3 
‘‘(e) CHIEF PRIVACY OFFICER OF THE OFFICE OF 

4 
THE NATIONAL COORDINATOR.—Not later than 12 
5 
months after the date of the enactment of this title, the 
6 
Secretary shall appoint a Chief Privacy Officer of the Of7 
fice of the National Coordinator, whose duty it shall be 
8 
to advise the National Coordinator on privacy, security, 
9 
and data stewardship of electronic health information and 
10 
to coordinate with other Federal agencies (and similar pri11 
vacy officers in such agencies), with State and regional 
12 
efforts, and with foreign countries with regard to the pri13 
vacy, security, and data stewardship of electronic individ14 
ually identifiable health information. 
15 
‘‘SEC. 3002. HIT POLICY COMMITTEE. 
16 
‘‘(a) ESTABLISHMENT.—There is established a HIT 
17 
Policy Committee to make policy recommendations to the 
18 
National Coordinator relating to the implementation of a 
19 
nationwide health information technology infrastructure, 
20 
including implementation of the strategic plan described 
21 
in section 3001(c)(3). 
22 
‘‘(b) DUTIES.— 
23 
‘‘(1) RECOMMENDATIONS ON HEALTH INFOR24 
MATION TECHNOLOGY INFRASTRUCTURE.—The HIT 
25 
Policy Committee shall recommend a policy frame-

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47 

1 


work for the development and adoption of a nation


2 


wide health information technology infrastructure 

3 


that permits the electronic exchange and use of 

4 


health information as is consistent with the strategic 

5 


plan under section 3001(c)(3) and that includes the 
6 
recommendations under paragraph (2). The Com7 
mittee shall update such recommendations and make 
8 
new recommendations as appropriate. 
9 
‘‘(2) SPECIFIC AREAS OF STANDARD DEVELOP10 
MENT.— 
11 
‘‘(A) IN GENERAL.—The HIT Policy Com12 
mittee shall recommend the areas in which 
13 
standards, implementation specifications, and 
14 
certification criteria are needed for the elec15 
tronic exchange and use of health information 
16 
for purposes of adoption under section 3004 
17 
and shall recommend an order of priority for 
18 
the development, harmonization, and recogni19 
tion of such standards, specifications, and cer20 
tification criteria among the areas so rec21 


ommended. Such standards and implementation 

22 


specifications shall include named standards, 

23 


architectures, and software schemes for the au


24 


thentication and security of individually identifi


25 


able health information and other information 

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48 

1 


as needed to ensure the reproducible develop


2 


ment of common solutions across disparate en


3 


tities. 

4 


‘‘(B) AREAS REQUIRED FOR CONSIDER


5 


ATION.—For purposes of subparagraph (A), the 
6 
HIT Policy Committee shall make recommenda7 
tions for at least the following areas: 
8 
‘‘(i) Technologies that protect the pri9 
vacy of health information and promote se10 
curity in a qualified electronic health 
11 
record, including for the segmentation and 
12 
protection from disclosure of specific and 
13 
sensitive individually identifiable health in14 
formation with the goal of minimizing the 
15 
reluctance of patients to seek care (or dis16 
close information about a condition) be17 
cause of privacy concerns, in accordance 
18 
with applicable law, and for the use and 
19 
disclosure of limited data sets of such in20 
formation. 
21 


‘‘(ii) A nationwide health information 

22 


technology infrastructure that allows for 

23 


the electronic use and accurate exchange of 

24 


health information. 

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1 


‘‘(iii) The utilization of a certified 

2 


electronic health record for each person in 

3 


the United States by 2014. 

4 


‘‘(iv) Technologies that as a part of a 

5 


qualified electronic health record allow for 
6 
an accounting of disclosures made by a 
7 
covered entity (as defined for purposes of 
8 
regulations promulgated under section 
9 
264(c) of the Health Insurance Portability 
10 
and Accountability Act of 1996) for pur11 
poses of treatment, payment, and health 
12 
care operations (as such terms are defined 
13 
for purposes of such regulations). 
14 
‘‘(v) The use of certified electronic 
15 
health records to improve the quality of 
16 
health care, such as by promoting the co17 
ordination of health care and improving 
18 
continuity of health care among health 
19 
care providers, by reducing medical errors, 
20 
by improving population health, and by ad21 


vancing research and education. 
22 
‘‘(C) OTHER AREAS FOR CONSIDER23 


ATION.—In making recommendations under 

24 


subparagraph (A), the HIT Policy Committee 

25 


may consider the following additional areas: 

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1 


‘‘(i) The appropriate uses of a nation


2 


wide health information infrastructure, in


3 


cluding for purposes of— 

4 


‘‘(I) the collection of quality data 

5 


and public reporting; 
6 
‘‘(II) biosurveillance and public 
7 
health; 
8 
‘‘(III) medical and clinical re9 
search; and 
10 
‘‘(IV) drug safety. 
11 
‘‘(ii) Self-service technologies that fa12 
cilitate the use and exchange of patient in13 
formation and reduce wait times. 
14 
‘‘(iii) Telemedicine technologies, in 
15 
order to reduce travel requirements for pa16 
tients in remote areas. 
17 
‘‘(iv) Technologies that facilitate home 
18 
health care and the monitoring of patients 
19 
recuperating at home. 
20 
‘‘(v) Technologies that help reduce 
21 


medical errors. 

22 


‘‘(vi) Technologies that facilitate the 

23 


continuity of care among health settings. 
24 
‘‘(vii) Technologies that meet the 
25 


needs of diverse populations. 

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51 

1 


‘‘(viii) Any other technology that the 

2 


HIT Policy Committee finds to be among 

3 


the technologies with the greatest potential 

4 


to improve the quality and efficiency of 

5 


health care. 
6 
‘‘(3) FORUM.—The HIT Policy Committee shall 
7 
serve as a forum for broad stakeholder input with 
8 
specific expertise in policies relating to the matters 
9 
described in paragraphs (1) and (2). 
10 
‘‘(c) MEMBERSHIP AND OPERATIONS.— 
11 
‘‘(1) IN GENERAL.—The National Coordinator 
12 
shall provide leadership in the establishment and op13 
erations of the HIT Policy Committee. 
14 
‘‘(2) MEMBERSHIP.—The membership of the 
15 
HIT Policy Committee shall at least reflect pro16 
viders, ancillary healthcare workers, consumers, pur17 
chasers, health plans, technology vendors, research18 
ers, relevant Federal agencies, and individuals with 
19 
technical expertise on health care quality, privacy 
20 
and security, and on the electronic exchange and use 
21 


of health information. 

22 


‘‘(3) CONSIDERATION.—The National Coordi


23 


nator shall ensure that the relevant recommenda


24 


tions and comments from the National Committee 

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52 

1 


on Vital and Health Statistics are considered in the 

2 


development of policies. 

3 


‘‘(d) APPLICATION OF FACA.—The Federal Advisory 
4 
Committee Act (5 U.S.C. App.), other than section 14 of 
5 
such Act, shall apply to the HIT Policy Committee. 
6 
‘‘(e) PUBLICATION.—The Secretary shall provide for 
7 
publication in the Federal Register and the posting on the 
8 
Internet website of the Office of the National Coordinator 
9 
for Health Information Technology of all policy rec10 
ommendations made by the HIT Policy Committee under 
11 
this section. 
12 
‘‘SEC. 3003. HIT STANDARDS COMMITTEE. 
13 
‘‘(a) ESTABLISHMENT.—There is established a com14 
mittee to be known as the HIT Standards Committee to 
15 
recommend to the National Coordinator standards, imple16 
mentation specifications, and certification criteria for the 
17 
electronic exchange and use of health information for pur18 
poses of adoption under section 3004, consistent with the 
19 
implementation of the strategic plan described in section 
20 
3001(c)(3) and beginning with the areas listed in section 
21 
3002(b)(2)(B) in accordance with policies developed by 
22 
the HIT Policy Committee. 
23 


‘‘(b) DUTIES.— 

24 


‘‘(1) STANDARD DEVELOPMENT.— 

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1 


‘‘(A) IN GENERAL.—The HIT Standards 

2 


Committee shall recommend to the National 

3 


Coordinator standards, implementation speci


4 


fications, and certification criteria described in 

5 


subsection (a) that have been developed, har6 
monized, or recognized by the HIT Standards 
7 
Committee. The HIT Standards Committee 
8 
shall update such recommendations and make 
9 
new recommendations as appropriate, including 
10 
in response to a notification sent under section 
11 
3004(b)(2). Such recommendations shall be 
12 
consistent with the latest recommendations 
13 
made by the HIT Policy Committee. 
14 
‘‘(B) PILOT TESTING OF STANDARDS AND 
15 
IMPLEMENTATION SPECIFICATIONS.—In the de16 
velopment, harmonization, or recognition of 
17 
standards and implementation specifications, 
18 
the HIT Standards Committee shall, as appro19 
priate, provide for the testing of such standards 
20 
and specifications by the National Institute for 
21 


Standards and Technology under section 4201 

22 


of the HITECH Act. 

23 


‘‘(C) CONSISTENCY.—The standards, im


24 


plementation specifications, and certification 

25 


criteria recommended under this subsection 

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54 

1 


shall be consistent with the standards for infor


2 


mation transactions and data elements adopted 

3 


pursuant to section 1173 of the Social Security 
4 
Act. 
5 


‘‘(2) FORUM.—The HIT Standards Committee 
6 
shall serve as a forum for the participation of a 
7 
broad range of stakeholders to provide input on the 
8 
development, harmonization, and recognition of 
9 
standards, implementation specifications, and certifi10 
cation criteria necessary for the development and 
11 
adoption of a nationwide health information tech12 
nology infrastructure that allows for the electronic 
13 
use and exchange of health information. 
14 
‘‘(3) SCHEDULE.—Not later than 90 days after 
15 
the date of the enactment of this title, the HIT 
16 
Standards Committee shall develop a schedule for 
17 
the assessment of policy recommendations developed 
18 
by the HIT Policy Committee under section 3002. 
19 
The HIT Standards Committee shall update such 
20 
schedule annually. The Secretary shall publish such 
21 


schedule in the Federal Register. 
22 
‘‘(4) PUBLIC INPUT.—The HIT Standards 
23 


Committee shall conduct open public meetings and 

24 


develop a process to allow for public comment on the 
25 
schedule described in paragraph (3) and rec-

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55 

1 


ommendations described in this subsection. Under 

2 


such process comments shall be submitted in a time


3 


ly manner after the date of publication of a rec


4 


ommendation under this subsection. 

5 


‘‘(c) MEMBERSHIP AND OPERATIONS.— 
6 
‘‘(1) IN GENERAL.—The National Coordinator 
7 
shall provide leadership in the establishment and op8 
erations of the HIT Standards Committee. 
9 
‘‘(2) MEMBERSHIP.—The membership of the 
10 
HIT Standards Committee shall at least reflect pro11 
viders, ancillary healthcare workers, consumers, pur12 
chasers, health plans, technology vendors, research13 
ers, relevant Federal agencies, and individuals with 
14 
technical expertise on health care quality, privacy 
15 
and security, and on the electronic exchange and use 
16 
of health information. 
17 
‘‘(3) CONSIDERATION.—The National Coordi18 
nator shall ensure that the relevant recommenda19 
tions and comments from the National Committee 
20 
on Vital and Health Statistics are considered in the 
21 


development of standards. 

22 


‘‘(4) ASSISTANCE.—For the purposes of car


23 


rying out this section, the Secretary may provide or 

24 


ensure that financial assistance is provided by the 

25 


HIT Standards Committee to defray in whole or in 

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56 

1 


part any membership fees or dues charged by such 

2 


Committee to those consumer advocacy groups and 

3 


not for profit entities that work in the public inter


4 


est as a part of their mission. 

5 


‘‘(d) APPLICATION OF FACA.—The Federal Advisory 
6 
Committee Act (5 U.S.C. App.), other than section 14, 
7 
shall apply to the HIT Standards Committee. 
8 
‘‘(e) PUBLICATION.—The Secretary shall provide for 
9 
publication in the Federal Register and the posting on the 
10 
Internet website of the Office of the National Coordinator 
11 
for Health Information Technology of all recommenda12 
tions made by the HIT Standards Committee under this 
13 
section. 
14 
‘‘SEC. 3004. PROCESS FOR ADOPTION OF ENDORSED REC15 
OMMENDATIONS; ADOPTION OF INITIAL SET 
16 
OF STANDARDS, IMPLEMENTATION SPECI17 
FICATIONS, AND CERTIFICATION CRITERIA. 
18 
‘‘(a) PROCESS FOR ADOPTION OF ENDORSED REC19 
OMMENDATIONS.— 
20 
‘‘(1) REVIEW OF ENDORSED STANDARDS, IM21 
PLEMENTATION SPECIFICATIONS, AND CERTIFI22 


CATION CRITERIA.—Not later than 90 days after the 

23 


date of receipt of standards, implementation speci


24 


fications, or certification criteria endorsed under sec


25 


tion 3001(c), the Secretary, in consultation with rep-

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57 

1 


resentatives of other relevant Federal agencies, shall 

2 


jointly review such standards, implementation speci


3 


fications, or certification criteria and shall determine 

4 


whether or not to propose adoption of such stand


5 


ards, implementation specifications, or certification 
6 
criteria. 
7 
‘‘(2) DETERMINATION TO ADOPT STANDARDS, 
8 
IMPLEMENTATION SPECIFICATIONS, AND CERTIFI9 
CATION CRITERIA.—If the Secretary determines— 
10 
‘‘(A) to propose adoption of any grouping 
11 
of such standards, implementation specifica12 
tions, or certification criteria, the Secretary 
13 
shall, by regulation, determine whether or not 
14 
to adopt such grouping of standards, implemen15 
tation specifications, or certification criteria; or 
16 
‘‘(B) not to propose adoption of any group17 
ing of standards, implementation specifications, 
18 
or certification criteria, the Secretary shall no19 
tify the National Coordinator and the HIT 
20 
Standards Committee in writing of such deter21 


mination and the reasons for not proposing the 

22 


adoption of such recommendation. 

23 


‘‘(3) PUBLICATION.—The Secretary shall pro


24 


vide for publication in the Federal Register of all de


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58 

1 


terminations made by the Secretary under para


2 


graph (1). 

3 


‘‘(b) ADOPTION OF INITIAL SET OF STANDARDS, IM4 
PLEMENTATION SPECIFICATIONS, AND CERTIFICATION 
5 
CRITERIA.— 
6 
‘‘(1) IN GENERAL.—Not later than December 
7 
31, 2009, the Secretary shall, through the rule8 
making process described in section 3003, adopt an 
9 
initial set of standards, implementation specifica10 
tions, and certification criteria for the areas required 
11 
for consideration under section 3002(b)(2)(B). 
12 
‘‘(2) APPLICATION OF CURRENT STANDARDS, 
13 
IMPLEMENTATION SPECIFICATIONS, AND CERTIFI14 
CATION CRITERIA.—The standards, implementation 
15 
specifications, and certification criteria adopted be16 
fore the date of the enactment of this title through 
17 
the process existing through the Office of the Na18 
tional Coordinator for Health Information Tech19 
nology may be applied towards meeting the require20 
ment of paragraph (1). 
21 
‘‘SEC. 3005. APPLICATION AND USE OF ADOPTED STAND22 


ARDS AND IMPLEMENTATION SPECIFICA


23 


TIONS BY FEDERAL AGENCIES. 

24 


‘‘For requirements relating to the application and use 
25 
by Federal agencies of the standards and implementation 

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1 
specifications adopted under section 3004, see section 
2 
4111 of the HITECH Act. 
3 
‘‘SEC. 3006. VOLUNTARY APPLICATION AND USE OF ADOPT4 
ED STANDARDS AND IMPLEMENTATION 
5 


SPECIFICATIONS BY PRIVATE ENTITIES. 

6 
‘‘(a) IN GENERAL.—Except as provided under section 
7 
4112 of the HITECH Act, any standard or implementa8 
tion specification adopted under section 3004 shall be vol9 
untary with respect to private entities. 
10 
‘‘(b) RULE OF CONSTRUCTION.—Nothing in this sub11 
title shall be construed to require that a private entity that 
12 
enters into a contract with the Federal Government apply 
13 
or use the standards and implementation specifications 
14 
adopted under section 3004 with respect to activities not 
15 
related to the contract. 
16 
‘‘SEC. 3007. FEDERAL HEALTH INFORMATION TECH17 
NOLOGY. 
18 
‘‘(a) IN GENERAL.—The National Coordinator shall 
19 
support the development, routine updating and provision 
20 
of qualified EHR technology (as defined in section 3000) 
21 
consistent with subsections (b) and (c) unless the Sec22 
retary determines that the needs and demands of pro23 
viders are being substantially and adequately met through 
24 
the marketplace. 

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1 


‘‘(b) CERTIFICATION.—In making such EHR tech2 
nology publicly available, the National Coordinator shall 
3 
ensure that the qualified EHR technology described in 
4 
subsection (a) is certified under the program developed 
5 
under section 3001(c)(3) to be in compliance with applica6 
ble standards adopted under section 3003(a). 
7 
‘‘(c) AUTHORIZATION TO CHARGE A NOMINAL 
8 
FEE.—The National Coordinator may impose a nominal 
9 
fee for the adoption by a health care provider of the health 
10 
information technology system developed or approved 
11 
under subsection (a) and (b). Such fee shall take into ac12 
count the financial circumstances of smaller providers, low 
13 
income providers, and providers located in rural or other 
14 
medically underserved areas. 
15 
‘‘(d) RULE OF CONSTRUCTION.—Nothing in this sec16 
tion shall be construed to require that a private or govern17 
ment entity adopt or use the technology provided under 
18 
this section. 
19 
‘‘SEC. 3008. TRANSITIONS. 
20 
‘‘(a) ONCHIT.—To the extent consistent with sec21 
tion 3001, all functions, personnel, assets, liabilities, and 
22 
administrative actions applicable to the National Coordi23 
nator for Health Information Technology appointed under 
24 
Executive Order 13335 or the Office of such National Co25 
ordinator on the date before the date of the enactment 

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1 
of this title shall be transferred to the National Coordi2 
nator appointed under section 3001(a) and the Office of 
3 
such National Coordinator as of the date of the enactment 
4 
of this title. 
5 


‘‘(b) AHIC.— 
6 
‘‘(1) To the extent consistent with sections 
7 
3002 and 3003, all functions, personnel, assets, and 
8 
liabilities applicable to the AHIC Successor, Inc. 
9 
doing business as the National eHealth Collaborative 
10 
as of the day before the date of the enactment of 
11 
this title shall be transferred to the HIT Policy 
12 
Committee or the HIT Standards Committee, estab13 
lished under section 3002(a) or 3003(a), as appro14 
priate, as of the date of the enactment of this title. 
15 
‘‘(2) In carrying out section 3003(b)(1)(A), 
16 
until recommendations are made by the HIT Policy 
17 
Committee, recommendations of the HIT Standards 
18 
Committee shall be consistent with the most recent 
19 
recommendations made by such AHIC Successor, 
20 
Inc. 
21 


‘‘(c) RULES OF CONSTRUCTION.— 

22 


‘‘(1) ONCHIT.—Nothing in section 3001 or 

23 


subsection (a) shall be construed as requiring the 

24 


creation of a new entity to the extent that the Office 

25 


of the National Coordinator for Health Information 

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1 


Technology established pursuant to Executive Order 

2 


13335 is consistent with the provisions of section 

3 


3001. 

4 


‘‘(2) AHIC.—Nothing in sections 3002 or 3003 

5 


or subsection (b) shall be construed as prohibiting 
6 
the AHIC Successor, Inc. doing business as the Na7 
tional eHealth Collaborative from modifying its char8 
ter, duties, membership, and any other structure or 
9 
function required to be consistent with section 3002 
10 
and 3003 in a manner that would permit the Sec11 
retary to choose to recognize such Community as the 
12 
HIT Policy Committee or the HIT Standards Com13 
mittee. 
14 
‘‘SEC. 3009. RELATION TO HIPAA PRIVACY AND SECURITY 
15 
LAW. 
16 
‘‘(a) IN GENERAL.—With respect to the relation of 
17 
this title to HIPAA privacy and security law: 
18 
‘‘(1) This title may not be construed as having 
19 
any effect on the authorities of the Secretary under 
20 
HIPAA privacy and security law. 
21 


‘‘(2) The purposes of this title include ensuring 

22 


that the health information technology standards 

23 


and implementation specifications adopted under 

24 


section 3004 take into account the requirements of 

25 


HIPAA privacy and security law. 

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1 


‘‘(b) DEFINITION.—For purposes of this section, the 
2 
term ‘HIPAA privacy and security law’ means— 
3 


‘‘(1) the provisions of part C of title XI of the 

4 


Social Security Act, section 264 of the Health Insur


5 


ance Portability and Accountability Act of 1996, and 
6 
subtitle D of title IV of the HITECH Act; and 
7 
‘‘(2) regulations under such provisions. 
8 
‘‘SEC. 3010. AUTHORIZATION FOR APPROPRIATIONS. 
9 
‘‘There is authorized to be appropriated to the Office 
10 
of the National Coordinator for Health Information Tech11 
nology to carry out this subtitle $250,000,000 for fiscal 
12 
year 2009.’’. 
13 
SEC. 4102. TECHNICAL AMENDMENT. 
14 
Section 1171(5) of the Social Security Act (42 U.S.C. 
15 
1320d) is amended by striking ‘‘or C’’ and inserting ‘‘C, 
16 
or D’’. 
17 
PART II—APPLICATION AND USE OF ADOPTED 
18 
HEALTH INFORMATION TECHNOLOGY 
19 
STANDARDS; REPORTS 
20 
SEC. 4111. COORDINATION OF FEDERAL ACTIVITIES WITH 
21 
ADOPTED STANDARDS AND IMPLEMENTA22 


TION SPECIFICATIONS. 

23 
(a) SPENDING ON HEALTH INFORMATION TECH24 
NOLOGY SYSTEMS.—As each agency (as defined in the Ex25 
ecutive Order issued on August 22, 2006, relating to pro-

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1 
moting quality and efficient health care in Federal govern2 
ment administered or sponsored health care programs) im3 
plements, acquires, or upgrades health information tech4 
nology systems used for the direct exchange of individually 
5 
identifiable health information between agencies and with 
6 
non-Federal entities, it shall utilize, where available, 
7 
health information technology systems and products that 
8 
meet standards and implementation specifications adopted 
9 
under section 3004(b) of the Public Health Service Act, 
10 
as added by section 4101. 
11 
(b) FEDERAL INFORMATION COLLECTION ACTIVI12 
TIES.—With respect to a standard or implementation 
13 
specification adopted under section 3004(b) of the Public 
14 
Health Service Act, as added by section 4101, the Presi15 
dent shall take measures to ensure that Federal activities 
16 
involving the broad collection and submission of health in17 
formation are consistent with such standard or implemen18 
tation specification, respectively, within three years after 
19 
the date of such adoption. 
20 
(c) APPLICATION OF DEFINITIONS.—The definitions 
21 
contained in section 3000 of the Public Health Service 
22 
Act, as added by section 4101, shall apply for purposes 
23 
of this part. 

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1 
SEC. 4112. APPLICATION TO PRIVATE ENTITIES. 
2 


Each agency (as defined in such Executive Order 
3 
issued on August 22, 2006, relating to promoting quality 
4 
and efficient health care in Federal government adminis5 
tered or sponsored health care programs) shall require in 
6 
contracts or agreements with health care providers, health 
7 
plans, or health insurance issuers that as each provider, 
8 
plan, or issuer implements, acquires, or upgrades health 
9 
information technology systems, it shall utilize, where 
10 
available, health information technology systems and prod11 
ucts that meet standards and implementation specifica12 
tions adopted under section 3004(b) of the Public Health 
13 
Service Act, as added by section 4101. 
14 
SEC. 4113. STUDY AND REPORTS. 
15 
(a) REPORT ON ADOPTION OF NATIONWIDE SYS16 
TEM.—Not later than 2 years after the date of the enact17 
ment of this Act and annually thereafter, the Secretary 
18 
of Health and Human Services shall submit to the appro19 
priate committees of jurisdiction of the House of Rep20 
resentatives and the Senate a report that— 
21 


(1) describes the specific actions that have been 

22 


taken by the Federal Government and private enti


23 


ties to facilitate the adoption of a nationwide system 

24 


for the electronic use and exchange of health infor25 
mation; 

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1 


(2) describes barriers to the adoption of such a 

2 


nationwide system; and 

3 


(3) contains recommendations to achieve full 

4 


implementation of such a nationwide system. 
5 
(b) REIMBURSEMENT INCENTIVE STUDY AND RE6 
PORT.— 
7 
(1) STUDY.—The Secretary of Health and 
8 
Human Services shall carry out, or contract with a 
9 
private entity to carry out, a study that examines 
10 
methods to create efficient reimbursement incentives 
11 
for improving health care quality in Federally quali12 
fied health centers, rural health clinics, and free 
13 
clinics. 
14 
(2) REPORT.—Not later than 2 years after the 
15 
date of the enactment of this Act, the Secretary of 
16 
Health and Human Services shall submit to the ap17 
propriate committees of jurisdiction of the House of 
18 
Representatives and the Senate a report on the 
19 
study carried out under paragraph (1). 
20 
(c) AGING SERVICES TECHNOLOGY STUDY AND RE21 
PORT.— 
22 


(1) IN GENERAL.—The Secretary of Health and 

23 


Human Services shall carry out, or contract with a 

24 


private entity to carry out, a study of matters relat


25 


ing to the potential use of new aging services tech-

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1 


nology to assist seniors, individuals with disabilities, 

2 


and their caregivers throughout the aging process. 
3 
(2) MATTERS TO BE STUDIED.—The study 
4 


under paragraph (1) shall include— 

5 


(A) an evaluation of— 
6 
(i) methods for identifying current, 
7 
emerging, and future health technology 
8 
that can be used to meet the needs of sen9 
iors and individuals with disabilities and 
10 
their caregivers across all aging services 
11 
settings, as specified by the Secretary; 
12 
(ii) methods for fostering scientific in13 
novation with respect to aging services 
14 
technology within the business and aca15 
demic communities; and 
16 
(iii) developments in aging services 
17 
technology in other countries that may be 
18 
applied in the United States; and 
19 
(B) identification of— 
20 
(i) barriers to innovation in aging 
21 


services technology and devising strategies 

22 


for removing such barriers; and 

23 


(ii) barriers to the adoption of aging 

24 


services technology by health care pro-

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1 


viders and consumers and devising strate


2 


gies to removing such barriers. 

3 


(3) REPORT.—Not later than 24 months after 

4 


the date of the enactment of this Act, the Secretary 

5 


shall submit to the appropriate committees of juris6 
diction of the House of Representatives and of the 
7 
Senate a report on the study carried out under para8 
graph (1). 
9 
(4) DEFINITIONS.—For purposes of this sub10 
section: 
11 
(A) AGING SERVICES TECHNOLOGY.—The 
12 
term ‘‘aging services technology’’ means health 
13 
technology that meets the health care needs of 
14 
seniors, individuals with disabilities, and the 
15 
caregivers of such seniors and individuals. 
16 
(B) SENIOR.—The term ‘‘senior’’ has such 
17 
meaning as specified by the Secretary. 
18 
Subtitle B—Testing of Health 
19 
Information Technology 
20 
SEC. 4201. NATIONAL INSTITUTE FOR STANDARDS AND 
21 


TECHNOLOGY TESTING. 

22 


(a) PILOT TESTING OF STANDARDS AND IMPLEMEN23 
TATION SPECIFICATIONS.—In coordination with the HIT 
24 
Standards Committee established under section 3003 of 
25 
the Public Health Service Act, as added by section 4101, 

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1 
with respect to the development of standards and imple2 
mentation specifications under such section, the Director 
3 
of the National Institute for Standards and Technology 
4 
shall test such standards and implementation specifica5 
tions, as appropriate, in order to assure the efficient im6 
plementation and use of such standards and implementa7 
tion specifications. 
8 
(b) VOLUNTARY TESTING PROGRAM.—In coordina9 
tion with the HIT Standards Committee established under 
10 
section 3003 of the Public Health Service Act, as added 
11 
by section 4101, with respect to the development of stand12 
ards and implementation specifications under such sec13 
tion, the Director of the National Institute of Standards 
14 
and Technology shall support the establishment of a con15 
formance testing infrastructure, including the develop16 
ment of technical test beds. The development of this con17 
formance testing infrastructure may include a program to 
18 
accredit independent, non-Federal laboratories to perform 
19 
testing. 
20 
SEC. 4202. RESEARCH AND DEVELOPMENT PROGRAMS. 
21 


(a) HEALTH CARE INFORMATION ENTERPRISE INTE22 
GRATION RESEARCH CENTERS.— 
23 


(1) IN GENERAL.—The Director of the National 

24 


Institute of Standards and Technology, in consulta


25 


tion with the Director of the National Science Foun


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1 


dation and other appropriate Federal agencies, shall 

2 


establish a program of assistance to institutions of 

3 


higher education (or consortia thereof which may in


4 


clude nonprofit entities and Federal Government 

5 


laboratories) to establish multidisciplinary Centers 
6 
for Health Care Information Enterprise Integration. 
7 
(2) REVIEW; COMPETITION.—Grants shall be 
8 
awarded under this subsection on a merit-reviewed, 
9 
competitive basis. 
10 
(3) PURPOSE.—The purposes of the Centers de11 
scribed in paragraph (1) shall be— 
12 
(A) to generate innovative approaches to 
13 
health care information enterprise integration 
14 
by conducting cutting-edge, multidisciplinary 
15 
research on the systems challenges to health 
16 
care delivery; and 
17 
(B) the development and use of health in18 
formation technologies and other complemen19 
tary fields. 
20 
(4) RESEARCH AREAS.—Research areas may in21 
clude— 
22 


(A) interfaces between human information 

23 


and communications technology systems; 

24 


(B) voice-recognition systems; 

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1 


(C) software that improves interoperability 

2 


and connectivity among health information sys


3 


tems; 

4 


(D) software dependability in systems crit


5 


ical to health care delivery; 
6 
(E) measurement of the impact of informa7 
tion technologies on the quality and productivity 
8 
of health care; 
9 
(F) health information enterprise manage10 
ment; 
11 
(G) health information technology security 
12 
and integrity; and 
13 
(H) relevant health information technology 
14 
to reduce medical errors. 
15 
(5) APPLICATIONS.—An institution of higher 
16 
education (or a consortium thereof) seeking funding 
17 
under this subsection shall submit an application to 
18 
the Director of the National Institute of Standards 
19 
and Technology at such time, in such manner, and 
20 
containing such information as the Director may re21 


quire. The application shall include, at a minimum, 

22 


a description of— 

23 


(A) the research projects that will be un


24 


dertaken by the Center established pursuant to 

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72 

1 


assistance under paragraph (1) and the respec


2 


tive contributions of the participating entities; 

3 


(B) how the Center will promote active col


4 


laboration among scientists and engineers from 

5 


different disciplines, such as information tech6 
nology, biologic sciences, management, social 
7 
sciences, and other appropriate disciplines; 
8 
(C) technology transfer activities to dem9 
onstrate and diffuse the research results, tech10 
nologies, and knowledge; and 
11 
(D) how the Center will contribute to the 
12 
education and training of researchers and other 
13 
professionals in fields relevant to health infor14 
mation enterprise integration. 
15 
(b) NATIONAL INFORMATION TECHNOLOGY RE16 
SEARCH AND DEVELOPMENT PROGRAM.—The National 
17 
High-Performance Computing Program established by 
18 
section 101 of the High-Performance Computing Act of 
19 
1991 (15 U.S.C. 5511) shall coordinate Federal research 
20 
and development programs related to the development and 
21 
deployment of health information technology, including ac22 
tivities related to— 
23 


(1) computer infrastructure; 

24 


(2) data security; 

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1 


(3) development of large-scale, distributed, reli


2 


able computing systems; 

3 


(4) wired, wireless, and hybrid high-speed net


4 


working; 

5 


(5) development of software and software-inten6 
sive systems; 
7 
(6) human-computer interaction and informa8 
tion management technologies; and 
9 
(7) the social and economic implications of in10 
formation technology. 
11 
Subtitle C—Incentives for the Use 
12 
of Health Information Technology 
13 
PART I—GRANTS AND LOANS FUNDING 
14 
SEC. 4301. GRANT, LOAN, AND DEMONSTRATION PRO15 
GRAMS. 
16 
Title XXX of the Public Health Service Act, as added 
17 
by section 4101, is amended by adding at the end the fol18 
lowing new subtitle: 
19 
‘‘Subtitle B—Incentives for the Use 
20 
of Health Information Technology 
21 
‘‘SEC. 3011. IMMEDIATE FUNDING TO STRENGTHEN THE 
22 


HEALTH INFORMATION TECHNOLOGY INFRA


23 


STRUCTURE. 

24 


‘‘(a) IN GENERAL.—The Secretary of Health and 
25 
Human Services shall, using amounts appropriated under 

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1 
section 3018, invest in the infrastructure necessary to 
2 
allow for and promote the electronic exchange and use of 
3 
health information for each individual in the United States 
4 
consistent with the goals outlined in the strategic plan de5 
veloped by the National Coordinator (and as available) 
6 
under section 3001. To the greatest extent practicable, the 
7 
Secretary shall ensure that any funds so appropriated 
8 
shall be used for the acquisition of health information 
9 
technology that meets standards and certification criteria 
10 
adopted before the date of the enactment of this title until 
11 
such date as the standards are adopted under section 
12 
3004. The Secretary shall invest funds through the dif13 
ferent agencies with expertise in such goals, such as the 
14 
Office of the National Coordinator for Health Information 
15 
Technology, the Health Resources and Services Adminis16 
tration, the Agency for Healthcare Research and Quality, 
17 
the Centers of Medicare & Medicaid Services, the Centers 
18 
for Disease Control and Prevention, and the Indian 
19 
Health Service to support the following: 
20 
‘‘(1) Health information technology architecture 
21 


that will support the nationwide electronic exchange 

22 


and use of health information in a secure, private, 

23 


and accurate manner, including connecting health 

24 


information exchanges, and which may include up


25 


dating and implementing the infrastructure nec


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75 

1 


essary within different agencies of the Department 

2 


of Health and Human Services to support the elec


3 


tronic use and exchange of health information. 

4 


‘‘(2) Development and adoption of appropriate 

5 


certified electronic health records for categories of 
6 
providers not eligible for support under title XVIII 
7 
or XIX of the Social Security Act for the adoption 
8 
of such records. 
9 
‘‘(3) Training on and dissemination of informa10 
tion on best practices to integrate health information 
11 
technology, including electronic health records, into 
12 
a provider’s delivery of care, consistent with best 
13 
practices learned from the Health Information Tech14 
nology Research Center developed under section 302, 
15 
including community health centers receiving assist16 
ance under section 330 of the Public Health Service 
17 
Act, covered entities under section 340B of such 
18 
Act, and providers participating in one or more of 
19 
the programs under titles XVIII, XIX, and XXI of 
20 
the Social Security Act (relating to Medicare, Med21 


icaid, and the State Children’s Health Insurance 

22 


Program). 

23 


‘‘(4) Infrastructure and tools for the promotion 

24 


of telemedicine, including coordination among Fed


25 


eral agencies in the promotion of telemedicine. 

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‘‘(5) Promotion of the interoperability of clinical 

2 


data repositories or registries. 

3 


‘‘(6) Promotion of technologies and best prac


4 


tices that enhance the protection of health informa


5 


tion by all holders of individually identifiable health 
6 
information. 
7 
‘‘(7) Improve and expand the use of health in8 
formation technology by public health departments. 
9 
‘‘(8) Provide $300 million to support regional 
10 
or sub-national efforts towards health information 
11 
exchange. 
12 
‘‘(b) COORDINATION.—The Secretary shall ensure 
13 
funds under this section are used in a coordinated manner 
14 
with other health information promotion activities. 
15 
‘‘(c) ADDITIONAL USE OF FUNDS.—In addition to 
16 
using funds as provided in subsection (a), the Secretary 
17 
may use amounts appropriated under section 3018 to 
18 
carry out activities that are provided for under laws in 
19 
effect on the date of the enactment of this title. 
20 
‘‘SEC. 3012. HEALTH INFORMATION TECHNOLOGY IMPLE21 


MENTATION ASSISTANCE. 

22 


‘‘(a) HEALTH INFORMATION TECHNOLOGY EXTEN23 
SION PROGRAM.—To assist health care providers to adopt, 
24 
implement, and effectively use certified EHR technology 
25 
that allows for the electronic exchange and use of health 

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1 
information, the Secretary, acting through the Office of 
2 
the National Coordinator, shall establish a health informa3 
tion technology extension program to provide health infor4 
mation technology assistance services to be carried out 
5 
through the Department of Health and Human Services. 
6 
The National Coordinator shall consult with other Federal 
7 
agencies with demonstrated experience and expertise in in8 
formation technology services, such as the National Insti9 
tute of Standards and Technology, in developing and im10 
plementing this program. 
11 
‘‘(b) HEALTH INFORMATION TECHNOLOGY RE12 
SEARCH CENTER.— 
13 
‘‘(1) IN GENERAL.—The Secretary shall create 
14 
a Health Information Technology Research Center 
15 
(in this section referred to as the ‘Center’) to pro16 
vide technical assistance and develop or recognize 
17 
best practices to support and accelerate efforts to 
18 
adopt, implement, and effectively utilize health infor19 
mation technology that allows for the electronic ex20 
change and use of information in compliance with 
21 


standards, implementation specifications, and certifi


22 


cation criteria adopted under section 3004(b). 
23 
‘‘(2) INPUT.—The Center shall incorporate 
24 


input from— 

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1 


‘‘(A) other Federal agencies with dem


2 


onstrated experience and expertise in informa


3 


tion technology services such as the National 

4 


Institute of Standards and Technology; 

5 


‘‘(B) users of health information tech6 
nology, such as providers and their support and 
7 
clerical staff and others involved in the care and 
8 
care coordination of patients, from the health 
9 
care and health information technology indus10 
try; and 
11 
‘‘(C) others as appropriate. 
12 
‘‘(3) PURPOSES.—The purposes of the Center 
13 
are to— 
14 
‘‘(A) provide a forum for the exchange of 
15 
knowledge and experience; 
16 
‘‘(B) accelerate the transfer of lessons 
17 
learned from existing public and private sector 
18 
initiatives, including those currently receiving 
19 
Federal financial support; 
20 
‘‘(C) assemble, analyze, and widely dis21 


seminate evidence and experience related to the 

22 


adoption, implementation, and effective use of 

23 


health information technology that allows for 

24 


the electronic exchange and use of information 

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79 

1 


including through the regional centers described 

2 


in subsection (c); 

3 


‘‘(D) provide technical assistance for the 

4 


establishment and evaluation of regional and 

5 


local health information networks to facilitate 
6 
the electronic exchange of information across 
7 
health care settings and improve the quality of 
8 
health care; 
9 
‘‘(E) provide technical assistance for the 
10 
development and dissemination of solutions to 
11 
barriers to the exchange of electronic health in12 
formation; and 
13 
‘‘(F) learn about effective strategies to 
14 
adopt and utilize health information technology 
15 
in medically underserved communities. 
16 
‘‘(c) HEALTH INFORMATION TECHNOLOGY RE17 
GIONAL EXTENSION CENTERS.— 
18 
‘‘(1) IN GENERAL.—The Secretary shall provide 
19 
assistance for the creation and support of regional 
20 
centers (in this subsection referred to as ‘regional 
21 


centers’) to provide technical assistance and dissemi


22 


nate best practices and other information learned 

23 


from the Center to support and accelerate efforts to 

24 


adopt, implement, and effectively utilize health infor


25 


mation technology that allows for the electronic ex-

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1 


change and use of information in compliance with 

2 


standards, implementation specifications, and certifi


3 


cation criteria adopted under section 3004. Activities 

4 


conducted under this subsection shall be consistent 

5 


with the strategic plan developed by the National 
6 
Coordinator, (and, as available) under section 3001. 
7 
‘‘(2) AFFILIATION.—Regional centers shall be 
8 
affiliated with any US-based nonprofit institution or 
9 
organization, or group thereof, that applies and is 
10 
awarded financial assistance under this section. Indi11 
vidual awards shall be decided on the basis of merit. 
12 
‘‘(3) OBJECTIVE.—The objective of the regional 
13 
centers is to enhance and promote the adoption of 
14 
health information technology through— 
15 
‘‘(A) assistance with the implementation, 
16 
effective use, upgrading, and ongoing mainte17 
nance of health information technology, includ18 
ing electronic health records, to healthcare pro19 
viders nationwide; 
20 
‘‘(B) broad participation of individuals 
21 


from industry, universities, and State govern22 
ments; 
23 


‘‘(C) active dissemination of best practices 

24 


and research on the implementation, effective 

25 


use, upgrading, and ongoing maintenance of 

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1 


health information technology, including elec


2 


tronic health records, to health care providers 

3 


in order to improve the quality of healthcare 

4 


and protect the privacy and security of health 

5 


information; 
6 
‘‘(D) participation, to the extent prac7 
ticable, in health information exchanges; and 
8 
‘‘(E) utilization, when appropriate, of the 
9 
expertise and capability that exists in federal 
10 
agencies other than the Department; and 
11 
‘‘(F) integration of health information 
12 
technology, including electronic health records, 
13 
into the initial and ongoing training of health 
14 
professionals and others in the healthcare in15 
dustry that would be instrumental to improving 
16 
the quality of healthcare through the smooth 
17 
and accurate electronic use and exchange of 
18 
health information. 
19 
‘‘(4) REGIONAL ASSISTANCE.—Each regional 
20 
center shall aim to provide assistance and education 
21 


to all providers in a region, but shall prioritize any 

22 


direct assistance first to the following: 

23 


‘‘(A) Public or not-for-profit hospitals or 

24 


critical access hospitals. 

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1 


‘‘(B) Federally qualified health centers (as 

2 


defined in section 1861(aa)(4) of the Social Se


3 


curity Act). 

4 


‘‘(C) Entities that are located in rural and 

5 


other areas that serve uninsured, underinsured, 
6 
and medically underserved individuals (regard7 
less of whether such area is urban or rural). 
8 
‘‘(D) Individual or small group practices 
9 
(or a consortium thereof) that are primarily fo10 
cused on primary care. 
11 
‘‘(5) FINANCIAL SUPPORT.—The Secretary may 
12 
provide financial support to any regional center cre13 
ated under this subsection for a period not to exceed 
14 
four years. The Secretary may not provide more 
15 
than 50 percent of the capital and annual operating 
16 
and maintenance funds required to create and main17 
tain such a center, except in an instance of national 
18 
economic conditions which would render this cost19 
share requirement detrimental to the program and 
20 
upon notification to Congress as to the justification 
21 


to waive the cost-share requirement. 
22 
‘‘(6) NOTICE OF PROGRAM DESCRIPTION AND 
23 


AVAILABILITY OF FUNDS.—The Secretary shall pub


24 


lish in the Federal Register, not later than 90 days 

25 


after the date of the enactment of this Act, a draft 

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1 


description of the program for establishing regional 

2 


centers under this subsection. Such description shall 

3 


include the following: 

4 


‘‘(A) A detailed explanation of the program 

5 


and the programs goals. 
6 
‘‘(B) Procedures to be followed by the ap7 
plicants. 
8 
‘‘(C) Criteria for determining qualified ap9 
plicants. 
10 
‘‘(D) Maximum support levels expected to 
11 
be available to centers under the program. 
12 
‘‘(7) APPLICATION REVIEW.—The Secretary 
13 
shall subject each application under this subsection 
14 
to merit review. In making a decision whether to ap15 
prove such application and provide financial support, 
16 
the Secretary shall consider at a minimum the mer17 
its of the application, including those portions of the 
18 
application regarding— 
19 
‘‘(A) the ability of the applicant to provide 
20 
assistance under this subsection and utilization 
21 


of health information technology appropriate to 

22 


the needs of particular categories of health care 

23 


providers; 

24 


‘‘(B) the types of service to be provided to 

25 


health care providers; 

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1 


‘‘(C) geographical diversity and extent of 

2 


service area; and 

3 


‘‘(D) the percentage of funding and 

4 


amount of in-kind commitment from other 

5 


sources. 
6 
‘‘(8) BIENNIAL EVALUATION.—Each regional 
7 
center which receives financial assistance under this 
8 
subsection shall be evaluated biennially by an evalua9 
tion panel appointed by the Secretary. Each evalua10 
tion panel shall be composed of private experts, none 
11 
of whom shall be connected with the center involved, 
12 
and of Federal officials. Each evaluation panel shall 
13 
measure the involved center’s performance against 
14 
the objective specified in paragraph (3). The Sec15 
retary shall not continue to provide funding to a re16 
gional center unless its evaluation is overall positive. 
17 
‘‘(9) CONTINUING SUPPORT.—After the second 
18 
year of assistance under this subsection a regional 
19 
center may receive additional support under this 
20 
subsection if it has received positive evaluations and 
21 


a finding by the Secretary that continuation of Fed


22 


eral funding to the center was in the best interest 

23 


of provision of health information technology exten


24 


sion services. 

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1 
‘‘SEC. 3013. STATE GRANTS TO PROMOTE HEALTH INFOR2 


MATION TECHNOLOGY. 

3 


‘‘(a) IN GENERAL.—The Secretary, acting through 
4 
the National Coordinator, shall establish a program in ac5 
cordance with this section to facilitate and expand the 
6 
electronic movement and use of health information among 
7 
organizations according to nationally recognized stand8 
ards. 
9 
‘‘(b) PLANNING GRANTS.—The Secretary may award 
10 
a grant to a State or qualified State-designated entity (as 
11 
described in subsection (d)) that submits an application 
12 
to the Secretary at such time, in such manner, and con13 
taining such information as the Secretary may specify, for 
14 
the purpose of planning activities described in subsection 
15 
(b). 
16 
‘‘(c) IMPLEMENTATION GRANTS.—The Secretary 
17 
may award a grant to a State or qualified State designated 
18 
entity that— 
19 
‘‘(1) has submitted, and the Secretary has ap20 
proved, a plan described in subsection (c) (regardless 
21 


of whether such plan was prepared using amounts 

22 


awarded under paragraph (1)); and 

23 


‘‘(2) submits an application at such time, in 

24 


such manner, and containing such information as 

25 


the Secretary may specify. 

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1 
‘‘(d) USE OF FUNDS.—Amounts received under a 
2 
grant under subsection (a)(3) shall be used to conduct ac3 
tivities to facilitate and expand the electronic movement 
4 
and use of health information among organizations ac5 
cording to nationally recognized standards through activi6 
ties that include— 
7 
‘‘(1) enhancing broad and varied participation 
8 
in the authorized and secure nationwide electronic 
9 
use and exchange of health information; 
10 
‘‘(2) identifying State or local resources avail11 
able towards a nationwide effort to promote health 
12 
information technology; 
13 
‘‘(3) complementing other Federal grants, pro14 
grams, and efforts towards the promotion of health 
15 
information technology; 
16 
‘‘(4) providing technical assistance for the de17 
velopment and dissemination of solutions to barriers 
18 
to the exchange of electronic health information; 
19 
‘‘(5) promoting effective strategies to adopt and 
20 
utilize health information technology in medically 
21 


underserved communities; 

22 


‘‘(6) assisting patients in utilizing health infor


23 


mation technology; 

24 


‘‘(7) encouraging clinicians to work with Health 

25 


Information Technology Regional Extension Centers 

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1 


as described in section 3012, to the extent they are 

2 


available and valuable; 

3 


‘‘(8) supporting public health agencies’ author


4 


ized use of and access to electronic health informa5 
tion; 
6 
‘‘(9) promoting the use of electronic health 
7 
records for quality improvement including through 
8 
quality measures reporting; and 
9 
‘‘(10) such other activities as the Secretary may 
10 
specify. 
11 
‘‘(e) PLAN.— 
12 
‘‘(1) IN GENERAL.—A plan described in this 
13 
subsection is a plan that describes the activities to 
14 
be carried out by a State or by the qualified State15 
designated entity within such State to facilitate and 
16 
expand the electronic movement and use of health 
17 
information among organizations according to na18 
tionally recognized standards and implementation 
19 
specifications. 
20 
‘‘(2) REQUIRED ELEMENTS.—A plan described 
21 


in paragraph (1) shall— 

22 


‘‘(A) be pursued in the public interest; 

23 


‘‘(B) be consistent with the strategic plan 

24 


developed by the National Coordinator, (and, as 

25 


available) under section 3001; 

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1 


‘‘(C) include a description of the ways the 

2 


State or qualified State-designated entity will 

3 


carry out the activities described in subsection 

4 


(b); and 

5 


‘‘(D) contain such elements as the Sec6 
retary may require. 
7 
‘‘(f) QUALIFIED STATE-DESIGNATED ENTITY.—For 
8 
purposes of this section, to be a qualified State-designated 
9 
entity, with respect to a State, an entity shall— 
10 
‘‘(1) be designated by the State as eligible to 
11 
receive awards under this section; 
12 
‘‘(2) be a not-for-profit entity with broad stake13 
holder representation on its governing board; 
14 
‘‘(3) demonstrate that one of its principal goals 
15 
is to use information technology to improve health 
16 
care quality and efficiency through the authorized 
17 
and secure electronic exchange and use of health in18 
formation; 
19 
‘‘(4) adopt nondiscrimination and conflict of in20 
terest policies that demonstrate a commitment to 
21 


open, fair, and nondiscriminatory participation by 

22 


stakeholders; and 

23 


‘‘(5) conform to such other requirements as the 

24 


Secretary may establish. 

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1 


‘‘(g) REQUIRED CONSULTATION.—In carrying out 
2 
activities described in subsections (a)(2) and (a)(3), a 
3 
State or qualified State-designated entity shall consult 
4 
with and consider the recommendations of— 
5 


‘‘(1) health care providers (including providers 
6 
that provide services to low income and underserved 
7 
populations); 
8 
‘‘(2) health plans; 
9 
‘‘(3) patient or consumer organizations that 
10 
represent the population to be served; 
11 
‘‘(4) health information technology vendors; 
12 
‘‘(5) health care purchasers and employers; 
13 
‘‘(6) public health agencies; 
14 
‘‘(7) health professions schools, universities and 
15 
colleges; 
16 
‘‘(8) clinical researchers; 
17 
‘‘(9) other users of health information tech18 
nology such as the support and clerical staff of pro19 
viders and others involved in the care and care co20 
ordination of patients; and 
21 


‘‘(10) such other entities, as may be determined 

22 


appropriate by the Secretary. 

23 


‘‘(h) CONTINUOUS IMPROVEMENT.—The Secretary 
24 
shall annually evaluate the activities conducted under this 
25 
section and shall, in awarding grants under this section, 

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1 
implement the lessons learned from such evaluation in a 
2 
manner so that awards made subsequent to each such 
3 
evaluation are made in a manner that, in the determina4 
tion of the Secretary, will lead towards the greatest im5 
provement in quality of care, decrease in costs, and the 
6 
most effective authorized and secure electronic exchange 
7 
of health information. 
8 
‘‘(i) REQUIRED MATCH.— 
9 
‘‘(1) IN GENERAL.—For a fiscal year (begin10 
ning with fiscal year 2011), the Secretary may not 
11 
make a grant under subsection (a) to a State unless 
12 
the State agrees to make available non-Federal con13 
tributions (which may include in-kind contributions) 
14 
toward the costs of a grant awarded under sub15 
section (a)(3) in an amount equal to— 
16 
‘‘(A) for fiscal year 2011, not less than $1 
17 
for each $10 of Federal funds provided under 
18 
the grant; 
19 
‘‘(B) for fiscal year 2012, not less than $1 
20 
for each $7 of Federal funds provided under 
21 


the grant; and 

22 


‘‘(C) for fiscal year 2013 and each subse


23 


quent fiscal year, not less than $1 for each $3 

24 


of Federal funds provided under the grant. 

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1 
‘‘(2) AUTHORITY TO REQUIRE STATE MATCH 
2 


FOR FISCAL YEARS BEFORE FISCAL YEAR 2011.—For 

3 


any fiscal year during the grant program under this 

4 


section before fiscal year 2011, the Secretary may 

5 


determine the extent to which there shall be required 
6 
a non-Federal contribution from a State receiving a 
7 
grant under this section. 
8 
‘‘SEC. 3014. COMPETITIVE GRANTS TO STATES AND INDIAN 
9 
TRIBES FOR THE DEVELOPMENT OF LOAN 
10 
PROGRAMS TO FACILITATE THE WIDE11 
SPREAD ADOPTION OF CERTIFIED EHR TECH12 
NOLOGY. 
13 
‘‘(a) IN GENERAL.—The National Coordinator may 
14 
award competitive grants to eligible entities for the estab15 
lishment of programs for loans to health care providers 
16 
to conduct the activities described in subsection (e). 
17 
‘‘(b) ELIGIBLE ENTITY DEFINED.—For purposes of 
18 
this subsection, the term ‘eligible entity’ means a State 
19 
or Indian tribe (as defined in the Indian Self-Determina20 
tion and Education Assistance Act) that— 
21 


‘‘(1) submits to the National Coordinator an 

22 


application at such time, in such manner, and con


23 


taining such information as the National Coordi


24 


nator may require; 

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92 

1 


‘‘(2) submits to the National Coordinator a 

2 


strategic plan in accordance with subsection (d) and 

3 


provides to the National Coordinator assurances that 

4 


the entity will update such plan annually in accord


5 


ance with such subsection; 
6 
‘‘(3) provides assurances to the National Coor7 
dinator that the entity will establish a Loan Fund 
8 
in accordance with subsection (c); 
9 
‘‘(4) provides assurances to the National Coor10 
dinator that the entity will not provide a loan from 
11 
the Loan Fund to a health care provider unless the 
12 
provider agrees to— 
13 
‘‘(A) submit reports on quality measures 
14 
adopted by the Federal Government (by not 
15 
later than 90 days after the date on which such 
16 
measures are adopted), to— 
17 
‘‘(i) the Director of the Centers for 
18 
Medicare & Medicaid Services (or his or 
19 
her designee), in the case of an entity par20 
ticipating in the Medicare program under 
21 


title XVIII of the Social Security Act or 

22 


the Medicaid program under title XIX of 

23 


such Act; or 

24 


‘‘(ii) the Secretary in the case of other 
25 
entities; 

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93 

1 


‘‘(B) demonstrate to the satisfaction of the 

2 


Secretary (through criteria established by the 

3 


Secretary) that any certified EHR technology 

4 


purchased, improved, or otherwise financially 

5 


supported under a loan under this section is 
6 
used to exchange health information in a man7 
ner that, in accordance with law and standards 
8 
(as adopted under section 3005) applicable to 
9 
the exchange of information, improves the qual10 
ity of health care, such as promoting care co11 
ordination; and 
12 
‘‘(C) comply with such other requirements 
13 
as the entity or the Secretary may require; 
14 
‘‘(D) include a plan on how health care 
15 
providers involved intend to maintain and sup16 
port the certified EHR technology over time; 
17 
‘‘(E) include a plan on how the health care 
18 
providers involved intend to maintain and sup19 
port the certified EHR technology that would 
20 
be purchased with such loan, including the type 
21 


of resources expected to be involved and any 

22 


such other information as the State or Indian 

23 


Tribe, respectively, may require; and 

24 


‘‘(5) agrees to provide matching funds in ac


25 


cordance with subsection (i). 

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94 
1 
‘‘(c) ESTABLISHMENT OF FUND.—For purposes of 
2 
subsection (b)(3), an eligible entity shall establish a cer3 
tified EHR technology loan fund (referred to in this sub4 
section as a ‘Loan Fund’) and comply with the other re5 
quirements contained in this section. A grant to an eligible 
6 
entity under this section shall be deposited in the Loan 
7 
Fund established by the eligible entity. No funds author8 
ized by other provisions of this title to be used for other 
9 
purposes specified in this title shall be deposited in any 
10 
Loan Fund. 
11 
‘‘(d) STRATEGIC PLAN.— 
12 
‘‘(1) IN GENERAL.—For purposes of subsection 
13 
(b)(2), a strategic plan of an eligible entity under 
14 
this subsection shall identify the intended uses of 
15 
amounts available to the Loan Fund of such entity. 
16 
‘‘(2) CONTENTS.—A strategic plan under para17 
graph (1), with respect to a Loan Fund of an eligi18 
ble entity, shall include for a year the following: 
19 
‘‘(A) A list of the projects to be assisted 
20 
through the Loan Fund during such year. 
21 


‘‘(B) A description of the criteria and 

22 


methods established for the distribution of 

23 


funds from the Loan Fund during the year. 

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95 

1 


‘‘(C) A description of the financial status 

2 


of the Loan Fund as of the date of submission 

3 


of the plan. 

4 


‘‘(D) The short-term and long-term goals 

5 


of the Loan Fund. 
6 
‘‘(e) USE OF FUNDS.—Amounts deposited in a Loan 
7 
Fund, including loan repayments and interest earned on 
8 
such amounts, shall be used only for awarding loans or 
9 
loan guarantees, making reimbursements described in sub10 
section (g)(4)(A), or as a source of reserve and security 
11 
for leveraged loans, the proceeds of which are deposited 
12 
in the Loan Fund established under subsection (a). Loans 
13 
under this section may be used by a health care provider 
14 
to— 
15 
‘‘(1) facilitate the purchase of certified EHR 
16 
technology; 
17 
‘‘(2) enhance the utilization of certified EHR 
18 
technology; 
19 
‘‘(3) train personnel in the use of such tech20 
nology; or 
21 


‘‘(4) improve the secure electronic exchange of 

22 


health information. 
23 
‘‘(f) TYPES OF ASSISTANCE.—Except as otherwise 
24 
limited by applicable State law, amounts deposited into a 

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96 
1 
Loan Fund under this subsection may only be used for 
2 
the following: 
3 


‘‘(1) To award loans that comply with the fol


4 


lowing: 

5 


‘‘(A) The interest rate for each loan shall 
6 
not exceed the market interest rate. 
7 
‘‘(B) The principal and interest payments 
8 
on each loan shall commence not later than 1 
9 
year after the date the loan was awarded, and 
10 
each loan shall be fully amortized not later than 
11 
10 years after the date of the loan. 
12 
‘‘(C) The Loan Fund shall be credited with 
13 
all payments of principal and interest on each 
14 
loan awarded from the Loan Fund. 
15 
‘‘(2) To guarantee, or purchase insurance for, 
16 
a local obligation (all of the proceeds of which fi17 
nance a project eligible for assistance under this 
18 
subsection) if the guarantee or purchase would im19 
prove credit market access or reduce the interest 
20 
rate applicable to the obligation involved. 
21 


‘‘(3) As a source of revenue or security for the 

22 


payment of principal and interest on revenue or gen


23 


eral obligation bonds issued by the eligible entity if 

24 


the proceeds of the sale of the bonds will be depos


25 


ited into the Loan Fund. 

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97 

1 


‘‘(4) To earn interest on the amounts deposited 

2 


into the Loan Fund. 

3 


‘‘(5) To make reimbursements described in sub


4 


section (g)(4)(A). 

5 


‘‘(g) ADMINISTRATION OF LOAN FUNDS.— 
6 
‘‘(1) COMBINED FINANCIAL ADMINISTRATION.— 
7 
An eligible entity may (as a convenience and to 
8 
avoid unnecessary administrative costs) combine, in 
9 
accordance with applicable State law, the financial 
10 
administration of a Loan Fund established under 
11 
this subsection with the financial administration of 
12 
any other revolving fund established by the entity if 
13 
otherwise not prohibited by the law under which the 
14 
Loan Fund was established. 
15 
‘‘(2) COST OF ADMINISTERING FUND.—Each el16 
igible entity may annually use not to exceed 4 per17 
cent of the funds provided to the entity under a 
18 
grant under this subsection to pay the reasonable 
19 
costs of the administration of the programs under 
20 
this section, including the recovery of reasonable 
21 


costs expended to establish a Loan Fund which are 

22 


incurred after the date of the enactment of this title. 
23 
‘‘(3) GUIDANCE AND REGULATIONS.—The Na24 


tional Coordinator shall publish guidance and pro-

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98 

1 


mulgate regulations as may be necessary to carry 

2 


out the provisions of this section, including— 

3 


‘‘(A) provisions to ensure that each eligible 

4 


entity commits and expends funds allotted to 

5 


the entity under this subsection as efficiently as 
6 
possible in accordance with this title and appli7 
cable State laws; and 
8 
‘‘(B) guidance to prevent waste, fraud, and 
9 
abuse. 
10 
‘‘(4) PRIVATE SECTOR CONTRIBUTIONS.— 
11 
‘‘(A) IN GENERAL.—A Loan Fund estab12 
lished under this subsection may accept con13 
tributions from private sector entities, except 
14 
that such entities may not specify the recipient 
15 
or recipients of any loan issued under this sub16 
section. An eligible entity may agree to reim17 
burse a private sector entity for any contribu18 
tion made under this subparagraph, except that 
19 
the amount of such reimbursement may not be 
20 
greater than the principal amount of the con21 


tribution made. 
22 
‘‘(B) AVAILABILITY OF INFORMATION.— 
23 


An eligible entity shall make publicly available 

24 


the identity of, and amount contributed by, any 

25 


private sector entity under subparagraph (A) 

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99 

1 


and may issue letters of commendation or make 

2 


other awards (that have no financial value) to 

3 


any such entity. 

4 


‘‘(h) MATCHING REQUIREMENTS.— 

5 


‘‘(1) IN GENERAL.—The National Coordinator 
6 
may not make a grant under subsection (a) to an el7 
igible entity unless the entity agrees to make avail8 
able (directly or through donations from public or 
9 
private entities) non-Federal contributions in cash to 
10 
the costs of carrying out the activities for which the 
11 
grant is awarded in an amount equal to not less 
12 
than $1 for each $5 of Federal funds provided under 
13 
the grant. 
14 
‘‘(2) DETERMINATION OF AMOUNT OF NON15 
FEDERAL CONTRIBUTION.—In determining the 
16 
amount of non-Federal contributions that an eligible 
17 
entity has provided pursuant to subparagraph (A), 
18 
the National Coordinator may not include any 
19 
amounts provided to the entity by the Federal Gov20 
ernment. 
21 


‘‘(i) EFFECTIVE DATE.—The Secretary may not 
22 
make an award under this section prior to January 1, 
23 
2010. 

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100 

1 
‘‘SEC. 3015. DEMONSTRATION PROGRAM TO INTEGRATE IN2 


FORMATION TECHNOLOGY INTO CLINICAL 

3 


EDUCATION. 

4 


‘‘(a) IN GENERAL.—The Secretary may award grants 
5 
under this section to carry out demonstration projects to 
6 
develop academic curricula integrating certified EHR 
7 
technology in the clinical education of health professionals. 
8 
Such awards shall be made on a competitive basis and 
9 
pursuant to peer review. 
10 
‘‘(b) ELIGIBILITY.—To be eligible to receive a grant 
11 
under subsection (a), an entity shall— 
12 
‘‘(1) submit to the Secretary an application at 
13 
such time, in such manner, and containing such in14 
formation as the Secretary may require; 
15 
‘‘(2) submit to the Secretary a strategic plan 
16 
for integrating certified EHR technology in the clin17 
ical education of health professionals to reduce med18 
ical errors and enhance health care quality; 
19 
‘‘(3) be— 
20 
‘‘(A) a school of medicine, osteopathic 
21 


medicine, dentistry, or pharmacy, a graduate 

22 


program in behavioral or mental health, or any 

23 


other graduate health professions school; 

24 


‘‘(B) a graduate school of nursing or phy


25 


sician assistant studies; 

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101 

1 


‘‘(C) a consortium of two or more schools 

2 


described in subparagraph (A) or (B); or 

3 


‘‘(D) an institution with a graduate med


4 


ical education program in medicine, osteopathic 

5 


medicine, dentistry, pharmacy, nursing, or phy6 
sician assistance studies. 
7 
‘‘(4) provide for the collection of data regarding 
8 
the effectiveness of the demonstration project to be 
9 
funded under the grant in improving the safety of 
10 
patients, the efficiency of health care delivery, and 
11 
in increasing the likelihood that graduates of the 
12 
grantee will adopt and incorporate certified EHR 
13 
technology, in the delivery of health care services; 
14 
and 
15 
‘‘(5) provide matching funds in accordance with 
16 
subsection (d). 
17 
‘‘(c) USE OF FUNDS.— 
18 
‘‘(1) IN GENERAL.—With respect to a grant 
19 
under subsection (a), an eligible entity shall— 
20 
‘‘(A) use grant funds in collaboration with 
21 


2 or more disciplines; and 

22 


‘‘(B) use grant funds to integrate certified 

23 


EHR technology into community-based clinical 

24 


education. 

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102 

1 


‘‘(2) LIMITATION.—An eligible entity shall not 

2 


use amounts received under a grant under sub


3 


section (a) to purchase hardware, software, or serv4 
ices. 
5 


‘‘(d) FINANCIAL SUPPORT.—The Secretary may not 
6 
provide more than 50 percent of the costs of any activity 
7 
for which assistance is provided under subsection (a), ex8 
cept in an instance of national economic conditions which 
9 
would render the cost-share requirement under this sub10 
section detrimental to the program and upon notification 
11 
to Congress as to the justification to waive the cost-share 
12 
requirement. 
13 
‘‘(e) EVALUATION.—The Secretary shall take such 
14 
action as may be necessary to evaluate the projects funded 
15 
under this section and publish, make available, and dis16 
seminate the results of such evaluations on as wide a basis 
17 
as is practicable. 
18 
‘‘(f) REPORTS.—Not later than 1 year after the date 
19 
of enactment of this title, and annually thereafter, the Sec20 
retary shall submit to the Committee on Health, Edu21 
cation, Labor, and Pensions and the Committee on Fi22 
nance of the Senate, and the Committee on Energy and 
23 
Commerce of the House of Representatives a report 
24 
that— 

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103 

1 


‘‘(1) describes the specific projects established 

2 


under this section; and 

3 


‘‘(2) contains recommendations for Congress 

4 


based on the evaluation conducted under subsection 
5 
(e). 
6 
‘‘SEC. 3016. INFORMATION TECHNOLOGY PROFESSIONALS 
7 
ON HEALTH CARE. 
8 
‘‘(a) IN GENERAL.—The Secretary, in consultation 
9 
with the Director of the National Science Foundation, 
10 
shall provide assistance to institutions of higher education 
11 
(or consortia thereof) to establish or expand medical 
12 
health informatics education programs, including certifi13 
cation, undergraduate, and masters degree programs, for 
14 
both health care and information technology students to 
15 
ensure the rapid and effective utilization and development 
16 
of health information technologies (in the United States 
17 
health care infrastructure). 
18 
‘‘(b) ACTIVITIES.—Activities for which assistance 
19 
may be provided under subsection (a) may include the fol20 
lowing: 
21 


‘‘(1) Developing and revising curricula in med


22 


ical health informatics and related disciplines. 

23 


‘‘(2) Recruiting and retaining students to the 

24 


program involved. 

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104 

1 


‘‘(3) Acquiring equipment necessary for student 

2 


instruction in these programs, including the installa


3 


tion of testbed networks for student use. 

4 


‘‘(4) Establishing or enhancing bridge programs 

5 


in the health informatics fields between community 
6 
colleges and universities. 
7 
‘‘(c) PRIORITY.—In providing assistance under sub8 
section (a), the Secretary shall give preference to the fol9 
lowing: 
10 
‘‘(1) Existing education and training programs. 
11 
‘‘(2) Programs designed to be completed in less 
12 
than six months. 
13 
‘‘(d) FINANCIAL SUPPORT.—The Secretary may not 
14 
provide more than 50 percent of the costs of any activity 
15 
for which assistance is provided under subsection (a), ex16 
cept in an instance of national economic conditions which 
17 
would render the cost-share requirement under this sub18 
section detrimental to the program and upon notification 
19 
to Congress as to the justification to waive the cost-share 
20 
requirement. 
21 
‘‘SEC. 3017. GENERAL GRANT AND LOAN PROVISIONS. 
22 


‘‘(a) REPORTS.—The Secretary may require that an 
23 
entity receiving assistance under this title shall submit to 
24 
the Secretary, not later than the date that is 1 year after 

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105 
1 
the date of receipt of such assistance, a report that in2 
cludes— 
3 


‘‘(1) an analysis of the effectiveness of the ac


4 


tivities for which the entity receives such assistance, 

5 


as compared to the goals for such activities; and 
6 
‘‘(2) an analysis of the impact of the project on 
7 
health care quality and safety. 
8 
‘‘(b) REQUIREMENT TO IMPROVE QUALITY OF CARE 
9 
AND DECREASE IN COSTS.—The National Coordinator 
10 
shall annually evaluate the activities conducted under this 
11 
title and shall, in awarding grants, implement the lessons 
12 
learned from such evaluation in a manner so that awards 
13 
made subsequent to each such evaluation are made in a 
14 
manner that, in the determination of the National Coordi15 
nator, will result in the greatest improvement in the qual16 
ity and efficiency of health care. 
17 
‘‘SEC. 3018. AUTHORIZATION FOR APPROPRIATIONS. 
18 
‘‘For the purposes of carrying out this subtitle, there 
19 
is authorized to be appropriated such sums as may be nec20 
essary for each of the fiscal years 2009 through 2013. 
21 
Amounts so appropriated shall remain available until ex22 
pended.’’. 

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106 

1 


PART II—MEDICARE PROGRAM 
2 
SEC. 4311. INCENTIVES FOR ELIGIBLE PROFESSIONALS. 
3 


(a) INCENTIVE PAYMENTS.—Section 1848 of the So4 
cial Security Act (42 U.S.C. 1395w–4) is amended by add5 
ing at the end the following new subsection: 
6 
‘‘(o) INCENTIVES FOR ADOPTION AND MEANINGFUL 
7 
USE OF CERTIFIED EHR TECHNOLOGY.— 
8 
‘‘(1) INCENTIVE PAYMENTS.— 
9 
‘‘(A) IN GENERAL.—Subject to the suc10 
ceeding subparagraphs of this paragraph, with 
11 
respect to covered professional services fur12 
nished by an eligible professional during a pay13 
ment year (as defined in subparagraph (E)), if 
14 
the eligible professional is a meaningful EHR 
15 
user (as determined under paragraph (2)) for 
16 
the reporting period with respect to such year, 
17 
in addition to the amount otherwise paid under 
18 
this part, there also shall be paid to the eligible 
19 
professional (or to an employer or facility in the 
20 
cases described in clause (A) of section 
21 


1842(b)(6)), from the Federal Supplementary 
22 
Medical Insurance Trust Fund established 
23 


under section 1841 an amount equal to 75 per


24 


cent of the Secretary’s estimate (based on 

25 


claims submitted not later than 2 months after 

26 


the end of the payment year) of the allowed 

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107 

1 


charges under this part for all such covered 

2 


professional services furnished by the eligible 

3 


professional during such year. 
4 
‘‘(B) LIMITATIONS ON AMOUNTS OF IN5 


CENTIVE PAYMENTS.— 
6 
‘‘(i) IN GENERAL.—In no case shall 
7 
the amount of the incentive payment pro8 
vided under this paragraph for an eligible 
9 
professional for a payment year exceed the 
10 
applicable amount specified under this sub11 
paragraph with respect to such eligible 
12 
professional and such year. 
13 
‘‘(ii) AMOUNT.—Subject to clause 
14 
(iii), the applicable amount specified in this 
15 
subparagraph for an eligible professional is 
16 
as follows: 
17 
‘‘(I) For the first payment year 
18 
for such professional, $15,000. 
19 
‘‘(II) For the second payment 
20 
year for such professional, $12,000. 
21 


‘‘(III) For the third payment 

22 


year for such professional, $8,000. 

23 


‘‘(IV) For the fourth payment 

24 


year for such professional, $4,000. 

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108 

1 


‘‘(V) For the fifth payment year 

2 


for such professional, $2,000. 

3 


‘‘(VI) For any succeeding pay


4 


ment year for such professional, $0. 

5 


‘‘(iii) PHASE DOWN FOR ELIGIBLE 
6 
PROFESSIONALS FIRST ADOPTING EHR 
7 
AFTER 2013.—If the first payment year for 
8 
an eligible professional is after 2013, then 
9 
the amount specified in this subparagraph 
10 
for a payment year for such professional is 
11 
the same as the amount specified in clause 
12 
(ii) for such payment year for an eligible 
13 
professional whose first payment year is 
14 
2013. If the first payment year for an eli15 
gible professional is after 2015 then the 
16 
applicable amount specified in this sub17 
paragraph for such professional for such 
18 
year and any subsequent year shall be $0. 
19 
‘‘(C) NON-APPLICATION TO HOSPITAL20 
BASED ELIGIBLE PROFESSIONALS.— 
21 


‘‘(i) IN GENERAL.—No incentive pay


22 


ment may be made under this paragraph 

23 


in the case of a hospital-based eligible pro24 
fessional. 

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109 

1 


‘‘(ii) HOSPITAL-BASED ELIGIBLE PRO


2 


FESSIONAL.—For purposes of clause (i), 

3 


the term ‘hospital-based eligible profes


4 


sional’ means, with respect to covered pro


5 


fessional services furnished by an eligible 
6 
professional during the reporting period for 
7 
a payment year, an eligible professional, 
8 
such as a pathologist, anesthesiologist, or 
9 
emergency physician, who furnishes sub10 
stantially all of such services in a hospital 
11 
setting (whether inpatient or outpatient) 
12 
and through the use of the facilities and 
13 
equipment, including computer equipment, 
14 
of the hospital. 
15 
‘‘(D) PAYMENT.— 
16 
‘‘(i) FORM OF PAYMENT.—The pay17 
ment under this paragraph may be in the 
18 
form of a single consolidated payment or 
19 
in the form of such periodic installments 
20 
as the Secretary may specify. 
21 


‘‘(ii) COORDINATION OF APPLICATION 
22 
OF LIMITATION FOR PROFESSIONALS IN 
23 


DIFFERENT PRACTICES.—In the case of an 

24 


eligible professional furnishing covered pro


25 


fessional services in more than one practice 

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110 

1 


(as specified by the Secretary), the Sec


2 


retary shall establish rules to coordinate 

3 


the incentive payments, including the ap


4 


plication of the limitation on amounts of 

5 


such incentive payments under this para6 
graph, among such practices. 
7 
‘‘(iii) COORDINATION WITH MED8 
ICAID.—The Secretary shall seek, to the 
9 
maximum extent practicable, to avoid du10 
plicative requirements from Federal and 
11 
State Governments to demonstrate mean12 
ingful use of certified EHR technology 
13 
under this title and title XIX. In doing so, 
14 
the Secretary may deem satisfaction of 
15 
State requirements for such meaningful 
16 
use for a payment year under title XIX to 
17 
be sufficient to qualify as meaningful use 
18 
under this subsection and subsection (a)(7) 
19 
and vice versa. The Secretary may also ad20 
just the reporting periods under such title 
21 


and such subsections in order to carry out 

22 


this clause. 

23 


‘‘(E) PAYMENT YEAR DEFINED.— 

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111 

1 


‘‘(i) IN GENERAL.—For purposes of 

2 


this subsection, the term ‘payment year’ 

3 


means a year beginning with 2011. 

4 


‘‘(ii) FIRST, SECOND, ETC. PAYMENT 
5 
YEAR.—The term ‘first payment year’ 
6 
means, with respect to covered professional 
7 
services furnished by an eligible profes8 
sional, the first year for which an incentive 
9 
payment is made for such services under 
10 
this subsection. The terms ‘second pay11 
ment year’, ‘third payment year’, ‘fourth 
12 
payment year’, and ‘fifth payment year’ 
13 
mean, with respect to covered professional 
14 
services furnished by such eligible profes15 
sional, each successive year immediately 
16 
following the first payment year for such 
17 
professional. 
18 
‘‘(2) MEANINGFUL EHR USER.— 
19 
‘‘(A) IN GENERAL.—For purposes of para20 
graph (1), an eligible professional shall be 
21 


treated as a meaningful EHR user for a report


22 


ing period for a payment year (or, for purposes 

23 


of subsection (a)(7), for a reporting period 

24 


under such subsection for a year) if each of the 

25 


following requirements is met: 

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112 

1 


‘‘(i) MEANINGFUL USE OF CERTIFIED 

2 


EHR TECHNOLOGY.—The eligible profes


3 


sional demonstrates to the satisfaction of 

4 


the Secretary, in accordance with subpara


5 


graph (C)(i), that during such period the 
6 
professional is using certified EHR tech7 
nology in a meaningful manner, which 
8 
shall include the use of electronic pre9 
scribing as determined to be appropriate 
10 
by the Secretary. 
11 
‘‘(ii) INFORMATION EXCHANGE.—The 
12 
eligible professional demonstrates to the 
13 
satisfaction of the Secretary, in accordance 
14 
with subparagraph (C)(i), that during such 
15 
period such certified EHR technology is 
16 
connected in a manner that provides, in 
17 
accordance with law and standards appli18 
cable to the exchange of information, for 
19 
the electronic exchange of health informa20 
tion to improve the quality of health care, 
21 


such as promoting care coordination. 
22 
‘‘(iii) REPORTING ON MEASURES 
23 
USING EHR.—Subject to subparagraph 
24 


(B)(ii) and using such certified EHR tech


25 


nology, the eligible professional submits in-

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113 

1 


formation for such period, in a form and 

2 


manner specified by the Secretary, on such 

3 


clinical quality measures and such other 

4 


measures as selected by the Secretary 

5 


under subparagraph (B)(i). 
6 
The Secretary may provide for the use of alter7 
native means for meeting the requirements of 
8 
clauses (i), (ii), and (iii) in the case of an eligi9 
ble professional furnishing covered professional 
10 
services in a group practice (as defined by the 
11 
Secretary). The Secretary shall seek to improve 
12 
the use of electronic health records and health 
13 
care quality over time by requiring more strin14 
gent measures of meaningful use selected under 
15 
this paragraph. 
16 
‘‘(B) REPORTING ON MEASURES.— 
17 
‘‘(i) SELECTION.—The Secretary shall 
18 
select measures for purposes of subpara19 
graph (A)(iii) but only consistent with the 
20 
following: 
21 


‘‘(I) The Secretary shall provide 

22 


preference to clinical quality measures 

23 


that have been endorsed by the entity 

24 


with a contract with the Secretary 

25 


under section 1890(a). 

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114 

1 


‘‘(II) Prior to any measure being 

2 


selected under this subparagraph, the 

3 


Secretary shall publish in the Federal 

4 


Register such measure and provide for 

5 


a period of public comment on such 
6 
measure. 
7 
‘‘(III) The Secretary shall, to the 
8 
extent practicable, select the same 
9 
measures for purposes of subpara10 
graph (A)(iii) as are selected for qual11 
ity purposes under title XIX. 
12 
‘‘(ii) LIMITATION.—The Secretary 
13 
may not require the electronic reporting of 
14 
information on clinical quality measures 
15 
under subparagraph (A)(iii) unless the 
16 
Secretary has the capacity to accept the in17 
formation electronically, which may be on 
18 
a pilot basis. 
19 
‘‘(iii) COORDINATION OF REPORTING 
20 
OF INFORMATION.—In selecting such 
21 


measures, and in establishing the form and 

22 


manner for reporting measures under sub


23 


paragraph (A)(iii), the Secretary shall seek 

24 


to avoid redundant or duplicative reporting 

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115 

1 


otherwise required, including reporting 

2 


under subsection (k)(2)(C). 
3 
‘‘(C) DEMONSTRATION OF MEANINGFUL 
4 


USE OF CERTIFIED EHR TECHNOLOGY AND IN


5 


FORMATION EXCHANGE.— 
6 
‘‘(i) IN GENERAL.—A professional 
7 
may satisfy the demonstration requirement 
8 
of clauses (i) and (ii) of subparagraph (A) 
9 
through means specified by the Secretary, 
10 
which may include— 
11 
‘‘(I) an attestation; 
12 
‘‘(II) the submission of claims 
13 
with appropriate coding (such as a 
14 
code indicating that a patient encoun15 
ter was documented using certified 
16 
EHR technology); 
17 
‘‘(III) a survey response; 
18 
‘‘(IV) reporting under subpara19 
graph (A)(iii); and 
20 
‘‘(V) other means specified by the 
21 


Secretary. 
22 
‘‘(ii) USE OF PART D DATA.—Not23 


withstanding sections 1860D–15(d)(2)(B) 

24 


and 1860D–15(f)(2), the Secretary may 

25 


use data regarding drug claims submitted 

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116 

1 


for purposes of section 1860D–15 that are 

2 


necessary for purposes of subparagraph 
3 
(A). 
4 


‘‘(3) APPLICATION.— 

5 


‘‘(A) PHYSICIAN REPORTING SYSTEM 
6 
RULES.—Paragraphs (5), (6), and (8) of sub7 
section (k) shall apply for purposes of this sub8 
section in the same manner as they apply for 
9 
purposes of such subsection. 
10 
‘‘(B) COORDINATION WITH OTHER PAY11 
MENTS.—The provisions of this subsection shall 
12 
not be taken into account in applying the provi13 
sions of subsection (m) of this section and of 
14 
section 1833(m) and any payment under such 
15 
provisions shall not be taken into account in 
16 
computing allowable charges under this sub17 
section. 
18 
‘‘(C) LIMITATIONS ON REVIEW.—There 
19 
shall be no administrative or judicial review 
20 
under section 1869, section 1878, or otherwise 
21 


of the determination of any incentive payment 

22 


under this subsection and the payment adjust


23 


ment under subsection (a)(7), including the de


24 


termination of a meaningful EHR user under 

25 


paragraph (2), a limitation under paragraph 

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117 

1 


(1)(B), and the exception under subsection 

2 


(a)(7)(B). 
3 
‘‘(D) POSTING ON WEBSITE.—The Sec4 


retary shall post on the Internet website of the 

5 


Centers for Medicare & Medicaid Services, in an 
6 
easily understandable format, a list of the 
7 
names, business addresses, and business phone 
8 
numbers of the eligible professionals who are 
9 
meaningful EHR users and, as determined ap10 
propriate by the Secretary, of group practices 
11 
receiving incentive payments under paragraph 
12 
(1). 
13 
‘‘(4) CERTIFIED EHR TECHNOLOGY DEFINED.— 
14 
For purposes of this section, the term ‘certified 
15 
EHR technology’ means a qualified electronic health 
16 
record (as defined in 3000(13) of the Public Health 
17 
Service Act) that is certified pursuant to section 
18 
3001(c)(5) of such Act as meeting standards adopt19 
ed under section 3004 of such Act that are applica20 
ble to the type of record involved (as determined by 
21 


the Secretary, such as an ambulatory electronic 

22 


health record for office-based physicians or an inpa


23 


tient hospital electronic health record for hospitals). 

24 


‘‘(5) DEFINITIONS.—For purposes of this sub25 
section: 

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118 


1 


‘‘(A) COVERED PROFESSIONAL SERV


2 


ICES.—The term ‘covered professional services’ 

3 


has the meaning given such term in subsection 

4 


(k)(3). 

5 


‘‘(B) ELIGIBLE PROFESSIONAL.—The term 
6 
‘eligible professional’ means a physician, as de7 
fined in section 1861(r). 
8 
‘‘(C) REPORTING PERIOD.—The term ‘re9 
porting period’ means any period (or periods), 
10 
with respect to a payment year, as specified by 
11 
the Secretary.’’. 
12 
(b) INCENTIVE PAYMENT ADJUSTMENT.—Section 
13 
1848(a) of the Social Security Act (42 U.S.C. 1395w– 
14 
4(a)) is amended by adding at the end the following new 
15 
paragraph: 
16 
‘‘(7) INCENTIVES FOR MEANINGFUL USE OF 
17 
CERTIFIED EHR TECHNOLOGY.— 
18 
‘‘(A) ADJUSTMENT.— 
19 
‘‘(i) IN GENERAL.—Subject to sub20 
paragraphs (B) and (D), with respect to 
21 


covered professional services furnished by 

22 


an eligible professional during 2016 or any 

23 


subsequent payment year, if the eligible 

24 


professional is not a meaningful EHR user 

25 


(as determined under subsection (o)(2)) for 

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119 

1 


a reporting period for the year, the fee 

2 


schedule amount for such services fur


3 


nished by such professional during the year 

4 


(including the fee schedule amount for pur


5 


poses of determining a payment based on 
6 
such amount) shall be equal to the applica7 
ble percent of the fee schedule amount that 
8 
would otherwise apply to such services 
9 
under this subsection (determined after ap10 
plication of paragraph (3) but without re11 
gard to this paragraph). 
12 
‘‘(ii) APPLICABLE PERCENT.—Subject 
13 
to clause (iii), for purposes of clause (i), 
14 
the term ‘applicable percent’ means— 
15 
‘‘(I) for 2016, 99 percent; 
16 
‘‘(II) for 2017, 98 percent; and 
17 
‘‘(III) for 2018 and each subse18 
quent year, 97 percent. 
19 
‘‘(iii) AUTHORITY TO DECREASE AP20 
PLICABLE PERCENTAGE FOR 2019 AND 
21 


SUBSEQUENT YEARS.—For 2019 and each 

22 


subsequent year, if the Secretary finds that 

23 


the proportion of eligible professionals who 

24 


are meaningful EHR users (as determined 

25 


under subsection (o)(2)) is less than 75 

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120 

1 


percent, the applicable percent shall be de


2 


creased by 1 percentage point from the ap


3 


plicable percent in the preceding year, but 

4 


in no case shall the applicable percent be 

5 


less than 95 percent. 
6 
‘‘(B) SIGNIFICANT HARDSHIP EXCEP7 
TION.—The Secretary may, on a case-by-case 
8 
basis, exempt an eligible professional from the 
9 
application of the payment adjustment under 
10 
subparagraph (A) if the Secretary determines, 
11 
subject to annual renewal, that compliance with 
12 
the requirement for being a meaningful EHR 
13 
user would result in a significant hardship, such 
14 
as in the case of an eligible professional who 
15 
practices in a rural area without sufficient 
16 
Internet access. In no case may an eligible pro17 
fessional be granted an exemption under this 
18 
subparagraph for more than 5 years. 
19 
‘‘(C) APPLICATION OF PHYSICIAN REPORT20 
ING SYSTEM RULES.—Paragraphs (5), (6), and 
21 


(8) of subsection (k) shall apply for purposes of 

22 


this paragraph in the same manner as they 

23 


apply for purposes of such subsection. 
24 
‘‘(D) NON-APPLICATION TO HOSPITAL25 
BASED ELIGIBLE PROFESSIONALS.—No pay-

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121 

1 


ment adjustment may be made under subpara


2 


graph (A) in the case of hospital-based eligible 
3 
professionals (as defined in subsection 
4 


(o)(1)(C)(ii)). 

5 


‘‘(E) DEFINITIONS.—For purposes of this 
6 
paragraph: 
7 
‘‘(i) COVERED PROFESSIONAL SERV8 
ICES.—The term ‘covered professional 
9 
services’ has the meaning given such term 
10 
in subsection (k)(3). 
11 
‘‘(ii) ELIGIBLE PROFESSIONAL.—The 
12 
term ‘eligible professional’ means a physi13 
cian, as defined in section 1861(r). 
14 
‘‘(iii) REPORTING PERIOD.—The term 
15 
‘reporting period’ means, with respect to a 
16 
year, a period specified by the Secretary.’’. 
17 
(c) APPLICATION TO CERTAIN HMO-AFFILIATED 
18 
ELIGIBLE PROFESSIONALS.—Section 1853 of the Social 
19 
Security Act (42 U.S.C. 1395w–23) is amended by adding 
20 
at the end the following new subsection: 
21 


‘‘(l) APPLICATION OF ELIGIBLE PROFESSIONAL IN22 
CENTIVES FOR CERTAIN MA ORGANIZATIONS FOR ADOP23 
TION AND MEANINGFUL USE OF CERTIFIED EHR TECH24 
NOLOGY.— 

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122 

1 


‘‘(1) IN GENERAL.—Subject to paragraphs (3) 

2 


and (4), in the case of a qualifying MA organization, 

3 


the provisions of sections 1848(o) and 1848(a)(7) 

4 


shall apply with respect to eligible professionals de


5 


scribed in paragraph (2) of the organization who the 
6 
organization attests under paragraph (6) to be 
7 
meaningful EHR users in a similar manner as they 
8 
apply to eligible professionals under such sections. 
9 
Incentive payments under paragraph (3) shall be 
10 
made to and payment adjustments under paragraph 
11 
(4) shall apply to such qualifying organizations. 
12 
‘‘(2) ELIGIBLE PROFESSIONAL DESCRIBED.— 
13 
With respect to a qualifying MA organization, an eli14 
gible professional described in this paragraph is an 
15 
eligible professional (as defined for purposes of sec16 
tion 1848(o)) who— 
17 
‘‘(A)(i) is employed by the organization, or 
18 
‘‘(ii)(I) is employed by, or is a partner of, 
19 
an entity that through contract with the organi20 
zation furnishes at least 80 percent of the enti21 


ty’s patient care services to enrollees of such or


22 


ganization; and 

23 


‘‘(II) furnishes at least 75 percent of the 

24 


professional services of the eligible professional 

25 


to enrollees of the organization; and 

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123 

1 


‘‘(B) furnishes, on average, at least 20 

2 


hours per week of patient care services. 

3 


‘‘(3) ELIGIBLE PROFESSIONAL INCENTIVE PAY


4 


MENTS.— 

5 


‘‘(A) IN GENERAL.—In applying section 
6 
1848(o) under paragraph (1), instead of the ad7 
ditional payment amount under section 
8 
1848(o)(1)(A) and subject to subparagraph 
9 
(B), the Secretary may substitute an amount 
10 
determined by the Secretary to the extent fea11 
sible and practical to be similar to the esti12 
mated amount in the aggregate that would be 
13 
payable if payment for services furnished by 
14 
such professionals was payable under part B in15 
stead of this part. 
16 
‘‘(B) AVOIDING DUPLICATION OF PAY17 
MENTS.— 
18 
‘‘(i) IN GENERAL.—If an individual is 
19 
an eligible professional described in para20 
graph (2) and also is eligible for the max21 


imum incentive payment under section 

22 


1848(o)(1)(A) for the same payment pe


23 


riod, the payment incentive shall be made 

24 


only under such section and not under this 

25 


subsection. 

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124 

1 


‘‘(ii) METHODS.—In the case of an in


2 


dividual who is an eligible professional de


3 


scribed in paragraph (2) and also is eligi


4 


ble for an incentive payment under section 

5 


1848(o)(1)(A) but is not described in 
6 
clause (i) for the same payment period, the 
7 
Secretary shall develop a process— 
8 
‘‘(I) to ensure that duplicate pay9 
ments are not made with respect to 
10 
an eligible professional both under 
11 
this subsection and under section 
12 
1848(o)(1)(A); and 
13 
‘‘(II) to collect data from Medi14 
care Advantage organizations to en15 
sure against such duplicate payments. 
16 
‘‘(C) FIXED SCHEDULE FOR APPLICATION 
17 
OF LIMITATION ON INCENTIVE PAYMENTS FOR 
18 
ALL ELIGIBLE PROFESSIONALS.—In applying 
19 
section 1848(o)(1)(B)(ii) under subparagraph 
20 
(A), in accordance with rules specified by the 
21 


Secretary, a qualifying MA organization shall 

22 


specify a year (not earlier than 2011) that shall 

23 


be treated as the first payment year for all eli


24 


gible professionals with respect to such organi25 
zation. 

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125 

1 


‘‘(4) PAYMENT ADJUSTMENT.— 

2 


‘‘(A) IN GENERAL.—In applying section 

3 


1848(a)(7) under paragraph (1), instead of the 

4 


payment adjustment being an applicable per


5 


cent of the fee schedule amount for a year 
6 
under such section, subject to subparagraph 
7 
(D), the payment adjustment under paragraph 
8 
(1) shall be equal to the percent specified in 
9 
subparagraph (B) for such year of the payment 
10 
amount otherwise provided under this section 
11 
for such year. 
12 
‘‘(B) SPECIFIED PERCENT.—The percent 
13 
specified under this subparagraph for a year is 
14 
100 percent minus a number of percentage 
15 
points equal to the product of— 
16 
‘‘(i) the number of percentage points 
17 
by which the applicable percent (under sec18 
tion 1848(a)(7)(A)(ii)) for the year is less 
19 
than 100 percent; and 
20 
‘‘(ii) the Medicare physician expendi21 


ture proportion specified in subparagraph 

22 


(C) for the year. 

23 


‘‘(C) MEDICARE PHYSICIAN EXPENDITURE 

24 


PROPORTION.—The Medicare physician expend


25 


iture proportion under this subparagraph for a 

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126 

1 


year is the Secretary’s estimate of the propor


2 


tion, of the expenditures under parts A and B 

3 


that are not attributable to this part, that are 
4 
attributable to expenditures for physicians’ 
5 


services. 
6 
‘‘(D) APPLICATION OF PAYMENT ADJUST7 
MENT.—In the case that a qualifying MA orga8 
nization attests that not all eligible profes9 
sionals are meaningful EHR users with respect 
10 
to a year, the Secretary shall apply the payment 
11 
adjustment under this paragraph based on the 
12 
proportion of such eligible professionals that are 
13 
not meaningful EHR users for such year. 
14 
‘‘(5) QUALIFYING MA ORGANIZATION DE15 
FINED.—In this subsection and subsection (m), the 
16 
term ‘qualifying MA organization’ means a Medicare 
17 
Advantage organization that is organized as a health 
18 
maintenance organization (as defined in section 
19 
2791(b)(3) of the Public Health Service Act). 
20 
‘‘(6) MEANINGFUL EHR USER ATTESTATION.— 
21 


For purposes of this subsection and subsection (m), 

22 


a qualifying MA organization shall submit an attes


23 


tation, in a form and manner specified by the Sec


24 


retary which may include the submission of such at-

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127 


1 


testation as part of submission of the initial bid 

2 


under section 1854(a)(1)(A)(iv), identifying— 

3 


‘‘(A) whether each eligible professional de


4 


scribed in paragraph (2), with respect to such 

5 


organization is a meaningful EHR user (as de6 
fined in section 1848(o)(3)) for a year specified 
7 
by the Secretary; and 
8 
‘‘(B) whether each eligible hospital de9 
scribed in subsection (m)(1), with respect to 
10 
such organization, is a meaningful EHR user 
11 
(as defined in section 1886(n)(3)) for an appli12 
cable period specified by the Secretary.’’. 
13 
(d) CONFORMING AMENDMENTS.—Section 1853 of 
14 
the Social Security Act (42 U.S.C. 1395w–23) is amend15 
ed— 
16 
(1) in subsection (a)(1)(A), by striking ‘‘and 
17 
(i)’’ and inserting ‘‘(i), and (l)’’; 
18 
(2) in subsection (c)— 
19 
(A) in paragraph (1)(D)(i), by striking 
20 
‘‘section 1886(h)’’ and inserting ‘‘sections 
21 


1848(o) and 1886(h)’’; and 

22 


(B) in paragraph (6)(A), by inserting after 

23 


‘‘under part B,’’ the following: ‘‘excluding ex


24 


penditures attributable to subsections (a)(7) 

25 


and (o) of section 1848,’’; and 

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128 

1 


(3) in subsection (f), by inserting ‘‘and for pay


2 


ments under subsection (l)’’ after ‘‘with the organi


3 


zation’’. 
4 
(e) CONFORMING AMENDMENTS TO E-PRE5 
SCRIBING.— 
6 
(1) Section 1848(a)(5)(A) of the Social Security 
7 
Act (42 U.S.C. 1395w–4(a)(5)(A)) is amended— 
8 
(A) in clause (i), by striking ‘‘or any sub9 
sequent year’’ and inserting ‘‘, 2013, 2014, or 
10 
2015’’; and 
11 
(B) in clause (ii), by striking ‘‘and each 
12 
subsequent year’’ and inserting ‘‘and 2015’’. 
13 
(2) Section 1848(m)(2) of such Act (42 U.S.C. 
14 
1395w–4(m)(2)) is amended— 
15 
(A) in subparagraph (A), by striking ‘‘For 
16 
2009’’ and inserting ‘‘Subject to subparagraph 
17 
(D), for 2009’’; and 
18 
(B) by adding at the end the following new 
19 
subparagraph: 
20 
‘‘(D) LIMITATION WITH RESPECT TO EHR 
21 


INCENTIVE PAYMENTS.—The provisions of this 

22 


paragraph shall not apply to an eligible profes


23 


sional (or, in the case of a group practice under 

24 


paragraph (3)(C), to the group practice) if, for 

25 


the reporting period the eligible professional (or 

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129 

1 


group practice) receives an incentive payment 

2 


under subsection (o)(1)(A) with respect to a 

3 


certified EHR technology (as defined in sub


4 


section (o)(6)(A)) that has the capability of 

5 


electronic prescribing.’’. 

6 
SEC. 4312. INCENTIVES FOR HOSPITALS. 

7 
(a) INCENTIVE PAYMENT.—Section 1886 of the So


8 
cial Security Act (42 U.S.C. 1395ww) is amended by add


9 
ing at the end the following new subsection: 
10 
‘‘(n) INCENTIVES FOR ADOPTION AND MEANINGFUL 
11 
USE OF CERTIFIED EHR TECHNOLOGY.— 
12 
‘‘(1) IN GENERAL.—Subject to the succeeding 
13 
provisions of this subsection, with respect to inpa14 
tient hospital services furnished by an eligible hos15 
pital during a payment year (as defined in para16 
graph (2)(G)), if the eligible hospital is a meaningful 
17 
EHR user (as determined under paragraph (3)) for 
18 
the reporting period with respect to such year, in ad19 
dition to the amount otherwise paid under this sec20 
tion, there also shall be paid to the eligible hospital, 
21 


from the Federal Hospital Insurance Trust Fund es


22 


tablished under section 1817, an amount equal to 

23 


the applicable amount specified in paragraph (2)(A) 

24 


for the hospital for such payment year. 

25 


‘‘(2) PAYMENT AMOUNT.— 

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130 

1 


‘‘(A) IN GENERAL.—Subject to the suc


2 


ceeding subparagraphs of this paragraph, the 

3 


applicable amount specified in this subpara


4 


graph for an eligible hospital for a payment 

5 


year is equal to the product of the following: 
6 
‘‘(i) INITIAL AMOUNT.—The sum of— 
7 
‘‘(I) the base amount specified in 
8 
subparagraph (B); plus 
9 
‘‘(II) the discharge related 
10 
amount specified in subparagraph (C) 
11 
for a 12-month period selected by the 
12 
Secretary with respect to such pay13 
ment year. 
14 
‘‘(ii) MEDICARE SHARE.—The Medi15 
care share as specified in subparagraph 
16 
(D) for the hospital for a period selected 
17 
by the Secretary with respect to such pay18 
ment year. 
19 
‘‘(iii) TRANSITION FACTOR.—The 
20 
transition factor specified in subparagraph 
21 


(E) for the hospital for the payment year. 

22 


‘‘(B) BASE AMOUNT.—The base amount 

23 


specified in this subparagraph is $2,000,000. 

24 


‘‘(C) DISCHARGE RELATED AMOUNT.—The 

25 


discharge related amount specified in this sub-

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131 

1 


paragraph for a 12-month period selected by 

2 


the Secretary shall be determined as the sum of 

3 


the amount, based upon total discharges (re


4 


gardless of any source of payment) for the pe


5 


riod, for each discharge up to the 23,000th dis6 
charge as follows: 
7 
‘‘(i) For the 1,150th through the 
8 
9,200nd discharge, $200. 
9 
‘‘(ii) For the 9,201st through the 
10 
13,800th discharge, 50 percent of the 
11 
amount specified in clause (i). 
12 
‘‘(iii) For the 13,801st through the 
13 
23,000th discharge, 30 percent of the 
14 
amount specified in clause (i). 
15 
‘‘(D) MEDICARE SHARE.—The Medicare 
16 
share specified under this subparagraph for a 
17 
hospital for a period selected by the Secretary 
18 
for a payment year is equal to the fraction— 
19 
‘‘(i) the numerator of which is the 
20 
sum (for such period and with respect to 
21 


the hospital) of— 

22 


‘‘(I) the number of inpatient-bed


23 


days (as established by the Secretary) 

24 


which are attributable to individuals 

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132 

1 


with respect to whom payment may be 

2 


made under part A; and 

3 


‘‘(II) the number of inpatient


4 


bed-days (as so established) which are 

5 


attributable to individuals who are en6 
rolled with a Medicare Advantage or7 
ganization under part C; and 
8 
‘‘(ii) the denominator of which is the 
9 
product of— 
10 
‘‘(I) the total number of inpa11 
tient-bed-days with respect to the hos12 
pital during such period; and 
13 
‘‘(II) the total amount of the hos14 
pital’s charges during such period, not 
15 
including any charges that are attrib16 
utable to charity care (as such term is 
17 
used for purposes of hospital cost re18 
porting under this title), divided by 
19 
the total amount of the hospital’s 
20 
charges during such period. 
21 


Insofar as the Secretary determines that data 

22 


are not available on charity care necessary to 

23 


calculate the portion of the formula specified in 

24 


clause (ii)(II), the Secretary shall use data on 

25 


uncompensated care and may adjust such data 

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133 

1 


so as to be an appropriate proxy for charity 

2 


care including a downward adjustment to elimi


3 


nate bad debt data from uncompensated care 

4 


data. In the absence of the data necessary, with 

5 


respect to a hospital, for the Secretary to com6 
pute the amount described in clause (ii)(II), the 
7 
amount under such clause shall be deemed to 
8 
be 1. In the absence of data, with respect to a 
9 
hospital, necessary to compute the amount de10 
scribed in clause (i)(II), the amount under such 
11 
clause shall be deemed to be 0. 
12 
‘‘(E) TRANSITION FACTOR SPECIFIED.— 
13 
‘‘(i) IN GENERAL.—Subject to clause 
14 
(ii), the transition factor specified in this 
15 
subparagraph for an eligible hospital for a 
16 
payment year is as follows: 
17 
‘‘(I) For the first payment year 
18 
for such hospital, 1. 
19 
‘‘(II) For the second payment 
20 
year for such hospital, 3/4. 
21 


‘‘(III) For the third payment 

22 


year for such hospital, 1/2. 

23 


‘‘(IV) For the fourth payment 

24 


year for such hospital, 1/4. 

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134 

1 


‘‘(V) For any succeeding pay


2 


ment year for such hospital, 0. 

3 


‘‘(ii) PHASE DOWN FOR ELIGIBLE 
4 
HOSPITALS FIRST ADOPTING EHR AFTER 
5 


2013.—If the first payment year for an eli6 
gible hospital is after 2013, then the tran7 
sition factor specified in this subparagraph 
8 
for a payment year for such hospital is the 
9 
same as the amount specified in clause (i) 
10 
for such payment year for an eligible hos11 
pital for which the first payment year is 
12 
2013. If the first payment year for an eli13 
gible hospital is after 2015 then the transi14 
tion factor specified in this subparagraph 
15 
for such hospital and for such year and 
16 
any subsequent year shall be 0. 
17 
‘‘(F) FORM OF PAYMENT.—The payment 
18 
under this subsection for a payment year may 
19 
be in the form of a single consolidated payment 
20 
or in the form of such periodic installments as 
21 


the Secretary may specify. 

22 


‘‘(G) PAYMENT YEAR DEFINED.— 

23 


‘‘(i) IN GENERAL.—For purposes of 

24 


this subsection, the term ‘payment year’ 

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135 

1 


means a fiscal year beginning with fiscal 

2 


year 2011. 

3 


‘‘(ii) FIRST, SECOND, ETC. PAYMENT 
4 
YEAR.—The term ‘first payment year’ 
5 


means, with respect to inpatient hospital 
6 
services furnished by an eligible hospital, 
7 
the first fiscal year for which an incentive 
8 
payment is made for such services under 
9 
this subsection. The terms ‘second pay10 
ment year’, ‘third payment year’, and 
11 
‘fourth payment year’ mean, with respect 
12 
to an eligible hospital, each successive year 
13 
immediately following the first payment 
14 
year for that hospital. 
15 
‘‘(3) MEANINGFUL EHR USER.— 
16 
‘‘(A) IN GENERAL.—For purposes of para17 
graph (1), an eligible hospital shall be treated 
18 
as a meaningful EHR user for a reporting pe19 
riod for a payment year (or, for purposes of 
20 
subsection (b)(3)(B)(ix), for a reporting period 
21 


under such subsection for a fiscal year) if the 

22 


following requirements are met: 

23 


‘‘(i) MEANINGFUL USE OF CERTIFIED 

24 


EHR TECHNOLOGY.—The eligible hospital 

25 


demonstrates to the satisfaction of the Sec


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136 

1 


retary, in accordance with subparagraph 

2 


(C)(i), that during such period the hospital 

3 


is using certified EHR technology in a 

4 


meaningful manner. 

5 


‘‘(ii) INFORMATION EXCHANGE.—The 
6 
eligible hospital demonstrates to the satis7 
faction of the Secretary, in accordance 
8 
with subparagraph (C)(i), that during such 
9 
period such certified EHR technology is 
10 
connected in a manner that provides, in 
11 
accordance with law and standards appli12 
cable to the exchange of information, for 
13 
the electronic exchange of health informa14 
tion to improve the quality of health care, 
15 
such as promoting care coordination. 
16 
‘‘(iii) REPORTING ON MEASURES 
17 
USING EHR.—Subject to subparagraph 
18 
(B)(ii) and using such certified EHR tech19 
nology, the eligible hospital submits infor20 
mation for such period, in a form and 
21 


manner specified by the Secretary, on such 

22 


clinical quality measures and such other 

23 


measures as selected by the Secretary 

24 


under subparagraph (B)(i). 

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1 


The Secretary shall seek to improve the use of 

2 


electronic health records and health care quality 

3 


over time by requiring more stringent measures 

4 


of meaningful use selected under this para


5 


graph. 
6 
‘‘(B) REPORTING ON MEASURES.— 
7 
‘‘(i) SELECTION.—The Secretary may 
8 
select measures for purposes of subpara9 
graph (A)(iii) but only consistent with the 
10 
following: 
11 
‘‘(I) The Secretary shall provide 
12 
preference to clinical quality measures 
13 
that have been selected for purposes 
14 
of applying subsection (b)(3)(B)(viii) 
15 
or that have been endorsed by the en16 
tity with a contract with the Secretary 
17 
under section 1890(a). 
18 
‘‘(II) Prior to any measure (other 
19 
than a clinical quality measure that 
20 
has been selected for purposes of ap21 
plying subsection (b)(3)(B)(viii)) 
22 


being selected under this subpara


23 


graph, the Secretary shall publish in 

24 


the Federal Register such measure 

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138 

1 


and provide for a period of public 

2 


comment on such measure. 
3 
‘‘(ii) LIMITATIONS.—The Secretary 
4 


may not require the electronic reporting of 

5 


information on clinical quality measures 
6 
under subparagraph (A)(iii) unless the 
7 
Secretary has the capacity to accept the in8 
formation electronically, which may be on 
9 
a pilot basis. 
10 
‘‘(iii) COORDINATION OF REPORTING 
11 
OF INFORMATION.—In selecting such 
12 
measures, and in establishing the form and 
13 
manner for reporting measures under sub14 
paragraph (A)(iii), the Secretary shall seek 
15 
to avoid redundant or duplicative reporting 
16 
with reporting otherwise required, includ17 
ing reporting under subsection 
18 
(b)(3)(B)(viii). 
19 
‘‘(C) DEMONSTRATION OF MEANINGFUL 
20 
USE OF CERTIFIED EHR TECHNOLOGY AND IN21 


FORMATION EXCHANGE.— 

22 


‘‘(i) IN GENERAL.—A hospital may 

23 


satisfy the demonstration requirement of 

24 


clauses (i) and (ii) of subparagraph (A) 

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139 

1 


through means specified by the Secretary, 

2 


which may include— 

3 


‘‘(I) an attestation; 

4 


‘‘(II) the submission of claims 

5 


with appropriate coding (such as a 
6 
code indicating that inpatient care 
7 
was documented using certified EHR 
8 
technology); 
9 
‘‘(III) a survey response; 
10 
‘‘(IV) reporting under subpara11 
graph (A)(iii); and 
12 
‘‘(V) other means specified by the 
13 
Secretary. 
14 
‘‘(ii) USE OF PART D DATA.—Not15 
withstanding sections 1860D–15(d)(2)(B) 
16 
and 1860D–15(f)(2), the Secretary may 
17 
use data regarding drug claims submitted 
18 
for purposes of section 1860D–15 that are 
19 
necessary for purposes of subparagraph 
20 
(A). 
21 


‘‘(4) APPLICATION.— 
22 
‘‘(A) LIMITATIONS ON REVIEW.—There 
23 


shall be no administrative or judicial review 

24 


under section 1869, section 1878, or otherwise 

25 


of the determination of any incentive payment 

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1 


under this subsection and the payment adjust


2 


ment under subsection (b)(3)(B)(ix), including 

3 


the determination of a meaningful EHR user 

4 


under paragraph (3), determination of meas


5 


ures applicable to services furnished by eligible 
6 
hospitals under this subsection, and the excep7 
tion under subsection (b)(3)(B)(ix)(II). 
8 
‘‘(B) POSTING ON WEBSITE.—The Sec9 
retary shall post on the Internet website of the 
10 
Centers for Medicare & Medicaid Services, in an 
11 
easily understandable format, a list of the 
12 
names of the eligible hospitals that are mean13 
ingful EHR users under this subsection or sub14 
section (b)(3)(B)(ix) and other relevant data as 
15 
determined appropriate by the Secretary. The 
16 
Secretary shall ensure that a hospital has the 
17 
opportunity to review the other relevant data 
18 
that are to be made public with respect to the 
19 
hospital prior to such data being made public. 
20 
‘‘(5) CERTIFIED EHR TECHNOLOGY DEFINED.— 
21 


The term ‘certified EHR technology’ has the mean


22 


ing given such term in section 1848(o)(4). 

23 


‘‘(6) DEFINITIONS.—For purposes of this sub24 
section: 

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1 


‘‘(A) ELIGIBLE HOSPITAL.—The term ‘eli


2 


gible hospital’ means a subsection (d) hospital. 

3 


‘‘(B) REPORTING PERIOD.—The term ‘re


4 


porting period’ means any period (or periods), 

5 


with respect to a payment year, as specified by 
6 
the Secretary.’’. 
7 
(b) INCENTIVE MARKET BASKET ADJUSTMENT.— 
8 
Section 1886(b)(3)(B) of the Social Security Act (42 
9 
U.S.C. 1395ww(b)(3)(B)) is amended— 
10 
(1) in clause (viii)(I), by inserting ‘‘(or, begin11 
ning with fiscal year 2016, by one-quarter)’’ after 
12 
‘‘2.0 percentage points’’; and 
13 
(2) by adding at the end the following new 
14 
clause: 
15 
‘‘(ix)(I) For purposes of clause (i) for fiscal year 
16 
2016 and each subsequent fiscal year, in the case of an 
17 
eligible hospital (as defined in subsection (n)(6)(A)) that 
18 
is not a meaningful EHR user (as defined in subsection 
19 
(n)(3)) for the reporting period for such fiscal year, three20 
quarters of the applicable percentage increase otherwise 
21 
applicable under clause (i) for such fiscal year shall be 
22 
reduced by 331/3 percent for fiscal year 2016, 662/3 per23 
cent for fiscal year 2017, and 100 percent for fiscal year 
24 
2018 and each subsequent fiscal year. Such reduction 
25 
shall apply only with respect to the fiscal year involved 

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142 
1 
and the Secretary shall not take into account such reduc2 
tion in computing the applicable percentage increase under 
3 
clause (i) for a subsequent fiscal year. 
4 


‘‘(II) The Secretary may, on a case-by-case basis, ex5 
empt a subsection (d) hospital from the application of sub6 
clause (I) with respect to a fiscal year if the Secretary 
7 
determines, subject to annual renewal, that requiring such 
8 
hospital to be a meaningful EHR user during such fiscal 
9 
year would result in a significant hardship, such as in the 
10 
case of a hospital in a rural area without sufficient Inter11 
net access. In no case may a hospital be granted an ex12 
emption under this subclause for more than 5 years. 
13 
‘‘(III) For fiscal year 2016 and each subsequent fis14 
cal year, a State in which hospitals are paid for services 
15 
under section 1814(b)(3) shall adjust the payments to 
16 
each subsection (d) hospital in the State that is not a 
17 
meaningful EHR user (as defined in subsection (n)(3)) 
18 
in a manner that is designed to result in an aggregate 
19 
reduction in payments to hospitals in the State that is 
20 
equivalent to the aggregate reduction that would have oc21 
curred if payments had been reduced to each subsection 
22 
(d) hospital in the State in a manner comparable to the 
23 
reduction under the previous provisions of this clause. The 
24 
State shall report to the Secretary the methodology it will 

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143 
1 
use to make the payment adjustment under the previous 
2 
sentence. 
3 


‘‘(IV) For purposes of this clause, the term ‘reporting 
4 
period’ means, with respect to a fiscal year, any period 
5 
(or periods), with respect to the fiscal year, as specified 
6 
by the Secretary.’’. 
7 
(c) APPLICATION TO CERTAIN HMO-AFFILIATED 
8 
ELIGIBLE HOSPITALS.—Section 1853 of the Social Secu9 
rity Act (42 U.S.C. 1395w-23), as amended by section 
10 
l311(c), is further amended by adding at the end the 
11 
following new subsection: 
12 
‘‘(m) APPLICATION OF ELIGIBLE HOSPITAL INCEN13 
TIVES FOR CERTAIN MA ORGANIZATIONS FOR ADOPTION 
14 
AND MEANINGFUL USE OF CERTIFIED EHR TECH15 
NOLOGY.— 
16 
‘‘(1) APPLICATION.—Subject to paragraphs (3) 
17 
and (4), in the case of a qualifying MA organization, 
18 
the provisions of sections 1886(n) and 
19 
1886(b)(3)(B)(ix) shall apply with respect to eligible 
20 
hospitals described in paragraph (2) of the organiza21 


tion which the organization attests under subsection 

22 


(l)(6) to be meaningful EHR users in a similar man


23 


ner as they apply to eligible hospitals under such 

24 


sections. Incentive payments under paragraph (3) 

25 


shall be made to and payment adjustments under 

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144 

1 


paragraph (4) shall apply to such qualifying organi


2 


zations. 

3 


‘‘(2) ELIGIBLE HOSPITAL DESCRIBED.—With 

4 


respect to a qualifying MA organization, an eligible 

5 


hospital described in this paragraph is an eligible 
6 
hospital that is under common corporate governance 
7 
with such organization and serves individuals en8 
rolled under an MA plan offered by such organiza9 
tion. 
10 
‘‘(3) ELIGIBLE HOSPITAL INCENTIVE PAY11 
MENTS.— 
12 
‘‘(A) IN GENERAL.—In applying section 
13 
1886(n)(2) under paragraph (1), instead of the 
14 
additional payment amount under section 
15 
1886(n)(2), there shall be substituted an 
16 
amount determined by the Secretary to be simi17 
lar to the estimated amount in the aggregate 
18 
that would be payable if payment for services 
19 
furnished by such hospitals was payable under 
20 
part A instead of this part. In implementing the 
21 


previous sentence, the Secretary— 

22 


‘‘(i) shall, insofar as data to deter


23 


mine the discharge related amount under 

24 


section 1886(n)(2)(C) for an eligible hos


25 


pital are not available to the Secretary, use 

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145 

1 


such alternative data and methodology to 

2 


estimate such discharge related amount as 

3 


the Secretary determines appropriate; and 

4 


‘‘(ii) shall, insofar as data to deter


5 


mine the medicare share described in sec6 
tion 1886(n)(2)(D) for an eligible hospital 
7 
are not available to the Secretary, use such 
8 
alternative data and methodology to esti9 
mate such share, which data and method10 
ology may include use of the inpatient bed 
11 
days (or discharges) with respect to an eli12 
gible hospital during the appropriate pe13 
riod which are attributable to both individ14 
uals for whom payment may be made 
15 
under part A or individuals enrolled in an 
16 
MA plan under a Medicare Advantage or17 
ganization under this part as a proportion 
18 
of the total number of patient-bed-days (or 
19 
discharges) with respect to such hospital 
20 
during such period. 
21 
‘‘(B) AVOIDING DUPLICATION OF PAY22 


MENTS.— 

23 


‘‘(i) IN GENERAL.—In the case of a 

24 


hospital that for a payment year is an eli


25 


gible hospital described in paragraph (2), 

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146 


1 


is an eligible hospital under section 

2 


1886(n), and for which at least one-third 

3 


of their discharges (or bed-days) of Medi


4 


care patients for the year are covered 

5 


under part A, payment for the payment 
6 
year shall be made only under section 
7 
1886(n) and not under this subsection. 
8 
‘‘(ii) METHODS.—In the case of a 
9 
hospital that is an eligible hospital de10 
scribed in paragraph (2) and also is eligi11 
ble for an incentive payment under section 
12 
1886(n) but is not described in clause (i) 
13 
for the same payment period, the Secretary 
14 
shall develop a process— 
15 
‘‘(I) to ensure that duplicate pay16 
ments are not made with respect to 
17 
an eligible hospital both under this 
18 
subsection and under section 1886(n); 
19 
and 
20 
‘‘(II) to collect data from Medi21 


care Advantage organizations to en


22 


sure against such duplicate payments. 

23 


‘‘(4) PAYMENT ADJUSTMENT.— 

24 


‘‘(A) Subject to paragraph (3), in the case 

25 


of a qualifying MA organization (as defined in 

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147 

1 


section 1853(l)(5)), if, according to the attesta


2 


tion of the organization submitted under sub


3 


section (l)(6) for an applicable period, one or 

4 


more eligible hospitals (as defined in section 

5 


1886(n)(6)(A)) that are under common cor6 
porate governance with such organization and 
7 
that serve individuals enrolled under a plan of8 
fered by such organization are not meaningful 
9 
EHR users (as defined in section 1886(n)(3)) 
10 
with respect to a period, the payment amount 
11 
payable under this section for such organization 
12 
for such period shall be the percent specified in 
13 
subparagraph (B) for such period of the pay14 
ment amount otherwise provided under this sec15 
tion for such period. 
16 
‘‘(B) SPECIFIED PERCENT.—The percent 
17 
specified under this subparagraph for a year is 
18 
100 percent minus a number of percentage 
19 
points equal to the product of— 
20 
‘‘(i) the number of the percentage 
21 
point reduction effected under section 
22 


1886(b)(3)(B)(ix)(I) for the period; and 

23 


‘‘(ii) the Medicare hospital expendi


24 


ture proportion specified in subparagraph 

25 


(C) for the year. 

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1 


‘‘(C) MEDICARE HOSPITAL EXPENDITURE 

2 


PROPORTION.—The Medicare hospital expendi


3 


ture proportion under this subparagraph for a 

4 


year is the Secretary’s estimate of the propor


5 


tion, of the expenditures under parts A and B 
6 
that are not attributable to this part, that are 
7 
attributable to expenditures for inpatient hos8 
pital services. 
9 
‘‘(D) APPLICATION OF PAYMENT ADJUST10 
MENT.—In the case that a qualifying MA orga11 
nization attests that not all eligible hospitals 
12 
are meaningful EHR users with respect to an 
13 
applicable period, the Secretary shall apply the 
14 
payment adjustment under this paragraph 
15 
based on a methodology specified by the Sec16 
retary, taking into account the proportion of 
17 
such eligible hospitals, or discharges from such 
18 
hospitals, that are not meaningful EHR users 
19 
for such period.’’. 
20 
(d) CONFORMING AMENDMENTS.— 
21 


(1) Section 1814(b) of the Social Security Act 

22 


(42 U.S.C. 1395f(b)) is amended— 

23 


(A) in paragraph (3), in the matter pre


24 


ceding subparagraph (A), by inserting ‘‘, sub-

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1 


ject to section 1886(d)(3)(B)(ix)(III),’’ after 

2 


‘‘then’’; and 

3 


(B) by adding at the end the following: 

4 


‘‘For purposes of applying paragraph (3), there 

5 


shall be taken into account incentive payments, 
6 
and payment adjustments under subsection 
7 
(b)(3)(B)(ix) or (n) of section 1886.’’. 
8 
(2) Section 1851(i)(1) of the Social Security 
9 
Act (42 U.S.C. 1395w–21(i)(1)) is amended by 
10 
striking ‘‘and 1886(h)(3)(D)’’ and inserting 
11 
‘‘1886(h)(3)(D), and 1853(m)’’. 
12 
(3) Section 1853 of the Social Security Act (42 
13 
U.S.C. 1395w–23), as amended by section 
14 
4311(d)(1), is amended— 
15 
(A) in subsection (c)— 
16 
(i) in paragraph (1)(D)(i), by striking 
17 
‘‘1848(o)’’ and inserting ‘‘, 1848(o), and 
18 
1886(n)’’; and 
19 
(ii) in paragraph (6)(A), by inserting 
20 
‘‘and subsections (b)(3)(B)(ix) and (n) of 
21 


section 1886’’ after ‘‘section 1848’’; and 

22 


(B) in subsection (f), by inserting ‘‘and 

23 


subsection (m)’’ after ‘‘under subsection (l)’’. 

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150 

1 
SEC. 4313. TREATMENT OF PAYMENTS AND SAVINGS; IM2 


PLEMENTATION FUNDING. 

3 


(a) PREMIUM HOLD HARMLESS.— 

4 


(1) IN GENERAL.—Section 1839(a)(1) of the 

5 


Social Security Act (42 U.S.C. 1395r(a)(1)) is 
6 
amended by adding at the end the following: ‘‘In ap7 
plying this paragraph there shall not be taken into 
8 
account additional payments under section 1848(o) 
9 
and section 1853(l)(3) and the Government con10 
tribution under section 1844(a)(3).’’. 
11 
(2) PAYMENT.—Section 1844(a) of such Act 
12 
(42 U.S.C. 1395w(a)) is amended— 
13 
(A) in paragraph (2), by striking the pe14 
riod at the end and inserting ‘‘; plus’’; and 
15 
(B) by adding at the end the following new 
16 
paragraph: 
17 
‘‘(3) a Government contribution equal to the 
18 
amount of payment incentives payable under sec19 
tions 1848(o) and 1853(l)(3).’’. 
20 
(b) MEDICARE IMPROVEMENT FUND.—Section 1898 
21 
of the Social Security Act (42 U.S.C. 1395iii), as added 
22 
by section 7002(a) of the Supplemental Appropriations 
23 
Act, 2008 (Public Law 110–252) and as amended by sec24 
tion 188(a)(2) of the Medicare Improvements for Patients 
25 
and Providers Act of 2008 (Public Law 110–275; 122 

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151 
1 
Stat. 2589) and by section 6 of the QI Program Supple2 
mental Funding Act of 2008, is amended— 
3 


(1) in subsection (a)— 

4 


(A) by inserting ‘‘medicare’’ before ‘‘fee


5 


for-service’’; and 
6 
(B) by inserting before the period at the 
7 
end the following: ‘‘including, but not limited 
8 
to, an increase in the conversion factor under 
9 
section 1848(d) to address, in whole or in part, 
10 
any projected shortfall in the conversion factor 
11 
for 2014 relative to the conversion factor for 
12 
2008 and adjustments to payments for items 
13 
and services furnished by providers of services 
14 
and suppliers under such original medicare fee15 
for-service program’’; and 
16 
(2) in subsection (b)— 
17 
(A) in paragraph (1), by striking ‘‘during 
18 
fiscal year 2014,’’ and all that follows and in19 
serting the following: ‘‘during— 
20 
‘‘(A) fiscal year 2014, $22,290,000,000; 
21 
and 
22 


‘‘(B) fiscal year 2020 and each subsequent 

23 


fiscal year, the Secretary’s estimate, as of July 

24 


1 of the fiscal year, of the aggregate reduction 

25 


in expenditures under this title during the pre-

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152 

1 


ceding fiscal year directly resulting from the re


2 


duction in payment amounts under sections 

3 


1848(a)(7), 1853(l)(4), 1853(m)(4), and 

4 


1886(b)(3)(B)(ix).’’; and 

5 


(B) by adding at the end the following new 
6 
paragraph: 
7 
‘‘(4) NO EFFECT ON PAYMENTS IN SUBSE8 
QUENT YEARS.—In the case that expenditures from 
9 
the Fund are applied to, or otherwise affect, a pay10 
ment rate for an item or service under this title for 
11 
a year, the payment rate for such item or service 
12 
shall be computed for a subsequent year as if such 
13 
application or effect had never occurred.’’. 
14 
(c) IMPLEMENTATION FUNDING.—In addition to 
15 
funds otherwise available, out of any funds in the Treas16 
ury not otherwise appropriated, there are appropriated to 
17 
the Secretary of Health and Human Services for the Cen18 
ter for Medicare & Medicaid Services Program Manage19 
ment Account, $60,000,000 for each of fiscal years 2009 
20 
through 2015 and $30,000,000 for each succeeding fiscal 
21 
year through fiscal year 2019, which shall be available for 
22 
purposes of carrying out the provisions of (and amend23 
ments made by) this part. Amounts appropriated under 
24 
this subsection for a fiscal year shall be available until ex25 
pended. 

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153 

1 
SEC. 4314. STUDY ON APPLICATION OF HIT PAYMENT IN2 


CENTIVES FOR PROVIDERS NOT RECEIVING 

3 


OTHER INCENTIVE PAYMENTS. 

4 


(a) STUDY.— 

5 


(1) IN GENERAL.—The Secretary of Health and 
6 
Human Services shall conduct a study to determine 
7 
the extent to which and manner in which payment 
8 
incentives (such as under title XVIII or XIX of the 
9 
Social Security Act) and other funding for purposes 
10 
of implementing and using qualified health informa11 
tion technology should be made available to health 
12 
care providers who are receiving minimal or no pay13 
ment incentives or other funding under this Act, 
14 
under title XVIII or XIX of the Social Security Act, 
15 
or otherwise, for such purposes. 
16 
(2) DETAILS OF STUDY.—Such study shall in17 
clude an examination of— 
18 
(A) the adoption rates of qualified health 
19 
information technology by such health care pro20 
viders; 
21 


(B) the clinical utility of such technology 

22 


by such health care providers; 

23 


(C) whether the services furnished by such 

24 


health care providers are appropriate for or 

25 


would benefit from the use of such technology; 

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154 

1 


(D) the extent to which such health care 

2 


providers work in settings that might otherwise 

3 


receive an incentive payment or other funding 

4 


under this Act, title XVIII or XIX of the Social 

5 


Security Act, or otherwise; 
6 
(E) the potential costs and the potential 
7 
benefits of making payment incentives and 
8 
other funding available to such health care pro9 
viders; and 
10 
(F) any other issues the Secretary deems 
11 
to be appropriate. 
12 
(b) REPORT.—Not later than June 30, 2010, the 
13 
Secretary shall submit to Congress a report on the find14 
ings and conclusions of the study conducted under sub15 
section (a). 
16 
PART III—MEDICAID FUNDING 
17 
SEC. 4321. MEDICAID PROVIDER HIT ADOPTION AND OPER18 
ATION PAYMENTS; IMPLEMENTATION FUND19 
ING. 
20 
(a) IN GENERAL.—Section 1903 of the Social Secu21 
rity Act (42 U.S.C. 1396b) is amended— 
22 


(1) in subsection (a)(3)— 

23 


(A) by striking ‘‘and’’ at the end of sub


24 


paragraph (D); 

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155 

1 


(B) by striking ‘‘plus’’ at the end of sub


2 


paragraph (E) and inserting ‘‘and’’; and 

3 


(C) by adding at the end the following new 

4 


subparagraph: 

5 


‘‘(F)(i) 100 percent of so much of the 
6 
sums expended during such quarter as are at7 
tributable to payments for certified EHR tech8 
nology (and support services including mainte9 
nance and training that is for, or is necessary 
10 
for the adoption and operation of, such tech11 
nology) by Medicaid providers described in sub12 
section (t)(1); and 
13 
‘‘(ii) 90 percent of so much of the sums ex14 
pended during such quarter as are attributable 
15 
to payments for reasonable administrative ex16 
penses related to the administration of pay17 
ments described in clause (i) if the State meets 
18 
the condition described in subsection (t)(9); 
19 
plus’’; and 
20 
(2) by inserting after subsection (s) the fol21 


lowing new subsection: 

22 


‘‘(t)(1) For purposes of subsection (a)(3)(F), the pay23 
ments for certified EHR technology (and support services 
24 
including maintenance that is for, or is necessary for the 
25 
operation of, such technology) by Medicaid providers de


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156 
1 
scribed in this paragraph are payments made by the State 
2 
in accordance with this subsection of 85 percent of the 
3 
net allowable costs of Medicaid providers (as defined in 
4 
paragraph (2)) for such technology (and support services). 
5 


‘‘(2) In this subsection and subsection (a)(3)(F), the 
6 
term ‘Medicaid provider’ means— 
7 
‘‘(A) an eligible professional (as defined in 
8 
paragraph (3)(B)) who is not hospital-based and has 
9 
at least 30 percent of the professional’s patient vol10 
ume (as estimated in accordance with standards es11 
tablished by the Secretary) attributable to individ12 
uals who are receiving medical assistance under this 
13 
title; and 
14 
‘‘(B)(i) a children’s hospital, (ii) an acute-care 
15 
hospital that is not described in clause (i) and that 
16 
has at least 10 percent of the hospital’s patient vol17 
ume (as estimated in accordance with standards es18 
tablished by the Secretary) attributable to individ19 
uals who are receiving medical assistance under this 
20 
title, or (iii) a Federally-qualified health center or 
21 


rural health clinic that has at least 30 percent of the 

22 


center’s or clinic’s patient volume (as estimated in 

23 


accordance with standards established by the Sec


24 


retary) attributable to individuals who are receiving 

25 


medical assistance under this title. 

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157 
1 
A professional shall not qualify as a Medicaid provider 
2 
under this subsection unless the professional has waived, 
3 
in a manner specified by the Secretary, any right to pay4 
ment under section 1848(o) with respect to the adoption 
5 
or support of certified EHR technology by the profes6 
sional. In applying clauses (ii) and (iii) of subparagraph 
7 
(B), the standards established by the Secretary for patient 
8 
volume shall include individuals enrolled in a Medicaid 
9 
managed care plan (under section 1903(m) or section 
10 
1932). 
11 
‘‘(3) In this subsection and subsection (a)(3)(F): 
12 
‘‘(A) The term ‘certified EHR technology’ 
13 
means a qualified electronic health record (as de14 
fined in 3000(13) of the Public Health Service Act) 
15 
that is certified pursuant to section 3001(c)(5) of 
16 
such Act as meeting standards adopted under sec17 
tion 3004 of such Act that are applicable to the type 
18 
of record involved (as determined by the Secretary, 
19 
such as an ambulatory electronic health record for 
20 
office-based physicians or an inpatient hospital elec21 


tronic health record for hospitals). 

22 


‘‘(B) The term ‘eligible professional’ means a 

23 


physician as defined in paragraphs (1) and (2) of 

24 


section 1861(r), and includes a nurse mid-wife and 

25 


a nurse practitioner. 

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158 

1 


‘‘(C) The term ‘hospital-based’ means, with re


2 


spect to an eligible professional, a professional (such 

3 


as a pathologist, anesthesiologist, or emergency phy


4 


sician) who furnishes substantially all of the individ


5 


ual’s professional services in a hospital setting 
6 
(whether inpatient or outpatient) and through the 
7 
use of the facilities and equipment, including com8 
puter equipment, of the hospital. 
9 
‘‘(4)(A) The term ‘allowable costs’ means, with re10 
spect to certified EHR technology of a Medicaid provider, 
11 
costs of such technology (and support services including 
12 
maintenance and training that is for, or is necessary for 
13 
the adoption and operation of, such technology) as deter14 
mined by the Secretary to be reasonable. 
15 
‘‘(B) The term ‘net allowable costs’ means allowable 
16 
costs reduced by any payment that is made to the provider 
17 
involved from any other source that is directly attributable 
18 
to payment for certified EHR technology or services de19 
scribed in subparagraph (A). 
20 
‘‘(C) In no case shall— 
21 


‘‘(i) the aggregate allowable costs under this 

22 


subsection (covering one or more years) with respect 

23 


to a Medicaid provider described in paragraph 

24 


(2)(A) for purchase and initial implementation of 

25 


certified EHR technology (and services described in 

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159 

1 


subparagraph (A)) exceed $25,000 or include costs 

2 


over a period of longer than 5 years; 

3 


‘‘(ii) for costs not described in clause (i) relat


4 


ing to the operation, maintenance, or use of certified 

5 


EHR technology, the annual allowable costs under 
6 
this subsection with respect to such a Medicaid pro7 
vider for costs not described in clause (i) for any 
8 
year exceed $10,000; 
9 
‘‘(iii) payment described in paragraph (1) for 
10 
costs described in clause (ii) be made with respect 
11 
to such a Medicaid provider over a period of more 
12 
than 5 years; 
13 
‘‘(iv) the aggregate allowable costs under this 
14 
subsection with respect to such a Medicaid provider 
15 
for all costs exceed $75,000; or 
16 
‘‘(v) the allowable costs, whether for purchase 
17 
and initial implementation, maintenance, or other18 
wise, for a Medicaid provider described in paragraph 
19 
(2)(B) exceed such aggregate or annual limitation as 
20 
the Secretary shall establish, based on an amount 
21 


determined by the Secretary as being adequate to 

22 


adopt and maintain certified EHR technology, con


23 


sistent with paragraph (6). 

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160 

1 


‘‘(5) Payments described in paragraph (1) are not in 
2 
accordance with this subsection unless the following re3 
quirements are met: 
4 


‘‘(A) The State provides assurances satisfactory 

5 


to the Secretary that amounts received under sub6 
section (a)(3)(F) with respect to costs of a Medicaid 
7 
provider are paid directly to such provider without 
8 
any deduction or rebate. 
9 
‘‘(B) Such Medicaid provider is responsible for 
10 
payment of the costs described in such paragraph 
11 
that are not provided under this title. 
12 
‘‘(C) With respect to payments to such Med13 
icaid provider for costs other than costs related to 
14 
the initial adoption of certified EHR technology, the 
15 
Medicaid provider demonstrates meaningful use of 
16 
certified EHR technology through a means that is 
17 
approved by the State and acceptable to the Sec18 
retary, and that may be based upon the methodolo19 
gies applied under section 1848(o) or 1886(n). 
20 
‘‘(D) To the extent specified by the Secretary, 
21 


the certified EHR technology is compatible with 

22 


State or Federal administrative management sys23 
tems. 

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1 


‘‘(6)(A) In no case shall the payments described in 
2 
paragraph (1), with respect to a hospital, exceed in the 
3 
aggregate the product of— 
4 


‘‘(i) the overall hospital HIT amount for the 

5 


hospital computed under subparagraph (B); and 
6 
‘‘(ii) the Medicaid share for such hospital com7 
puted under subparagraph (C). 
8 
‘‘(B) For purposes of this paragraph, the overall hos9 
pital HIT amount, with respect to a hospital, is the sum 
10 
of the applicable amounts specified in section 
11 
1886(n)(2)(A) for such hospital for the first 4 payment 
12 
years (as estimated by the Secretary) determined as if the 
13 
Medicare share specified in clause (ii) of such section were 

14 
1. The Secretary shall publish in the Federal Register the 
15 
overall hospital HIT amount for each hospital eligible for 
16 
payments under this subsection. In computing amounts 
17 
under clause (ii) for payment years after the first payment 
18 
year, the Secretary shall assume that in subsequent pay19 
ment years discharges increase at an annual rate of 2 per20 
cent per year. 
21 


‘‘(C) The Medicaid share computed under this sub22 
paragraph, for a hospital for a period specified by the Sec23 
retary, shall be calculated in the same manner as the 
24 
Medicare share under section 1886(n)(2)(D) for such a 
25 
hospital and period, except that there shall be substituted 

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162 
1 
for the numerator under clause (i) of such section the 
2 
amount that is equal to the number of inpatient-bed-days 
3 
(as established by the Secretary) which are attributable 
4 
to individuals who are receiving medical assistance under 
5 
this title and who are not described in section 
6 
1886(n)(2)(D)(i). In computing inpatient-bed-days under 
7 
the previous sentence, the Secretary shall take into ac8 
count inpatient-bed-days attributable to inpatient-bed9 
days that are paid for individuals enrolled in a Medicaid 
10 
managed care plan (under section 1903(m) or section 
11 
1932). 
12 
‘‘(7) With respect to health care providers other than 
13 
hospitals, the Secretary shall ensure coordination of the 
14 
different programs for payment of such health care pro15 
viders for adoption or use of health information technology 
16 
(including certified EHR technology), as well as payments 
17 
for such health care providers provided under this title or 
18 
title XVIII, to assure no duplication of funding. 
19 
‘‘(8) In carrying out paragraph (5)(C), the State and 
20 
Secretary shall seek, to the maximum extent practicable, 
21 
to avoid duplicative requirements from Federal and State 
22 
Governments to demonstrate meaningful use of certified 
23 
EHR technology under this title and title XVIII. In doing 
24 
so, the Secretary may deem satisfaction of requirements 
25 
for such meaningful use for a payment year under title 

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163 
1 
XVIII to be sufficient to qualify as meaningful use under 
2 
this subsection. The Secretary may also specify the report3 
ing periods under this subsection in order to carry out this 
4 
paragraph. 
5 


‘‘(9) In order to be provided Federal financial partici6 
pation under subsection (a)(3)(F)(ii), a State must dem7 
onstrate to the satisfaction of the Secretary, that the 
8 
State— 
9 
‘‘(A) is using the funds provided for the pur10 
poses of administering payments under this sub11 
section, including tracking of meaningful use by 
12 
Medicaid providers; 
13 
‘‘(B) conducting adequate oversight of the pro14 
gram under this subsection, including routine track15 
ing of meaningful use attestations and reporting 
16 
mechanisms; and 
17 
‘‘(C) be pursuing initiatives to encourage the 
18 
adoption of certified EHR technology to promote 
19 
health care quality and the exchange of health care 
20 
information under this title, subject to applicable 
21 


laws and regulations governing such exchange. 

22 


‘‘(10) The Secretary shall periodically submit reports 
23 
to the Committee on Energy and Commerce of the House 
24 
of Representatives and the Committee on Finance of the 

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164 
1 
Senate on status, progress, and oversight of payments 
2 
under paragraph (1).’’. 
3 


(b) IMPLEMENTATION FUNDING.—In addition to 
4 
funds otherwise available, out of any funds in the Treas5 
ury not otherwise appropriated, there are appropriated to 
6 
the Secretary of Health and Human Services for the Cen7 
ter for Medicare & Medicaid Services Program Manage8 
ment Account, $40,000,000 for each of fiscal years 2009 
9 
through 2015 and $20,000,000 for each succeeding fiscal 
10 
year through fiscal year 2019, which shall be available for 
11 
purposes of carrying out the provisions of (and the amend12 
ments made by) this part. Amounts appropriated under 
13 
this subsection for a fiscal year shall be available until ex14 
pended. 
15 
Subtitle D—Privacy 
16 
SEC. 4400. DEFINITIONS. 
17 
In this subtitle, except as specified otherwise: 
18 
(1) BREACH.—The term ‘‘breach’’ means the 
19 
unauthorized acquisition, access, use, or disclosure 
20 
of protected health information which compromises 
21 


the security, privacy, or integrity of protected health 

22 


information maintained by or on behalf of a person. 

23 


Such term does not include any unintentional acqui


24 


sition, access, use, or disclosure of such information 

25 


by an employee or agent of the covered entity or 

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165 

1 


business associate involved if such acquisition, ac


2 


cess, use, or disclosure, respectively, was made in 

3 


good faith and within the course and scope of the 

4 


employment or other contractual relationship of such 

5 


employee or agent, respectively, with the covered en6 
tity or business associate and if such information is 
7 
not further acquired, accessed, used, or disclosed by 
8 
such employee or agent. 
9 
(2) BUSINESS ASSOCIATE.—The term ‘‘business 
10 
associate’’ has the meaning given such term in sec11 
tion 160.103 of title 45, Code of Federal Regula12 
tions. 
13 
(3) COVERED ENTITY.—The term ‘‘covered en14 
tity’’ has the meaning given such term in section 
15 
160.103 of title 45, Code of Federal Regulations. 
16 
(4) DISCLOSE.—The terms ‘‘disclose’’ and ‘‘dis17 
closure’’ have the meaning given the term ‘‘disclo18 
sure’’ in section 160.103 of title 45, Code of Federal 
19 
Regulations. 
20 
(5) ELECTRONIC HEALTH RECORD.—The term 
21 


‘‘electronic health record’’ means an electronic 

22 


record of health-related information on an individual 

23 


that is created, gathered, managed, and consulted by 

24 


authorized health care clinicians and staff. 

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1 


(6) HEALTH CARE OPERATIONS.—The term 

2 


‘‘health care operation’’ has the meaning given such 

3 


term in section 164.501 of title 45, Code of Federal 

4 


Regulations. 
5 
(7) HEALTH CARE PROVIDER.—The term 
6 
‘‘health care provider’’ has the meaning given such 
7 
term in section 160.103 of title 45, Code of Federal 
8 
Regulations. 
9 
(8) HEALTH PLAN.—The term ‘‘health plan’’ 
10 
has the meaning given such term in section 1171(5) 
11 
of the Social Security Act. 
12 
(9) NATIONAL COORDINATOR.—The term ‘‘Na13 
tional Coordinator’’ means the head of the Office of 
14 
the National Coordinator for Health Information 
15 
Technology established under section 3001(a) of the 
16 
Public Health Service Act, as added by section 
17 
4101. 
18 
(10) PAYMENT.—The term ‘‘payment’’ has the 
19 
meaning given such term in section 164.501 of title 
20 
45, Code of Federal Regulations. 
21 
(11) PERSONAL HEALTH RECORD.—The term 
22 


‘‘personal health record’’ means an electronic record 

23 


of individually identifiable health information on an 

24 


individual that can be drawn from multiple sources 

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167 

1 


and that is managed, shared, and controlled by or 

2 


for the individual. 

3 


(12) PROTECTED HEALTH INFORMATION.—The 

4 


term ‘‘protected health information’’ has the mean


5 


ing given such term in section 160.103 of title 45, 
6 
Code of Federal Regulations. 
7 
(13) SECRETARY.—The term ‘‘Secretary’’ 
8 
means the Secretary of Health and Human Services. 
9 
(14) SECURITY.—The term ‘‘security’’ has the 
10 
meaning given such term in section 164.304 of title 
11 
45, Code of Federal Regulations. 
12 
(15) STATE.—The term ‘‘State’’ means each of 
13 
the several States, the District of Columbia, Puerto 
14 
Rico, the Virgin Islands, Guam, American Samoa, 
15 
and the Northern Mariana Islands. 
16 
(16) TREATMENT.—The term ‘‘treatment’’ has 
17 
the meaning given such term in section 164.501 of 
18 
title 45, Code of Federal Regulations. 
19 
(17) USE.—The term ‘‘use’’ has the meaning 
20 
given such term in section 160.103 of title 45, Code 
21 


of Federal Regulations. 
22 
(18) VENDOR OF PERSONAL HEALTH 
23 


RECORDS.—The term ‘‘vendor of personal health 

24 


records’’ means an entity, other than a covered enti


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168 

1 


ty (as defined in paragraph (3)), that offers or 

2 


maintains a personal health record. 

3 


PART I—IMPROVED PRIVACY PROVISIONS AND 

4 


SECURITY PROVISIONS 
5 
SEC. 4401. APPLICATION OF SECURITY PROVISIONS AND 
6 
PENALTIES TO BUSINESS ASSOCIATES OF 
7 
COVERED ENTITIES; ANNUAL GUIDANCE ON 
8 
SECURITY PROVISIONS. 
9 
(a) APPLICATION OF SECURITY PROVISIONS.—Sec10 
tions 164.308, 164.310, 164.312, and 164.316 of title 45, 
11 
Code of Federal Regulations, shall apply to a business as12 
sociate of a covered entity in the same manner that such 
13 
sections apply to the covered entity. The additional re14 
quirements of this title that relate to security and that 
15 
are made applicable with respect to covered entities shall 
16 
also be applicable to such a business associate and shall 
17 
be incorporated into the business associate agreement be18 
tween the business associate and the covered entity. 
19 
(b) APPLICATION OF CIVIL AND CRIMINAL PEN20 
ALTIES.—In the case of a business associate that violates 
21 
any security provision specified in subsection (a), sections 
22 
1176 and 1177 of the Social Security Act (42 U.S.C. 
23 
1320d-5, 1320d-6) shall apply to the business associate 
24 
with respect to such violation in the same manner such 

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1 
sections apply to a covered entity that violates such secu2 
rity provision. 
3 


(c) ANNUAL GUIDANCE.—For the first year begin4 
ning after the date of the enactment of this Act and annu5 
ally thereafter, the Secretary of Health and Human Serv6 
ices shall, in consultation with industry stakeholders, an7 
nually issue guidance on the most effective and appro8 
priate technical safeguards for use in carrying out the sec9 
tions referred to in subsection (a) and the security stand10 
ards in subpart C of part 164 of title 45, Code of Federal 
11 
Regulations, as such provisions are in effect as of the date 
12 
before the enactment of this Act. 
13 
SEC. 4402. NOTIFICATION IN THE CASE OF BREACH. 
14 
(a) IN GENERAL.—A covered entity that accesses, 
15 
maintains, retains, modifies, records, stores, destroys, or 
16 
otherwise holds, uses, or discloses unsecured protected 
17 
health information (as defined in subsection (h)(1)) shall, 
18 
in the case of a breach of such information that is discov19 
ered by the covered entity, notify each individual whose 
20 
unsecured protected health information has been, or is 
21 
reasonably believed by the covered entity to have been, 
22 
accessed, acquired, or disclosed as a result of such breach. 
23 


(b) NOTIFICATION OF COVERED ENTITY BY BUSI24 
NESS ASSOCIATE.—A business associate of a covered enti25 
ty that accesses, maintains, retains, modifies, records, 

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1 
stores, destroys, or otherwise holds, uses, or discloses un2 
secured protected health information shall, following the 
3 
discovery of a breach of such information, notify the cov4 
ered entity of such breach. Such notice shall include the 
5 
identification of each individual whose unsecured protected 
6 
health information has been, or is reasonably believed by 
7 
the business associate to have been, accessed, acquired, 
8 
or disclosed during such breach. 
9 
(c) BREACHES TREATED AS DISCOVERED.—For pur10 
poses of this section, a breach shall be treated as discov11 
ered by a covered entity or by a business associate as of 
12 
the first day on which such breach is known to such entity 
13 
or associate, respectively, (including any person, other 
14 
than the individual committing the breach, that is an em15 
ployee, officer, or other agent of such entity or associate, 
16 
respectively) or should reasonably have been known to 
17 
such entity or associate (or person) to have occurred. 
18 
(d) TIMELINESS OF NOTIFICATION.— 
19 
(1) IN GENERAL.—Subject to subsection (g), all 
20 
notifications required under this section shall be 
21 


made without unreasonable delay and in no case 

22 


later than 60 calendar days after the discovery of a 

23 


breach by the covered entity involved (or business 

24 


associate involved in the case of a notification re


25 


quired under subsection (b)). 

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1 


(2) BURDEN OF PROOF.—The covered entity in


2 


volved (or business associate involved in the case of 

3 


a notification required under subsection (b)), shall 

4 


have the burden of demonstrating that all notifica


5 


tions were made as required under this part, includ6 
ing evidence demonstrating the necessity of any 
7 
delay. 
8 
(e) METHODS OF NOTICE.— 
9 
(1) INDIVIDUAL NOTICE.—Notice required 
10 
under this section to be provided to an individual, 
11 
with respect to a breach, shall be provided promptly 
12 
and in the following form: 
13 
(A) Written notification by first-class mail 
14 
to the individual (or the next of kin of the indi15 
vidual if the individual is deceased) at the last 
16 
known address of the individual or the next of 
17 
kin, respectively, or, if specified as a preference 
18 
by the individual, by electronic mail. The notifi19 
cation may be provided in one or more mailings 
20 
as information is available. 
21 


(B) In the case in which there is insuffi


22 


cient, or out-of-date contact information (in


23 


cluding a phone number, email address, or any 

24 


other form of appropriate communication) that 

25 


precludes direct written (or, if specified by the 

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1 


individual under subparagraph (A), electronic) 

2 


notification to the individual, a substitute form 

3 


of notice shall be provided, including, in the 

4 


case that there are 10 or more individuals for 

5 


which there is insufficient or out-of-date contact 
6 
information, a conspicuous posting for a period 
7 
determined by the Secretary on the home page 
8 
of the Web site of the covered entity involved or 
9 
notice in major print or broadcast media, in10 
cluding major media in geographic areas where 
11 
the individuals affected by the breach likely re12 
side. Such a notice in media or web posting will 
13 
include a toll-free phone number where an indi14 
vidual can learn whether or not the individual’s 
15 
unsecured protected health information is pos16 
sibly included in the breach. 
17 
(C) In any case deemed by the covered en18 
tity involved to require urgency because of pos19 
sible imminent misuse of unsecured protected 
20 
health information, the covered entity, in addi21 


tion to notice provided under subparagraph (A), 

22 


may provide information to individuals by tele


23 


phone or other means, as appropriate. 

24 


(2) MEDIA NOTICE.—Notice shall be provided 

25 


to prominent media outlets serving a State or juris-

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1 


diction, following the discovery of a breach described 

2 


in subsection (a), if the unsecured protected health 

3 


information of more than 500 residents of such 

4 


State or jurisdiction is, or is reasonably believed to 

5 


have been, accessed, acquired, or disclosed during 
6 
such breach. 
7 
(3) NOTICE TO SECRETARY.—Notice shall be 
8 
provided to the Secretary by covered entities of un9 
secured protected health information that has been 
10 
acquired or disclosed in a breach. If the breach was 
11 
with respect to 500 or more individuals than such 
12 
notice must be provided immediately. If the breach 
13 
was with respect to less than 500 individuals, the 
14 
covered entity involved may maintain a log of any 
15 
such breach occurring and annually submit such a 
16 
log to the Secretary documenting such breaches 
17 
occuring during the year involved. 
18 
(4) POSTING ON HHS PUBLIC WEBSITE.—The 
19 
Secretary shall make available to the public on the 
20 
Internet website of the Department of Health and 
21 


Human Services a list that identifies each covered 

22 


entity involved in a breach described in subsection 

23 


(a) in which the unsecured protected health informa


24 


tion of more than 500 individuals is acquired or dis25 
closed. 

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1 


(f) CONTENT OF NOTIFICATION.—Regardless of the 
2 
method by which notice is provided to individuals under 
3 
this section, notice of a breach shall include, to the extent 
4 
possible, the following: 
5 


(1) A brief description of what happened, in6 
cluding the date of the breach and the date of the 
7 
discovery of the breach, if known. 
8 
(2) A description of the types of unsecured pro9 
tected health information that were involved in the 
10 
breach (such as full name, Social Security number, 
11 
date of birth, home address, account number, or dis12 
ability code). 
13 
(3) The steps individuals should take to protect 
14 
themselves from potential harm resulting from the 
15 
breach. 
16 
(4) A brief description of what the covered enti17 
ty involved is doing to investigate the breach, to 
18 
mitigate losses, and to protect against any further 
19 
breaches. 
20 
(5) Contact procedures for individuals to ask 
21 


questions or learn additional information, which 

22 


shall include a toll-free telephone number, an e-mail 

23 


address, Web site, or postal address. 

24 


(g) DELAY OF NOTIFICATION AUTHORIZED FOR LAW 
25 
ENFORCEMENT PURPOSES.—If a law enforcement official 

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1 
determines that a notification, notice, or posting required 
2 
under this section would impede a criminal investigation 
3 
or cause damage to national security, such notification, 
4 
notice, or posting shall be delayed in the same manner 
5 
as provided under section 164.528(a)(2) of title 45, Code 
6 
of Federal Regulations, in the case of a disclosure covered 
7 
under such section. 
8 
(h) UNSECURED PROTECTED HEALTH INFORMA9 
TION.— 
10 
(1) DEFINITION.— 
11 
(A) IN GENERAL.—Subject to subpara12 
graph (B), for purposes of this section, the 
13 
term ‘‘unsecured protected health information’’ 
14 
means protected health information that is not 
15 
secured through the use of a technology or 
16 
methodology specified by the Secretary in the 
17 
guidance issued under paragraph (2). 
18 
(B) EXCEPTION IN CASE TIMELY GUID19 
ANCE NOT ISSUED.—In the case that the Sec20 
retary does not issue guidance under paragraph 
21 


(2) by the date specified in such paragraph, for 

22 


purposes of this section, the term ‘‘unsecured 

23 


protected health information’’ shall mean pro


24 


tected health information that is not secured by 

25 


a technology standard that renders protected 

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1 


health information unusable, unreadable, or in


2 


decipherable to unauthorized individuals and is 

3 


developed or endorsed by a standards devel


4 


oping organization that is accredited by the 

5 


American National Standards Institute. 
6 
(2) GUIDANCE.—For purposes of paragraph (1) 
7 
and section 407(f)(3), not later than the date that 
8 
is 60 days after the date of the enactment of this 
9 
Act, the Secretary shall, after consultation with 
10 
stakeholders, issue (and annually update) guidance 
11 
specifying the technologies and methodologies that 
12 
render protected health information unusable, 
13 
unreadable, or indecipherable to unauthorized indi14 
viduals. 
15 
(i) REPORT TO CONGRESS ON BREACHES.— 
16 
(1) IN GENERAL.—Not later than 12 months 
17 
after the date of the enactment of this Act and an18 
nually thereafter, the Secretary shall prepare and 
19 
submit to the Committee on Finance and the Com20 
mittee on Health, Education, Labor, and Pensions 
21 


of the Senate and the Committee on Ways and 

22 


Means and the Committee on Energy and Commerce 

23 


of the House of Representatives a report containing 

24 


the information described in paragraph (2) regard-

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1 


ing breaches for which notice was provided to the 

2 


Secretary under subsection (e)(3). 

3 


(2) INFORMATION.—The information described 

4 


in this paragraph regarding breaches specified in 

5 


paragraph (1) shall include— 
6 
(A) the number and nature of such 
7 
breaches; and 
8 
(B) actions taken in response to such 
9 
breaches. 
10 
(j) REGULATIONS; EFFECTIVE DATE.—To carry out 
11 
this section, the Secretary of Health and Human Services 
12 
shall promulgate interim final regulations by not later 
13 
than the date that is 180 days after the date of the enact14 
ment of this title. The provisions of this section shall apply 
15 
to breaches that are discovered on or after the date that 
16 
is 30 days after the date of publication of such interim 
17 
final regulations. 
18 
SEC. 4403. EDUCATION ON HEALTH INFORMATION PRI19 
VACY. 
20 
(a) REGIONAL OFFICE PRIVACY ADVISORS.—Not 
21 
later than 6 months after the date of the enactment of 
22 
this Act, the Secretary shall designate an individual in 
23 
each regional office of the Department of Health and 
24 
Human Services to offer guidance and education to cov25 
ered entities, business associates, and individuals on their 

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1 
rights and responsibilities related to Federal privacy and 
2 
security requirements for protected health information. 
3 


(b) EDUCATION INITIATIVE ON USES OF HEALTH IN4 
FORMATION.—Not later than 12 months after the date of 
5 
the enactment of this Act, the Office for Civil Rights with6 
in the Department of Health and Human Services shall 
7 
develop and maintain a multi-faceted national education 
8 
initiative to enhance public transparency regarding the 
9 
uses of protected health information, including programs 
10 
to educate individuals about the potential uses of their 
11 
protected health information, the effects of such uses, and 
12 
the rights of individuals with respect to such uses. Such 
13 
programs shall be conducted in a variety of languages and 
14 
present information in a clear and understandable man15 
ner. 
16 
SEC. 4404. APPLICATION OF PRIVACY PROVISIONS AND 
17 
PENALTIES TO BUSINESS ASSOCIATES OF 
18 
COVERED ENTITIES. 
19 
(a) APPLICATION OF CONTRACT REQUIREMENTS.— 
20 
In the case of a business associate of a covered entity that 
21 
obtains or creates protected health information pursuant 
22 
to a written contract (or other written arrangement) de23 
scribed in section 164.502(e)(2) of title 45, Code of Fed24 
eral Regulations, with such covered entity, the business 
25 
associate may use and disclose such protected health infor


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1 
mation only if such use or disclosure, respectively, is in 
2 
compliance with each applicable requirement of section 
3 
164.504(e) of such title. The additional requirements of 
4 
this subtitle that relate to privacy and that are made ap5 
plicable with respect to covered entities shall also be appli6 
cable to such a business associate and shall be incor7 
porated into the business associate agreement between the 
8 
business associate and the covered entity. 
9 
(b) APPLICATION OF KNOWLEDGE ELEMENTS ASSO10 
CIATED WITH CONTRACTS.—Section 164.504(e)(1)(ii) of 
11 
title 45, Code of Federal Regulations, shall apply to a 
12 
business associate described in subsection (a), with respect 
13 
to compliance with such subsection, in the same manner 
14 
that such section applies to a covered entity, with respect 
15 
to compliance with the standards in sections 164.502(e) 
16 
and 164.504(e) of such title, except that in applying such 
17 
section 164.504(e)(1)(ii) each reference to the business as18 
sociate, with respect to a contract, shall be treated as a 
19 
reference to the covered entity involved in such contract. 
20 
(c) APPLICATION OF CIVIL AND CRIMINAL PEN21 
ALTIES.—In the case of a business associate that violates 
22 
any provision of subsection (a) or (b), the provisions of 
23 
sections 1176 and 1177 of the Social Security Act (42 
24 
U.S.C. 1320d-5, 1320d-6) shall apply to the business as25 
sociate with respect to such violation in the same manner 

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1 
as such provisions apply to a person who violates a provi2 
sion of part C of title XI of such Act. 
3 
SEC. 4405. RESTRICTIONS ON CERTAIN DISCLOSURES AND 
4 


SALES OF HEALTH INFORMATION; ACCOUNT


5 


ING OF CERTAIN PROTECTED HEALTH IN


6 
FORMATION DISCLOSURES; ACCESS TO CER7 
TAIN INFORMATION IN ELECTRONIC FOR8 
MAT. 
9 
(a) REQUESTED RESTRICTIONS ON CERTAIN DIS


10 
CLOSURES OF HEALTH INFORMATION.—In the case that 
11 
an individual requests under paragraph (a)(1)(i)(A) of 
12 
section 164.522 of title 45, Code of Federal Regulations, 
13 
that a covered entity restrict the disclosure of the pro14 
tected health information of the individual, notwith15 
standing paragraph (a)(1)(ii) of such section, the covered 
16 
entity must comply with the requested restriction if— 
17 
(1) except as otherwise required by law, the dis18 
closure is to a health plan for purposes of carrying 
19 
out payment or health care operations (and is not 
20 
for purposes of carrying out treatment); and 
21 


(2) the protected health information pertains 

22 


solely to a health care item or service for which the 

23 


health care provider involved has been paid out of 

24 


pocket in full. 

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1 
(b) DISCLOSURES REQUIRED TO BE LIMITED TO 
2 
THE LIMITED DATA SET OR THE MINIMUM NEC3 
ESSARY.— 
4 
(1) IN GENERAL.— 
5 
(A) IN GENERAL.—Subject to subpara6 
graph (B), a covered entity shall be treated as 
7 
being in compliance with section 164.502(b)(1) 
8 
of title 45, Code of Federal Regulations, with 
9 
respect to the use, disclosure, or request of pro10 
tected health information described in such sec11 
tion, only if the covered entity limits such pro12 
tected health information, to the extent prac13 
ticable, to the limited data set (as defined in 
14 
section 164.514(e)(2) of such title) or, if needed 
15 
by such entity, to the minimum necessary to ac16 
complish the intended purpose of such use, dis17 
closure, or request, respectively. 
18 
(B) GUIDANCE.—Not later than 18 
19 
months after the date of the enactment of this 
20 
section, the Secretary shall issue guidance on 
21 
what constitutes ‘‘minimum necessary’’ for pur22 
poses of subpart E of part 164 of title 45, Code 
23 
of Federal Regulation. In issuing such guidance 
24 
the Secretary shall take into consideration the 
25 
guidance under section 4424(c). 

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1 


(C) SUNSET.—Subparagraph (A) shall not 

2 


apply on and after the effective date on which 

3 


the Secretary issues the guidance under sub


4 


paragraph (B). 
5 
(2) DETERMINATION OF MINIMUM NEC6 
ESSARY.—For purposes of paragraph (1), in the 
7 
case of the disclosure of protected health informa8 
tion, the covered entity or business associate dis9 
closing such information shall determine what con10 
stitutes the minimum necessary to accomplish the 
11 
intended purpose of such disclosure. 
12 
(3) APPLICATION OF EXCEPTIONS.—The excep13 
tions described in section 164.502(b)(2) of title 45, 
14 
Code of Federal Regulations, shall apply to the re15 
quirement under paragraph (1) as of the effective 
16 
date described in section 4423 in the same manner 
17 
that such exceptions apply to section 164.502(b)(1) 
18 
of such title before such date. 
19 
(4) RULE OF CONSTRUCTION.—Nothing in this 
20 
subsection shall be construed as affecting the use, 
21 


disclosure, or request of protected health information 

22 


that has been de-identified. 

23 


(c) ACCOUNTING OF CERTAIN PROTECTED HEALTH 
24 
INFORMATION DISCLOSURES REQUIRED IF COVERED EN25 
TITY USES ELECTRONIC HEALTH RECORD.— 

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1 


(1) IN GENERAL.—In applying section 164.528 

2 


of title 45, Code of Federal Regulations, in the case 

3 


that a covered entity uses or maintains an electronic 

4 


health record with respect to protected health infor


5 


mation— 
6 
(A) the exception under paragraph 
7 
(a)(1)(i) of such section shall not apply to dis8 
closures through an electronic health record 
9 
made by such entity of such information; and 
10 
(B) an individual shall have a right to re11 
ceive an accounting of disclosures described in 
12 
such paragraph of such information made by 
13 
such covered entity during only the three years 
14 
prior to the date on which the accounting is re15 
quested. 
16 
(2) REGULATIONS.—The Secretary shall pro17 
mulgate regulations on what information shall be 
18 
collected about each disclosure referred to in para19 
graph (1)(A) not later than 18 months after the 
20 
date on which the Secretary adopts standards on ac21 


counting for disclosure described in the section 

22 


3002(b)(2)(B)(iv) of the Public Health Service Act, 

23 


as added by section 4101. Such regulations shall 

24 


only require such information to be collected through 

25 


an electronic health record in a manner that takes 

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1 


into account the interests of individuals in learning 

2 


the circumstances under which their protected health 

3 


information is being disclosed and takes into account 

4 


the administrative burden of accounting for such 

5 


disclosures. 
6 
(3) CONSTRUCTION.—Nothing in this sub7 
section shall be construed as requiring a covered en8 
tity to account for disclosures of protected health in9 
formation that are not made by such covered entity 
10 
or by a business associate acting on behalf of the 
11 
covered entity. 
12 
(4) EFFECTIVE DATE.— 
13 
(A) CURRENT USERS OF ELECTRONIC 
14 
RECORDS.—In the case of a covered entity inso15 
far as it acquired an electronic health record as 
16 
of January 1, 2009, paragraph (1) shall apply 
17 
to disclosures, with respect to protected health 
18 
information, made by the covered entity from 
19 
such a record on and after January 1, 2014. 
20 
(B) OTHERS.—In the case of a covered en21 


tity insofar as it acquires an electronic health 

22 


record after January 1, 2009, paragraph (1) 

23 


shall apply to disclosures, with respect to pro


24 


tected health information, made by the covered 

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1 


entity from such record on and after the later 

2 


of the following: 

3 


(i) January 1, 2011; or 

4 


(ii) the date that it acquires an elec


5 


tronic health record. 
6 
(d) REVIEW OF HEALTH CARE OPERATIONS.—Not 
7 
later than 18 months after the date of the enactment of 
8 
this title, the Secretary shall promulgate regulations to 
9 
eliminate from the definition of health care operations 
10 
under section 164.501 of title 45, Code of Federal Regula11 
tions, those activities that can reasonably and efficiently 
12 
be conducted through the use of information that is de13 
identified (in accordance with the requirements of section 
14 
164.514(b) of such title) or that should require a valid 
15 
authorization for use or disclosure. In promulgating such 
16 
regulations, the Secretary may choose to narrow or clarify 
17 
activities that the Secretary chooses to retain in the defini18 
tion of health care operations and the Secretary shall take 
19 
into account the report under section 424(d). In such reg20 
ulations the Secretary shall specify the date on which such 
21 
regulations shall apply to disclosures made by a covered 
22 
entity, but in no case would such date be sooner than the 
23 
date that is 24 months after the date of the enactment 
24 
of this section. 

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1 


(e) PROHIBITION ON SALE OF ELECTRONIC HEALTH 
2 
RECORDS OR PROTECTED HEALTH INFORMATION OB3 
TAINED FROM ELECTRONIC HEALTH RECORDS.— 
4 


(1) IN GENERAL.—Except as provided in para


5 


graph (2), a covered entity or business associate 
6 
shall not directly or indirectly receive remuneration 
7 
in exchange for any protected health information of 
8 
an individual unless the covered entity obtained from 
9 
the individual, in accordance with section 164.508 of 
10 
title 45, Code of Federal Regulations, a valid au11 
thorization that includes, in accordance with such 
12 
section, a specification of whether the protected 
13 
health information can be further exchanged for re14 
muneration by the entity receiving protected health 
15 
information of that individual. 
16 
(2) EXCEPTIONS.—Paragraph (1) shall not 
17 
apply in the following cases: 
18 
(A) The purpose of the exchange is for re19 
search or public health activities (as described 
20 
in sections 164.501, 164.512(i), and 164.512(b) 
21 


of title 45, Code of Federal Regulations) and 

22 


the price charged reflects the costs of prepara


23 


tion and transmittal of the data for such pur24 
pose. 

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187 

1 


(B) The purpose of the exchange is for the 

2 


treatment of the individual and the price 

3 


charges reflects not more than the costs of 

4 


preparation and transmittal of the data for 

5 


such purpose. 
6 
(C) The purpose of the exchange is the 
7 
health care operation specifically described in 
8 
subparagraph (iv) of paragraph (6) of the defi9 
nition of health care operations in section 
10 
164.501 of title 45, Code of Federal Regula11 
tions. 
12 
(D) The purpose of the exchange is for re13 
muneration that is provided by a covered entity 
14 
to a business associate for activities involving 
15 
the exchange of protected health information 
16 
that the business associate undertakes on behalf 
17 
of and at the specific request of the covered en18 
tity pursuant to a business associate agreement. 
19 
(E) The purpose of the exchange is to pro20 
vide an individual with a copy of the individ21 


ual’s protected health information pursuant to 

22 


section 164.524 of title 45, Code of Federal 

23 


Regulations. 

24 


(F) The purpose of the exchange is other


25 


wise determined by the Secretary in regulations 

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188 

1 


to be similarly necessary and appropriate as the 

2 


exceptions provided in subparagraphs (A) 

3 


through (E). 

4 


(3) REGULATIONS.—The Secretary shall pro


5 


mulgate regulations to carry out paragraph (this 
6 
subsection, including exceptions described in para7 
graph (2), not later than 18 months after the date 
8 
of the enactment of this title. 
9 
(4) EFFECTIVE DATE.—Paragraph (1) shall 
10 
apply to exchanges occurring on or after the date 
11 
that is 6 months after the date of the promulgation 
12 
of final regulations implementing this subsection. 
13 
(f) ACCESS TO CERTAIN INFORMATION IN ELEC14 
TRONIC FORMAT.—In applying section 164.524 of title 
15 
45, Code of Federal Regulations, in the case that a cov16 
ered entity uses or maintains an electronic health record 
17 
with respect to protected health information of an indi18 
vidual— 
19 
(1) the individual shall have a right to obtain 
20 
from such covered entity a copy of such information 
21 


in an electronic format; and 

22 


(2) notwithstanding paragraph (c)(4) of such 

23 


section, any fee that the covered entity may impose 

24 


for providing such individual with a copy of such in


25 


formation (or a summary or explanation of such in-

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189 

1 


formation) if such copy (or summary or explanation) 

2 


is in an electronic form shall not be greater than the 

3 


entity’s labor costs in responding to the request for 

4 


the copy (or summary or explanation). 

5 
SEC. 4406. CONDITIONS ON CERTAIN CONTACTS AS PART 

6 
OF HEALTH CARE OPERATIONS. 

7 
(a) MARKETING.— 

8 
(1) IN GENERAL.—A communication by a cov


9 
ered entity or business associate that is about a 
10 
product or service and that encourages recipients of 
11 
the communication to purchase or use the product 
12 
or service shall not be considered a health care oper13 
ation for purposes of subpart E of part 164 of title 
14 
45, Code of Federal Regulations, unless the commu15 
nication is made as described in subparagraph (i), 
16 
(ii), or (iii) of paragraph (1) of the definition of 
17 
marketing in section 164.501 of such title. 
18 
(2) PAYMENT FOR CERTAIN COMMUNICA19 
TIONS.—A covered entity or business associate may 
20 
not receive direct or indirect payment in exchange 
21 


for making any communication described in sub


22 


paragraph (i), (ii), or (iii) of paragraph (1) of the 

23 


definition of marketing in section 164.501 of title 

24 


45, Code of Federal Regulations, except— 

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190 

1 


(A) a business associate of a covered entity 

2 


may receive payment from the covered entity 

3 


for making any such communication on behalf 

4 


of the covered entity that is consistent with the 

5 


written contract (or other written arrangement) 
6 
described in section 164.502(e)(2) of such title 
7 
between such business associate and covered en8 
tity; and 
9 
(B) a covered entity may receive payment 
10 
in exchange for making any such communica11 
tion if the entity obtains from the recipient of 
12 
the communication, in accordance with section 
13 
164.508 of title 45, Code of Federal Regula14 
tions, a valid authorization (as described in 
15 
paragraph (b) of such section) with respect to 
16 
such communication. 
17 
(b) FUNDRAISING.—Fundraising for the benefit of a 
18 
covered entity shall not be considered a health care oper19 
ation for purposes of section 164.501 of title 45, Code of 
20 
Federal Regulations. 
21 


(c) EFFECTIVE DATE.—This section shall apply to 
22 
contracting occurring on or after the effective date speci23 
fied under section 4423. 

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191 

1 
SEC. 4407. TEMPORARY BREACH NOTIFICATION REQUIRE2 


MENT FOR VENDORS OF PERSONAL HEALTH 

3 


RECORDS AND OTHER NON-HIPAA COVERED 

4 


ENTITIES. 

5 


(a) IN GENERAL.—In accordance with subsection (c), 
6 
each vendor of personal health records, following the dis7 
covery of a breach of security of unsecured PHR identifi8 
able health information that is in a personal health record 
9 
maintained or offered by such vendor, and each entity de10 
scribed in clause (ii) or (iii) of section 4424(b)(1)(A), fol11 
lowing the discovery of a breach of security of such infor12 
mation that is obtained through a product or service pro13 
vided by such entity, shall— 
14 
(1) notify each individual who is a citizen or 
15 
resident of the United States whose unsecured PHR 
16 
identifiable health information was acquired by an 
17 
unauthorized person as a result of such a breach of 
18 
security; and 
19 
(2) notify the Federal Trade Commission. 
20 
(b) NOTIFICATION BY THIRD PARTY SERVICE PRO21 
VIDERS.—A third party service provider that provides 
22 
services to a vendor of personal health records or to an 
23 
entity described in clause (ii) or (iii) of section 
24 
4424(b)(1)(A) in connection with the offering or mainte25 
nance of a personal health record or a related product or 
26 
service and that accesses, maintains, retains, modifies, 

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1 
records, stores, destroys, or otherwise holds, uses, or dis2 
closes unsecured PHR identifiable health information in 
3 
such a record as a result of such services shall, following 
4 
the discovery of a breach of security of such information, 
5 
notify such vendor or entity, respectively, of such breach. 
6 
Such notice shall include the identification of each indi7 
vidual whose unsecured PHR identifiable health informa8 
tion has been, or is reasonably believed to have been, 
9 
accessed, acquired, or disclosed during such breach. 
10 
(c) APPLICATION OF REQUIREMENTS FOR TIMELI11 
NESS, METHOD, AND CONTENT OF NOTIFICATIONS.— 
12 
Subsections (c), (d), (e), and (f) of section 402 shall apply 
13 
to a notification required under subsection (a) and a ven14 
dor of personal health records, an entity described in sub15 
section (a) and a third party service provider described 
16 
in subsection (b), with respect to a breach of security 
17 
under subsection (a) of unsecured PHR identifiable health 
18 
information in such records maintained or offered by such 
19 
vendor, in a manner specified by the Federal Trade Com20 
mission. 
21 
(d) NOTIFICATION OF THE SECRETARY.—Upon re22 
ceipt of a notification of a breach of security under sub23 
section (a)(2), the Federal Trade Commission shall notify 
24 
the Secretary of such breach. 

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1 


(e) ENFORCEMENT.—A violation of subsection (a) or 
2 
(b) shall be treated as an unfair and deceptive act or prac3 
tice in violation of a regulation under section 18(a)(1)(B) 
4 
of the Federal Trade Commission Act (15 U.S.C. 
5 
57a(a)(1)(B)) regarding unfair or deceptive acts or prac6 
tices. 
7 
(f) DEFINITIONS.—For purposes of this section: 
8 
(1) BREACH OF SECURITY.—The term ‘‘breach 
9 
of security’’ means, with respect to unsecured PHR 
10 
identifiable health information of an individual in a 
11 
personal health record, acquisition of such informa12 
tion without the authorization of the individual. 
13 
(2) PHR IDENTIFIABLE HEALTH INFORMA14 
TION.—The term ‘‘PHR identifiable health informa15 
tion’’ means individually identifiable health informa16 
tion, as defined in section 1171(6) of the Social Se17 
curity Act (42 U.S.C. 1320d(6)), and includes, with 
18 
respect to an individual, information— 
19 
(A) that is provided by or on behalf of the 
20 
individual; and 
21 


(B) that identifies the individual or with 

22 


respect to which there is a reasonable basis to 

23 


believe that the information can be used to 

24 


identify the individual. 

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194 

1 


(3) UNSECURED PHR IDENTIFIABLE HEALTH 

2 


INFORMATION.— 

3 


(A) IN GENERAL.—Subject to subpara


4 


graph (B), the term ‘‘unsecured PHR identifi


5 


able health information’’ means PHR identifi6 
able health information that is not protected 
7 
through the use of a technology or methodology 
8 
specified by the Secretary in the guidance 
9 
issued under section 4402(h)(2). 
10 
(B) EXCEPTION IN CASE TIMELY GUID11 
ANCE NOT ISSUED.—In the case that the Sec12 
retary does not issue guidance under section 
13 
4402(h)(2) by the date specified in such sec14 
tion, for purposes of this section, the term ‘‘un15 
secured PHR identifiable health information’’ 
16 
shall mean PHR identifiable health information 
17 
that is not secured by a technology standard 
18 
that renders protected health information unus19 
able, unreadable, or indecipherable to unauthor20 
ized individuals and that is developed or en21 


dorsed by a standards developing organization 

22 


that is accredited by the American National 

23 


Standards Institute. 

24 


(g) REGULATIONS; EFFECTIVE DATE; SUNSET.— 

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1 


(1) REGULATIONS; EFFECTIVE DATE.—To 

2 


carry out this section, the Secretary of Health and 

3 


Human Services shall promulgate interim final regu


4 


lations by not later than the date that is 180 days 

5 


after the date of the enactment of this section. The 
6 
provisions of this section shall apply to breaches of 
7 
security that are discovered on or after the date that 
8 
is 30 days after the date of publication of such in9 
terim final regulations. 
10 
(2) SUNSET.—The provisions of this section 
11 
shall not apply to breaches of security occurring on 
12 
or after the earlier of the following the dates: 
13 
(A) The date on which a standard relating 
14 
to requirements for entities that are not covered 
15 
entities that includes requirements relating to 
16 
breach notification has been promulgated by the 
17 
Secretary. 
18 
(B) The date on which a standard relating 
19 
to requirements for entities that are not covered 
20 
entities that includes requirements relating to 
21 


breach notification has been promulgated by the 

22 


Federal Trade Commission and has taken ef23 
fect. 

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1 
SEC. 4408. BUSINESS ASSOCIATE CONTRACTS REQUIRED 
2 


FOR CERTAIN ENTITIES. 

3 


Each organization, with respect to a covered entity, 
4 
that provides data transmission of protected health infor5 
mation to such entity (or its business associate) and that 
6 
requires access on a routine basis to such protected health 
7 
information, such as a Health Information Exchange Or8 
ganization, Regional Health Information Organization, E9 
prescribing Gateway, or each vendor that contracts with 
10 
a covered entity to allow that covered entity to offer a per11 
sonal health record to patients as part of its electronic 
12 
health record, is required to enter into a written contract 
13 
(or other written arrangement) described in section 
14 
164.502(e)(2) of title 45, Code of Federal Regulations and 
15 
a written contract (or other arrangement) described in 
16 
section 164.308(b) of such title, with such entity and shall 
17 
be treated as a business associate of the covered entity 
18 
for purposes of the provisions of this subtitle and subparts 
19 
C and E of part 164 of title 45, Code of Federal Regula20 
tions, as such provisions are in effect as of the date of 
21 
enactment of this title. 
22 
SEC. 4409. CLARIFICATION OF APPLICATION OF WRONGFUL 
23 


DISCLOSURES CRIMINAL PENALTIES. 

24 


Section 1177(a) of the Social Security Act (42 U.S.C. 
25 
1320d–6(a)) is amended by adding at the end the fol26 
lowing new sentence: ‘‘For purposes of the previous sen


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197 
1 
tence, a person (including an employee or other individual) 
2 
shall be considered to have obtained or disclosed individ3 
ually identifiable health information in violation of this 
4 
part if the information is maintained by a covered entity 
5 
(as defined in the HIPAA privacy regulation described in 
6 
section 1180(b)(3)) and the individual obtained or dis7 
closed such information without authorization.’’. 
8 
SEC. 4410. IMPROVED ENFORCEMENT. 
9 
(a) IN GENERAL.—Section 1176 of the Social Secu10 
rity Act (42 U.S.C. 1320d-5) is amended— 
11 
(1) in subsection (b)(1), by striking ‘‘the act 
12 
constitutes an offense punishable under section 
13 
1177’’ and inserting ‘‘a penalty has been imposed 
14 
under section 1177 with respect to such act’’; and 
15 
(2) by adding at the end the following new sub16 
section: 
17 
‘‘(c) NONCOMPLIANCE DUE TO WILLFUL NE18 
GLECT.— 
19 
‘‘(1) IN GENERAL.—A violation of a provision 
20 
of this part due to willful neglect is a violation for 
21 


which the Secretary is required to impose a penalty 

22 


under subsection (a)(1). 

23 


‘‘(2) REQUIRED INVESTIGATION.—For purposes 

24 


of paragraph (1), the Secretary shall formally inves


25 


tigate any complaint of a violation of a provision of 

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198 

1 


this part if a preliminary investigation of the facts 

2 


of the complaint indicate such a possible violation 

3 


due to willful neglect.’’. 

4 


(b) EFFECTIVE DATE; REGULATIONS.— 

5 


(1) The amendments made by subsection (a) 
6 
shall apply to penalties imposed on or after the date 
7 
that is 24 months after the date of the enactment 
8 
of this title. 
9 
(2) Not later than 18 months after the date of 
10 
the enactment of this title, the Secretary of Health 
11 
and Human Services shall promulgate regulations to 
12 
implement such amendments. 
13 
(c) DISTRIBUTION OF CERTAIN CIVIL MONETARY 
14 
PENALTIES COLLECTED.— 
15 
(1) IN GENERAL.—Subject to the regulation 
16 
promulgated pursuant to paragraph (3), any civil 
17 
monetary penalty or monetary settlement collected 
18 
with respect to an offense punishable under this sub19 
title or section 1176 of the Social Security Act (42 
20 
U.S.C. 1320d-5) insofar as such section relates to 
21 


privacy or security shall be transferred to the Office 

22 


of Civil Rights of the Department of Health and 

23 


Human Services to be used for purposes of enforcing 

24 


the provisions of this subtitle and subparts C and E 

25 


of part 164 of title 45, Code of Federal Regulations, 

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199 

1 


as such provisions are in effect as of the date of en


2 


actment of this Act. 

3 


(2) GAO REPORT.—Not later than 18 months 

4 


after the date of the enactment of this title, the 

5 


Comptroller General shall submit to the Secretary a 
6 
report including recommendations for a methodology 
7 
under which an individual who is harmed by an act 
8 
that constitutes an offense referred to in paragraph 
9 
(1) may receive a percentage of any civil monetary 
10 
penalty or monetary settlement collected with re11 
spect to such offense. 
12 
(3) ESTABLISHMENT OF METHODOLOGY TO 
13 
DISTRIBUTE PERCENTAGE OF CMPS COLLECTED TO 
14 
HARMED INDIVIDUALS.—Not later than 3 years 
15 
after the date of the enactment of this title, the Sec16 
retary shall establish by regulation and based on the 
17 
recommendations submitted under paragraph (2), a 
18 
methodology under which an individual who is 
19 
harmed by an act that constitutes an offense re20 
ferred to in paragraph (1) may receive a percentage 
21 


of any civil monetary penalty or monetary settlement 

22 


collected with respect to such offense. 
23 
(4) APPLICATION OF METHODOLOGY.—The 
24 


methodology under paragraph (3) shall be applied 

25 


with respect to civil monetary penalties or monetary 

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200 

1 


settlements imposed on or after the effective date of 

2 


the regulation. 

3 


(d) TIERED INCREASE IN AMOUNT OF CIVIL MONE4 
TARY PENALTIES.— 
5 


(1) IN GENERAL.—Section 1176(a)(1) of the 
6 
Social Security Act (42 U.S.C. 1320d-5(a)(1)) is 
7 
amended by striking ‘‘who violates a provision of 
8 
this part a penalty of not more than’’ and all that 
9 
follows and inserting the following: ‘‘who violates a 
10 
provision of this part— 
11 
‘‘(A) in the case of a violation of such pro12 
vision in which it is established that the person 
13 
did not know (and by exercising reasonable dili14 
gence would not have known) that such person 
15 
violated such provision, a penalty for each such 
16 
violation of an amount that is at least the 
17 
amount described in paragraph (3)(A) but not 
18 
to exceed the amount described in paragraph 
19 
(3)(D); 
20 
‘‘(B) in the case of a violation of such pro21 


vision in which it is established that the viola


22 


tion was due to reasonable cause and not to 

23 


willful neglect, a penalty for each such violation 

24 


of an amount that is at least the amount de


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201 

1 


scribed in paragraph (3)(B) but not to exceed 

2 


the amount described in paragraph (3)(D); and 

3 


‘‘(C) in the case of a violation of such pro


4 


vision in which it is established that the viola


5 


tion was due to willful neglect— 
6 
‘‘(i) if the violation is corrected as de7 
scribed in subsection (b)(3)(A), a penalty 
8 
in an amount that is at least the amount 
9 
described in paragraph (3)(C) but not to 
10 
exceed the amount described in paragraph 
11 
(3)(D); and 
12 
‘‘(ii) if the violation is not corrected 
13 
as described in such subsection, a penalty 
14 
in an amount that is at least the amount 
15 
described in paragraph (3)(D). 
16 
In determining the amount of a penalty under 
17 
this section for a violation, the Secretary shall 
18 
base such determination on the nature and ex19 
tent of the violation and the nature and extent 
20 
of the harm resulting from such violation.’’. 
21 


(2) TIERS OF PENALTIES DESCRIBED.—Section 

22 


1176(a) of such Act (42 U.S.C. 1320d-5(a)) is fur


23 


ther amended by adding at the end the following 

24 


new paragraph: 

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1 


‘‘(3) TIERS OF PENALTIES DESCRIBED.—For 

2 


purposes of paragraph (1), with respect to a viola


3 


tion by a person of a provision of this part— 

4 


‘‘(A) the amount described in this subpara


5 


graph is $100 for each such violation, except 
6 
that the total amount imposed on the person 
7 
for all such violations of an identical require8 
ment or prohibition during a calendar year may 
9 
not exceed $25,000; 
10 
‘‘(B) the amount described in this subpara11 
graph is $1,000 for each such violation, except 
12 
that the total amount imposed on the person 
13 
for all such violations of an identical require14 
ment or prohibition during a calendar year may 
15 
not exceed $100,000; 
16 
‘‘(C) the amount described in this subpara17 
graph is $10,000 for each such violation, except 
18 
that the total amount imposed on the person 
19 
for all such violations of an identical require20 
ment or prohibition during a calendar year may 
21 


not exceed $250,000; and 

22 


‘‘(D) the amount described in this sub


23 


paragraph is $50,000 for each such violation, 

24 


except that the total amount imposed on the 

25 


person for all such violations of an identical re-

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1 


quirement or prohibition during a calendar year 

2 


may not exceed $1,500,000.’’. 
3 
(3) CONFORMING AMENDMENTS.—Section 
4 


1176(b) of such Act (42 U.S.C. 1320d-5(b)) is 

5 


amended— 
6 
(A) by striking paragraph (2) and redesig7 
nating paragraphs (3) and (4) as paragraphs 
8 
(2) and (3), respectively; and 
9 
(B) in paragraph (2), as so redesignated— 
10 
(i) in subparagraph (A), by striking 
11 
‘‘in subparagraph (B), a penalty may not 
12 
be imposed under subsection (a) if’’ and all 
13 
that follows through ‘‘the failure to comply 
14 
is corrected’’ and inserting ‘‘in subpara15 
graph (B) or subsection (a)(1)(C), a pen16 
alty may not be imposed under subsection 
17 
(a) if the failure to comply is corrected’’; 
18 
and 
19 
(ii) in subparagraph (B), by striking 
20 
‘‘(A)(ii)’’ and inserting ‘‘(A)’’ each place it 
21 
appears. 
22 


(4) EFFECTIVE DATE.—The amendments made 

23 


by this subsection shall apply to violations occurring 

24 


after the date of the enactment of this title. 

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1 


(e) ENFORCEMENT THROUGH STATE ATTORNEYS 
2 
GENERAL.— 
3 


(1) IN GENERAL.—Section 1176 of the Social 

4 


Security Act (42 U.S.C. 1320d–5) is amended by 

5 


adding at the end the following new subsection: 
6 
‘‘(c) ENFORCEMENT BY STATE ATTORNEYS GEN7 
ERAL.— 
8 
‘‘(1) CIVIL ACTION.—Except as provided in 
9 
subsection (b), in any case in which the attorney 
10 
general of a State has reason to believe that an in11 
terest of one or more of the residents of that State 
12 
has been or is threatened or adversely affected by 
13 
any person who violates a provision of this part, the 
14 
attorney general of the State, as parens patriae, may 
15 
bring a civil action on behalf of such residents of the 
16 
State in a district court of the United States of ap17 
propriate jurisdiction— 
18 
‘‘(A) to enjoin further such violation by the 
19 
defendant; or 
20 
‘‘(B) to obtain damages on behalf of such 
21 


residents of the State, in an amount equal to 

22 


the amount determined under paragraph (2). 

23 


‘‘(2) STATUTORY DAMAGES.— 

24 


‘‘(A) IN GENERAL.—For purposes of para


25 


graph (1)(B), the amount determined under 

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205 

1 


this paragraph is the amount calculated by mul


2 


tiplying the number of violations by up to $100. 

3 


For purposes of the preceding sentence, in the 

4 


case of a continuing violation, the number of 

5 


violations shall be determined consistent with 
6 
the HIPAA privacy regulations (as defined in 
7 
section 1180(b)(3)) for violations of subsection 
8 
(a). 
9 
‘‘(B) LIMITATION.—The total amount of 
10 
damages imposed on the person for all viola11 
tions of an identical requirement or prohibition 
12 
during a calendar year may not exceed $25,000. 
13 
‘‘(C) REDUCTION OF DAMAGES.—In as14 
sessing damages under subparagraph (A), the 
15 
court may consider the factors the Secretary 
16 
may consider in determining the amount of a 
17 
civil money penalty under subsection (a) under 
18 
the HIPAA privacy regulations. 
19 
‘‘(3) ATTORNEY FEES.—In the case of any suc20 
cessful action under paragraph (1), the court, in its 
21 


discretion, may award the costs of the action and 

22 


reasonable attorney fees to the State. 

23 


‘‘(4) NOTICE TO SECRETARY.—The State shall 

24 


serve prior written notice of any action under para


25 


graph (1) upon the Secretary and provide the Sec


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206 

1 


retary with a copy of its complaint, except in any 

2 


case in which such prior notice is not feasible, in 

3 


which case the State shall serve such notice imme


4 


diately upon instituting such action. The Secretary 

5 


shall have the right— 
6 
‘‘(A) to intervene in the action; 
7 
‘‘(B) upon so intervening, to be heard on 
8 
all matters arising therein; and 
9 
‘‘(C) to file petitions for appeal. 
10 
‘‘(5) CONSTRUCTION.—For purposes of bring11 
ing any civil action under paragraph (1), nothing in 
12 
this section shall be construed to prevent an attor13 
ney general of a State from exercising the powers 
14 
conferred on the attorney general by the laws of that 
15 
State. 
16 
‘‘(6) VENUE; SERVICE OF PROCESS.— 
17 
‘‘(A) VENUE.—Any action brought under 
18 
paragraph (1) may be brought in the district 
19 
court of the United States that meets applicable 
20 
requirements relating to venue under section 
21 


1391 of title 28, United States Code. 

22 


‘‘(B) SERVICE OF PROCESS.—In an action 

23 


brought under paragraph (1), process may be 

24 


served in any district in which the defendant— 

25 


‘‘(i) is an inhabitant; or 

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207 

1 


‘‘(ii) maintains a physical place of 

2 


business. 
3 
‘‘(7) LIMITATION ON STATE ACTION WHILE 
4 


FEDERAL ACTION IS PENDING.—If the Secretary has 

5 


instituted an action against a person under sub6 
section (a) with respect to a specific violation of this 
7 
part, no State attorney general may bring an action 
8 
under this subsection against the person with re9 
spect to such violation during the pendency of that 
10 
action. 
11 
‘‘(8) APPLICATION OF CMP STATUTE OF LIMI12 
TATION.—A civil action may not be instituted with 
13 
respect to a violation of this part unless an action 
14 
to impose a civil money penalty may be instituted 
15 
under subsection (a) with respect to such violation 
16 
consistent with the second sentence of section 
17 
1128A(c)(1).’’. 
18 
(2) CONFORMING AMENDMENTS.—Subsection 
19 
(b) of such section, as amended by subsection (d)(3), 
20 
is amended— 
21 


(A) in paragraph (1), by striking ‘‘A pen


22 


alty may not be imposed under subsection (a)’’ 

23 


and inserting ‘‘No penalty may be imposed 

24 


under subsection (a) and no damages obtained 

25 


under subsection (c)’’; 

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208 

1 


(B) in paragraph (2)(A)— 

2 


(i) in the matter before clause (i), by 

3 


striking ‘‘a penalty may not be imposed 

4 


under subsection (a)’’ and inserting ‘‘no 

5 


penalty may be imposed under subsection 
6 
(a) and no damages obtained under sub7 
section (c)’’; and 
8 
(ii) in clause (ii), by inserting ‘‘or 
9 
damages’’ after ‘‘the penalty’’; 
10 
(C) in paragraph (2)(B)(i), by striking 
11 
‘‘The period’’ and inserting ‘‘With respect to 
12 
the imposition of a penalty by the Secretary 
13 
under subsection (a), the period’’; and 
14 
(D) in paragraph (3), by inserting ‘‘and 
15 
any damages under subsection (c)’’ after ‘‘any 
16 
penalty under subsection (a)’’. 
17 
(3) EFFECTIVE DATE.—The amendments made 
18 
by this subsection shall apply to violations occurring 
19 
after the date of the enactment of this Act. 
20 
(f) ALLOWING CONTINUED USE OF CORRECTIVE AC21 
TION.—Such section is further amended by adding at the 
22 
end the following new subsection: 
23 
‘‘(d) ALLOWING CONTINUED USE OF CORRECTIVE 
24 
ACTION.—Nothing in this section shall be construed as 
25 
preventing the Office of Civil Rights of the Department 

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1 
of Health and Human Services from continuing, in its dis2 
cretion, to use corrective action without a penalty in cases 
3 
where the person did not know (and by exercising reason4 
able diligence would not have known) of the violation in5 
volved.’’. 
6 
SEC. 4411. AUDITS. 
7 
The Secretary shall provide for periodic audits to en8 
sure that covered entities and business associates that are 
9 
subject to the requirements of this subtitle and subparts 
10 
C and E of part 164 of title 45, Code of Federal Regula11 
tions, as such provisions are in effect as of the date of 
12 
enactment of this Act, comply with such requirements. 
13 
PART II—RELATIONSHIP TO OTHER LAWS; REGU14 
LATORY REFERENCES; EFFECTIVE DATE; RE15 
PORTS 
16 
SEC. 4421. RELATIONSHIP TO OTHER LAWS. 
17 
(a) APPLICATION OF HIPAA STATE PREEMPTION.— 
18 
Section 1178 of the Social Security Act (42 U.S.C. 
19 
1320d–7) shall apply to a provision or requirement under 
20 
this subtitle in the same manner that such section applies 
21 
to a provision or requirement under part C of title XI of 
22 
such Act or a standard or implementation specification 
23 
adopted or established under sections 1172 through 1174 
24 
of such Act. 

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1 
(b) HEALTH INSURANCE PORTABILITY AND AC2 
COUNTABILITY ACT.—The standards governing the pri3 
vacy and security of individually identifiable health infor4 
mation promulgated by the Secretary under sections 
5 
262(a) and 264 of the Health Insurance Portability and 
6 
Accountability Act of 1996 shall remain in effect to the 
7 
extent that they are consistent with this subtitle. The Sec8 
retary shall by rule amend such Federal regulations as re9 
quired to make such regulations consistent with this sub10 
title. 
11 
SEC. 4422. REGULATORY REFERENCES. 
12 
Each reference in this subtitle to a provision of the 
13 
Code of Federal Regulations refers to such provision as 
14 
in effect on the date of the enactment of this title (or to 
15 
the most recent update of such provision). 
16 
SEC. 4423. EFFECTIVE DATE. 
17 
Except as otherwise specifically provided, the provi18 
sions of part I shall take effect on the date that is 12 
19 
months after the date of the enactment of this title. 
20 
SEC. 4424. STUDIES, REPORTS, GUIDANCE. 
21 


(a) REPORT ON COMPLIANCE.— 

22 


(1) IN GENERAL.—For the first year beginning 

23 


after the date of the enactment of this Act and an


24 


nually thereafter, the Secretary shall prepare and 

25 


submit to the Committee on Health, Education, 

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211 

1 


Labor, and Pensions of the Senate and the Com


2 


mittee on Ways and Means and the Committee on 

3 


Energy and Commerce of the House of Representa


4 


tives a report concerning complaints of alleged viola


5 


tions of law, including the provisions of this subtitle 
6 
as well as the provisions of subparts C and E of part 
7 
164 of title 45, Code of Federal Regulations, (as 
8 
such provisions are in effect as of the date of enact9 
ment of this Act) relating to privacy and security of 
10 
health information that are received by the Secretary 
11 
during the year for which the report is being pre12 
pared. Each such report shall include, with respect 
13 
to such complaints received during the year— 
14 
(A) the number of such complaints; 
15 
(B) the number of such complaints re16 
solved informally, a summary of the types of 
17 
such complaints so resolved, and the number of 
18 
covered entities that received technical assist19 
ance from the Secretary during such year in 
20 
order to achieve compliance with such provi21 


sions and the types of such technical assistance 
22 
provided; 
23 


(C) the number of such complaints that 

24 


have resulted in the imposition of civil monetary 

25 


penalties or have been resolved through mone


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1 


tary settlements, including the nature of the 

2 


complaints involved and the amount paid in 

3 


each penalty or settlement; 

4 


(D) the number of compliance reviews con


5 


ducted and the outcome of each such review; 
6 
(E) the number of subpoenas or inquiries 
7 
issued; 
8 
(F) the Secretary’s plan for improving 
9 
compliance with and enforcement of such provi10 
sions for the following year; and 
11 
(G) the number of audits performed and a 
12 
summary of audit findings pursuant to section 
13 
4411. 
14 
(2) AVAILABILITY TO PUBLIC.—Each report 
15 
under paragraph (1) shall be made available to the 
16 
public on the Internet website of the Department of 
17 
Health and Human Services. 
18 
(b) STUDY AND REPORT ON APPLICATION OF PRI19 
VACY AND SECURITY REQUIREMENTS TO NON-HIPAA 
20 
COVERED ENTITIES.— 
21 


(1) STUDY.—Not later than one year after the 

22 


date of the enactment of this title, the Secretary, in 

23 


consultation with the Federal Trade Commission, 

24 


shall conduct a study, and submit a report under 

25 


paragraph (2), on privacy and security requirements 

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1 


for entities that are not covered entities or business 

2 


associates as of the date of the enactment of this 

3 


title, including— 

4 


(A) requirements relating to security, pri


5 


vacy, and notification in the case of a breach of 
6 
security or privacy (including the applicability 
7 
of an exemption to notification in the case of 
8 
individually identifiable health information that 
9 
has been rendered unusable, unreadable, or in10 
decipherable through technologies or methodolo11 
gies recognized by appropriate professional or12 
ganization or standard setting bodies to provide 
13 
effective security for the information) that 
14 
should be applied to— 
15 
(i) vendors of personal health records; 
16 
(ii) entities that offer products or 
17 
services through the website of a vendor of 
18 
personal health records; 
19 
(iii) entities that are not covered enti20 
ties and that offer products or services 
21 


through the websites of covered entities 
22 
that offer individuals personal health 
23 
records; 
24 


(iv) entities that are not covered enti


25 


ties and that access information in a per-

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1 


sonal health record or send information to 

2 


a personal health record; and 

3 


(v) third party service providers used 

4 


by a vendor or entity described in clause 

5 


(i), (ii), (iii), or (iv) to assist in providing 
6 
personal health record products or services; 
7 
(B) a determination of which Federal gov8 
ernment agency is best equipped to enforce 
9 
such requirements recommended to be applied 
10 
to such vendors, entities, and service providers 
11 
under subparagraph (A); and 
12 
(C) a timeframe for implementing regula13 
tions based on such findings. 
14 
(2) REPORT.—The Secretary shall submit to 
15 
the Committee on Finance, the Committee on 
16 
Health, Education, Labor, and Pensions, and the 
17 
Committee on Commerce of the Senate and the 
18 
Committee on Ways and Means and the Committee 
19 
on Energy and Commerce of the House of Rep20 
resentatives a report on the findings of the study 
21 


under paragraph (1) and shall include in such report 

22 


recommendations on the privacy and security re


23 


quirements described in such paragraph. 

24 


(c) GUIDANCE ON IMPLEMENTATION SPECIFICATION 
25 
TO DE-IDENTIFY PROTECTED HEALTH INFORMATION.— 

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1 
Not later than 12 months after the date of the enactment 
2 
of this title, the Secretary shall, in consultation with stake3 
holders, issue guidance on how best to implement the re4 
quirements for the de-identification of protected health in5 
formation under section 164.514(b) of title 45, Code of 
6 
Federal Regulations. 
7 
(d) GAO REPORT ON TREATMENT DISCLOSURES.— 
8 
Not later than one year after the date of the enactment 
9 
of this title, the Comptroller General of the United States 
10 
shall submit to the Committee on Health, Education, 
11 
Labor, and Pensions of the Senate and the Committee on 
12 
Ways and Means and the Committee on Energy and Com13 
merce of the House of Representatives a report on the 
14 
best practices related to the disclosure among health care 
15 
providers of protected health information of an individual 
16 
for purposes of treatment of such individual. Such report 
17 
shall include an examination of the best practices imple18 
mented by States and by other entities, such as health 
19 
information exchanges and regional health information or20 
ganizations, an examination of the extent to which such 
21 
best practices are successful with respect to the quality 
22 
of the resulting health care provided to the individual and 
23 
with respect to the ability of the health care provider to 
24 
manage such best practices, and an examination of the 
25 
use of electronic informed consent for disclosing protected 

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1 
health information for treatment, payment, and health 
2 
care operations. 
3 


TITLE V—MEDICAID 

4 


PROVISIONS 

5 
SEC. 5000. TABLE OF CONTENTS OF TITLE. 
6 
The table of contents of this title is as follows: 


Sec. 5000. Table of contents of title. 
Sec. 5001. Temporary increase of Medicaid FMAP. 
Sec. 5002. Moratoria on certain regulations. 
Sec. 5003. Transitional Medicaid assistance (TMA). 
Sec. 5004. State eligibility option for family planning services. 
Sec. 5005. Protections for Indians under Medicaid and CHIP. 
Sec. 5006. Consultation on Medicaid and CHIP. 


7 
SEC. 5001. TEMPORARY INCREASE OF MEDICAID FMAP. 
8 
(a) PERMITTING MAINTENANCE OF FMAP.—Subject 
9 
to subsections (e), (f), and (g), if the FMAP determined 
10 
without regard to this section for a State for— 
11 
(1) fiscal year 2009 is less than the FMAP as 
12 
so determined for fiscal year 2008, the FMAP for 
13 
the State for fiscal year 2008 shall be substituted 
14 
for the State’s FMAP for fiscal year 2009, before 
15 
the application of this section; 
16 
(2) fiscal year 2010 is less than the FMAP as 
17 


so determined for fiscal year 2008 or fiscal year 

18 


2009 (after the application of paragraph (1)), the 

19 


greater of such FMAP for the State for fiscal year 

20 


2008 or fiscal year 2009 shall be substituted for the 

21 


State’s FMAP for fiscal year 2010, before the appli


22 


cation of this section; and 

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1 


(3) fiscal year 2011 is less than the FMAP as 

2 


so determined for fiscal year 2008, fiscal year 2009 

3 


(after the application of paragraph (1)), or fiscal 

4 


year 2010 (after the application of paragraph (2)), 

5 


the greatest of such FMAP for the State for fiscal 
6 
year 2008, fiscal year 2009, or fiscal year 2010 shall 
7 
be substituted for the State’s FMAP for fiscal year 
8 
2011, before the application of this section, but only 
9 
for the first calendar quarter in fiscal year 2011. 
10 
(b) GENERAL 4.9 PERCENTAGE POINT INCREASE.— 
11 
(1) IN GENERAL.—Subject to subsections (e), 
12 
(f), and (g) and paragraph (2), for each State for 
13 
calendar quarters during the recession adjustment 
14 
period (as defined in subsection (h)(2)), the FMAP 
15 
(after the application of subsection (a)) shall be in16 
creased (without regard to any limitation otherwise 
17 
specified in section 1905(b) of the Social Security 
18 
Act) by 4.9 percentage points. 
19 
(2) SPECIAL ELECTION FOR TERRITORIES.—In 
20 
the case of a State that is not one of the 50 States 
21 


or the District of Columbia, paragraph (1) shall only 

22 


apply if the State makes a one-time election, in a 

23 


form and manner specified by the Secretary and for 

24 


the entire recession adjustment period, to apply the 

25 


increase in FMAP under paragraph (1) and a 10 

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218 

1 


percent increase under subsection (d) instead of ap


2 


plying a 20 percent increase under subsection (d). 
3 
(c) ADDITIONAL ADJUSTMENT TO REFLECT IN4 
CREASE IN UNEMPLOYMENT.— 
5 


(1) IN GENERAL.—Subject to subsections (e), 
6 
(f), and (g), in the case of a State that is a high 
7 
unemployment State (as defined in paragraph (2)) 
8 
for a calendar quarter during the recession adjust9 
ment period, the FMAP (taking into account the ap10 
plication of subsections (a) and (b)) for such quarter 
11 
shall be further increased by the high unemployment 
12 
percentage point adjustment specified in paragraph 
13 
(3) for the State for the quarter. 
14 
(2) HIGH UNEMPLOYMENT STATE.— 
15 
(A) IN GENERAL.—In this subsection, sub16 
ject to subparagraph (B), the term ‘‘high unem17 
ployment State’’ means, with respect to a cal18 
endar quarter in the recession adjustment pe19 
riod, a State that is 1 of the 50 States or the 
20 
District of Columbia and for which the State 
21 


unemployment increase percentage (as com


22 


puted under paragraph (5)) for the quarter is 

23 


not less than 1.5 percentage points. 
24 
(B) MAINTENANCE OF STATUS.—If a 
25 


State is a high unemployment State for a cal


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219 

1 


endar quarter, it shall remain a high unemploy


2 


ment State for each subsequent calendar quar


3 


ter ending before July 1, 2010. 

4 


(3) HIGH UNEMPLOYMENT PERCENTAGE POINT 

5 


ADJUSTMENT.— 
6 
(A) IN GENERAL.—The high unemploy7 
ment percentage point adjustment specified in 
8 
this paragraph for a high unemployment State 
9 
for a quarter is equal to the product of— 
10 
(i) the SMAP for such State and 
11 
quarter (determined after the application 
12 
of subsection (a) and before the application 
13 
of subsection (b)); and 
14 
(ii) subject to subparagraph (B), the 
15 
State unemployment reduction factor spec16 
ified in paragraph (4) for the State and 
17 
quarter. 
18 
(B) MAINTENANCE OF ADJUSTMENT 
19 
LEVEL FOR CERTAIN QUARTERS.—In no case 
20 
shall the State unemployment reduction factor 
21 


applied under subparagraph (A)(ii) for a State 

22 


for a quarter (beginning on or after January 1, 

23 


2009, and ending before July 1, 2010) be less 

24 


than the State unemployment reduction factor 

25 


applied to the State for the previous quarter 

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220 

1 


(taking into account the application of this sub


2 


paragraph). 

3 


(4) STATE UNEMPLOYMENT REDUCTION FAC


4 


TOR.—In the case of a high unemployment State for 

5 


which the State unemployment increase percentage 
6 
(as computed under paragraph (5)) with respect to 
7 
a calendar quarter is— 
8 
(A) not less than 1.5, but is less than 2.5, 
9 
percentage points, the State unemployment re10 
duction factor for the State and quarter is 6 
11 
percent; 
12 
(B) not less than 2.5, but is less than 3.5, 
13 
percentage points, the State unemployment re14 
duction factor for the State and quarter is 12 
15 
percent; or 
16 
(C) not less than 3.5 percentage points, 
17 
the State unemployment reduction factor for 
18 
the State and quarter is 14 percent. 
19 
(5) COMPUTATION OF STATE UNEMPLOYMENT 
20 
INCREASE PERCENTAGE.— 
21 


(A) IN GENERAL.—In this subsection, the 

22 


‘‘State unemployment increase percentage’’ for 

23 


a State for a calendar quarter is equal to the 
24 
number of percentage points (if any) by 
25 
which— 

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221 

1 


(i) the average monthly unemployment 

2 


rate for the State for months in the most 

3 


recent previous 3-consecutive-month period 

4 


for which data are available, subject to 

5 


subparagraph (C); exceeds 
6 
(ii) the lowest average monthly unem7 
ployment rate for the State for any 3-con8 
secutive-month period preceding the period 
9 
described in clause (i) and beginning on or 
10 
after January 1, 2006. 
11 
(B) AVERAGE MONTHLY UNEMPLOYMENT 
12 
RATE DEFINED.—In this paragraph, the term 
13 
‘‘average monthly unemployment rate’’ means 
14 
the average of the monthly number unemployed, 
15 
divided by the average of the monthly civilian 
16 
labor force, seasonally adjusted, as determined 
17 
based on the most recent monthly publications 
18 
of the Bureau of Labor Statistics of the De19 
partment of Labor. 
20 
(C) SPECIAL RULE.—With respect to— 
21 


(i) the first 2 calendar quarters of the 

22 


recession adjustment period, the most re


23 


cent previous 3-consecutive-month period 

24 


described in subparagraph (A)(i) shall be 

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1 


the 3-consecutive-month period beginning 

2 


with October 2008; and 

3 


(ii) the last 2 calendar quarters of the 

4 


recession adjustment period, the most re


5 


cent previous 3-consecutive-month period 
6 
described in such subparagraph shall be 
7 
the 3-consecutive-month period beginning 
8 
with December 2009. 
9 
(d) INCREASE IN CAP ON MEDICAID PAYMENTS TO 
10 
TERRITORIES.—Subject to subsections (f) and (g) , with 
11 
respect to entire fiscal years occurring during the reces12 
sion adjustment period and with respect to fiscal years 
13 
only a portion of which occurs during such period (and 
14 
in proportion to the portion of the fiscal year that occurs 
15 
during such period), the amounts otherwise determined for 
16 
Puerto Rico, the Virgin Islands, Guam, the Northern Mar17 
iana Islands, and American Samoa under subsections (f) 
18 
and (g) of section 1108 of the Social Security Act (42 
19 
U.S.C. 1308) shall each be increased by 20 percent (or, 
20 
in the case of an election under subsection (b)(2), 10 per21 
cent). 
22 


(e) SCOPE OF APPLICATION.—The increases in the 
23 
FMAP for a State under this section shall apply for pur24 
poses of title XIX of the Social Security Act and— 

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1 


(1) the increases applied under subsections (a), 

2 


(b), and (c) shall not apply with respect— 

3 


(A) to payments under parts A, B, and D 

4 


of title IV or title XXI of such Act (42 U.S.C. 

5 


601 et seq. and 1397aa et seq.); 
6 
(B) to payments under title XIX of such 
7 
Act that are based on the enhanced FMAP de8 
scribed in section 2105(b) of such Act (42 
9 
U.S.C. 1397ee(b)); and 
10 
(C) to payments for disproportionate share 
11 
hospital (DSH) payment adjustments under 
12 
section 1923 of such Act (42 U.S.C. 1396r–4); 
13 
and 
14 
(2) the increase provided under subsection (c) 
15 
shall not apply with respect to payments under part 
16 
E of title IV of such Act. 
17 
(f) STATE INELIGIBILITY AND LIMITATION.— 
18 
(1) IN GENERAL.—Subject to paragraphs (2) 
19 
and (3), a State is not eligible for an increase in its 
20 
FMAP under subsection (a), (b), or (c), or an in21 


crease in a cap amount under subsection (d), if eligi


22 


bility standards, methodologies, or procedures under 

23 


its State plan under title XIX of the Social Security 

24 


Act (including any waiver under such title or under 

25 


section 1115 of such Act (42 U.S.C. 1315)) are 

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224 

1 


more restrictive than the eligibility standards, meth


2 


odologies, or procedures, respectively, under such 

3 


plan (or waiver) as in effect on July 1, 2008. 

4 


(2) STATE REINSTATEMENT OF ELIGIBILITY 

5 


PERMITTED.—Subject to paragraph (3), a State that 
6 
has restricted eligibility standards, methodologies, or 
7 
procedures under its State plan under title XIX of 
8 
the Social Security Act (including any waiver under 
9 
such title or under section 1115 of such Act (42 
10 
U.S.C. 1315)) after July 1, 2008, is no longer ineli11 
gible under paragraph (1) beginning with the first 
12 
calendar quarter in which the State has reinstated 
13 
eligibility standards, methodologies, or procedures 
14 
that are no more restrictive than the eligibility 
15 
standards, methodologies, or procedures, respec16 
tively, under such plan (or waiver) as in effect on 
17 
July 1, 2008. 
18 
(3) SPECIAL RULES.—A State shall not be in19 
eligible under paragraph (1)— 
20 
(A) before July 1, 2009, on the basis of a 
21 


restriction that was applied after July 1, 2008, 

22 


and before the date of the enactment of this 
23 
Act; or 
24 


(B) on the basis of a restriction that was 

25 


effective under State law as of July 1, 2008, 

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225 

1 


and would have been in effect as of such date, 

2 


but for a delay (of not longer than 1 calendar 

3 


quarter) in the approval of a request for a new 

4 


waiver under section 1115 of such Act with re


5 


spect to such restriction. 
6 
(4) STATE’S APPLICATION TOWARD RAINY DAY 
7 
FUND.—A State is not eligible for an increase in its 
8 
FMAP under subsection (b) or (c), or an increase in 
9 
a cap amount under subsection (d), if any amounts 
10 
attributable (directly or indirectly) to such increase 
11 
are deposited or credited into any reserve or rainy 
12 
day fund of the State. 
13 
(5) RULE OF CONSTRUCTION.—Nothing in 
14 
paragraph (1) or (2) shall be construed as affecting 
15 
a State’s flexibility with respect to benefits offered 
16 
under the State Medicaid program under title XIX 
17 
of the Social Security Act (42 U.S.C. 1396 et seq.) 
18 
(including any waiver under such title or under sec19 
tion 1115 of such Act (42 U.S.C. 1315)). 
20 
(6) NO WAIVER AUTHORITY.—The Secretary 
21 


may not waive the application of this subsection or 

22 


subsection (g) under section 1115 of the Social Se


23 


curity Act or otherwise. 
24 
(g) REQUIREMENT FOR CERTAIN STATES.—In the 
25 
case of a State that requires political subdivisions within 

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1 
the State to contribute toward the non-Federal share of 
2 
expenditures under the State Medicaid plan required 
3 
under section 1902(a)(2) of the Social Security Act (42 
4 
U.S.C. 1396a(a)(2)), the State is not eligible for an in5 
crease in its FMAP under subsection (a), (b), or (c), or 
6 
an increase in a cap amount under subsection (d), if it 
7 
requires that such political subdivisions pay a greater per8 
centage of the non-Federal share of such expenditures for 
9 
quarters during the recession adjustment period, than the 
10 
percentage that would have been required by the State 
11 
under such plan on September 30, 2008, prior to applica12 
tion of this section. 
13 
(h) DEFINITIONS.—In this section, except as other14 
wise provided: 
15 
(1) FMAP.—The term ‘‘FMAP’’ means the 
16 
Federal medical assistance percentage, as defined in 
17 
section 1905(b) of the Social Security Act (42 
18 
U.S.C. 1396d(b)), as determined without regard to 
19 
this section except as otherwise specified. 
20 
(2) RECESSION ADJUSTMENT PERIOD.—The 
21 


term ‘‘recession adjustment period’’ means the pe


22 


riod beginning on October 1, 2008, and ending on 

23 


December 31, 2010. 

24 


(3) SECRETARY.—The term ‘‘Secretary’’ means 

25 


the Secretary of Health and Human Services. 

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227 

1 


(4) SMAP.—The term ‘‘SMAP’’ means, for a 

2 


State, 100 percent minus the Federal medical assist


3 


ance percentage.. 

4 


(5) STATE.—The term ‘‘State’’ has the mean


5 


ing given such term in section 1101(a)(1) of the So6 
cial Security Act (42 U.S.C. 1301(a)(1)) for pur7 
poses of title XIX of the Social Security Act (42 
8 
U.S.C. 1396 et seq.). 
9 
(i) SUNSET.—This section shall not apply to items 
10 
and services furnished after the end of the recession ad11 
justment period. 
12 
SEC. 5002. MORATORIA ON CERTAIN REGULATIONS. 
13 
(a) EXTENSION OF MORATORIA ON CERTAIN MED14 
ICAID REGULATIONS.—The following sections are each 
15 
amended by striking ‘‘April 1, 2009’’ and inserting ‘‘July 
16 
1, 2009’’: 
17 
(1) Section 7002(a)(1) of the U.S. Troop Read18 
iness, Veterans’ Care, Katrina Recovery, and Iraq 
19 
Accountability Appropriations Act, 2007 (Public 
20 
Law 110–28), as amended by section 7001(a)(1) of 
21 


the Supplemental Appropriations Act, 2008 (Public 

22 


Law 110–252). 

23 


(2) Section 206 of the Medicare, Medicaid, and 

24 


SCHIP Extension Act of 2007 (Public Law 110


25 


173), as amended by section 7001(a)(2) of the Sup-

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228 

1 


plemental Appropriations Act, 2008 (Public Law 

2 


110–252). 

3 


(3) Section 7001(a)(3)(A) of the Supplemental 

4 


Appropriations Act, 2008 (Public Law 110–252). 

5 


(b) ADDITIONAL MEDICAID MORATORIUM.—Not6 
withstanding any other provision of law, with respect to 
7 
expenditures for services furnished during the period be8 
ginning on December 8, 2008 and ending on June 30, 
9 
2009, the Secretary of Health and Human Services shall 
10 
not take any action (through promulgation of regulation, 
11 
issuance of regulatory guidance, use of Federal payment 
12 
audit procedures, or other administrative action, policy, or 
13 
practice, including a Medical Assistance Manual trans14 
mittal or letter to State Medicaid directors) to implement 
15 
the final regulation relating to clarification of the defini16 
tion of outpatient hospital facility services under the Med17 
icaid program published on November 7, 2008 (73 Federal 
18 
Register 66187). 
19 
SEC. 5003. TRANSITIONAL MEDICAID ASSISTANCE (TMA). 
20 
(a) 18-MONTH EXTENSION.— 
21 


(1) IN GENERAL.—Sections 1902(e)(1)(B) and 

22 


1925(f) of the Social Security Act (42 U.S.C. 

23 


1396a(e)(1)(B), 1396r–6(f)) are each amended by 

24 


striking ‘‘September 30, 2003’’ and inserting ‘‘De


25 


cember 31, 2010’’. 

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1 


(2) EFFECTIVE DATE.—The amendments made 

2 


by this subsection shall take effect on July 1, 2009. 

3 


(b) STATE OPTION OF INITIAL 12-MONTH ELIGI4 
BILITY.—Section 1925 of the Social Security Act (42 
5 
U.S.C. 1396r–6) is amended— 
6 
(1) in subsection (a)(1), by inserting ‘‘but sub7 
ject to paragraph (5)’’ after ‘‘Notwithstanding any 
8 
other provision of this title’’; 
9 
(2) by adding at the end of subsection (a) the 
10 
following: 
11 
‘‘(5) OPTION OF 12-MONTH INITIAL ELIGIBILITY 
12 
PERIOD.—A State may elect to treat any reference 
13 
in this subsection to a 6-month period (or 6 months) 
14 
as a reference to a 12-month period (or 12 months). 
15 
In the case of such an election, subsection (b) shall 
16 
not apply.’’; and 
17 
(3) in subsection (b)(1), by inserting ‘‘but sub18 
ject to subsection (a)(5)’’ after ‘‘Notwithstanding 
19 
any other provision of this title’’. 
20 
(c) REMOVAL OF REQUIREMENT FOR PREVIOUS RE21 
CEIPT OF MEDICAL ASSISTANCE.—Section 1925(a)(1) of 
22 
such Act (42 U.S.C. 1396r–6(a)(1)), as amended by sub23 
section (b)(1), is further amended— 
24 


(1) by inserting ‘‘subparagraph (B) and’’ before 

25 


‘‘paragraph (5)’’; 

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230 

1 


(2) by redesignating the matter after ‘‘RE


2 


QUIREMENT.—’’ as a subparagraph (A) with the 

3 


heading ‘‘IN GENERAL.—’’ and with the same inden


4 


tation as subparagraph (B) (as added by paragraph 

5 


(3)); and 
6 
(3) by adding at the end the following: 
7 
‘‘(B) STATE OPTION TO WAIVE REQUIRE8 
MENT FOR 3 MONTHS BEFORE RECEIPT OF 
9 
MEDICAL ASSISTANCE.—A State may, at its op10 
tion, elect also to apply subparagraph (A) in 
11 
the case of a family that was receiving such aid 
12 
for fewer than three months or that had applied 
13 
for and was eligible for such aid for fewer than 
14 
3 months during the 6 immediately preceding 
15 
months described in such subparagraph.’’. 
16 
(d) CMS REPORT ON ENROLLMENT AND PARTICIPA17 
TION RATES UNDER TMA.—Section 1925 of such Act (42 
18 
U.S.C. 1396r–6), as amended by this section, is further 
19 
amended by adding at the end the following new sub20 
section: 
21 
‘‘(g) COLLECTION AND REPORTING OF PARTICIPA22 
TION INFORMATION.— 
23 
‘‘(1) COLLECTION OF INFORMATION FROM 
24 


STATES.—Each State shall collect and submit to the 

25 


Secretary (and make publicly available), in a format 

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231 

1 


specified by the Secretary, information on average 

2 


monthly enrollment and average monthly participa


3 


tion rates for adults and children under this section 

4 


and of the number and percentage of children who 

5 


become ineligible for medical assistance under this 
6 
section whose medical assistance is continued under 
7 
another eligibility category or who are enrolled under 
8 
the State’s child health plan under title XXI. Such 
9 
information shall be submitted at the same time and 
10 
frequency in which other enrollment information 
11 
under this title is submitted to the Secretary. 
12 
‘‘(2) ANNUAL REPORTS TO CONGRESS.—Using 
13 
the information submitted under paragraph (1), the 
14 
Secretary shall submit to Congress annual reports 
15 
concerning enrollment and participation rates de16 
scribed in such paragraph.’’. 
17 
(e) EFFECTIVE DATE.—The amendments made by 
18 
subsections (b) through (d) shall take effect on July 1, 
19 
2009. 
20 
SEC. 5004. STATE ELIGIBILITY OPTION FOR FAMILY PLAN21 


NING SERVICES. 

22 
(a) COVERAGE AS OPTIONAL CATEGORICALLY 
23 
NEEDY GROUP.— 
24 


(1) IN GENERAL.—Section 1902(a)(10)(A)(ii) 
25 
of the Social Security Act (42 U.S.C. 

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232 

1 


1396a(a)(10)(A)(ii)), as amended by section 3003(a) 

2 


of the Health Insurance Assistance for the Unem


3 


ployed Act of 2009, is amended— 

4 


(A) in subclause (XIX), by striking ‘‘or’’ at 

5 


the end; 
6 
(B) in subclause (XX), by adding ‘‘or’’ at 
7 
the end; and 
8 
(C) by adding at the end the following new 
9 
subclause: 
10 
‘‘(XXI) who are described in subsection (ee) 
11 
(relating to individuals who meet certain income 
12 
standards);’’. 
13 
(2) GROUP DESCRIBED.—Section 1902 of such 
14 
Act (42 U.S.C. 1396a), as amended by section 
15 
3003(a) of the Health Insurance Assistance for the 
16 
Unemployed Act of 2009, is amended by adding at 
17 
the end the following new subsection: 
18 
‘‘(ee)(1) Individuals described in this subsection are 
19 
individuals— 
20 
‘‘(A) whose income does not exceed an in21 


come eligibility level established by the State 

22 


that does not exceed the highest income eligi


23 


bility level established under the State plan 

24 


under this title (or under its State child health 

25 


plan under title XXI) for pregnant women; and 

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233 

1 


‘‘(B) who are not pregnant. 

2 


‘‘(2) At the option of a State, individuals de


3 


scribed in this subsection may include individuals 

4 


who, had individuals applied on or before January 1, 

5 


2007, would have been made eligible pursuant to the 
6 
standards and processes imposed by that State for 
7 
benefits described in clause (XV) of the matter fol8 
lowing subparagraph (G) of section subsection 
9 
(a)(10) pursuant to a waiver granted under section 
10 
1115. 
11 
‘‘(3) At the option of a State, for purposes of 
12 
subsection (a)(17)(B), in determining eligibility for 
13 
services under this subsection, the State may con14 
sider only the income of the applicant or recipient.’’. 
15 
(3) LIMITATION ON BENEFITS.—Section 
16 
1902(a)(10) of the Social Security Act (42 U.S.C. 
17 
1396a(a)(10)) is amended in the matter following 
18 
subparagraph (G)— 
19 
(A) by striking ‘‘and (XIV)’’ and inserting 
20 
‘‘(XIV)’’; and 
21 


(B) by inserting ‘‘, and (XV) the medical 

22 


assistance made available to an individual de


23 


scribed in subsection (ee) shall be limited to 

24 


family planning services and supplies described 

25 


in section 1905(a)(4)(C) including medical di-

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234 

1 


agnosis and treatment services that are pro


2 


vided pursuant to a family planning service in 

3 


a family planning setting’’ after ‘‘cervical can4 
cer’’. 
5 
(4) CONFORMING AMENDMENTS.—Section 
6 
1905(a) of the Social Security Act (42 U.S.C. 
7 
1396d(a)), as amended by section 3003(c)(2) of the 
8 
Health Insurance Assistance for the Unemployed 
9 
Act of 2009, is amended in the matter preceding 
10 
paragraph (1)— 
11 
(A) in clause (xiii), by striking ‘‘or’’ at the 
12 
end; 
13 
(B) in clause (xiv), by adding ‘‘or’’ at the 
14 
end; and 
15 
(C) by inserting after clause (xiii) the fol16 
lowing: 
17 
‘‘(xv) individuals described in section 
18 
1902(ee),’’. 
19 
(b) PRESUMPTIVE ELIGIBILITY.— 
20 
(1) IN GENERAL.—Title XIX of the Social Se21 


curity Act (42 U.S.C. 1396 et seq.) is amended by 

22 


inserting after section 1920B the following: 
23 
‘‘PRESUMPTIVE ELIGIBILITY FOR FAMILY PLANNING 
24 
SERVICES 
25 


‘‘SEC. 1920C. (a) STATE OPTION.—State plan ap26 
proved under section 1902 may provide for making med


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235 
1 
ical assistance available to an individual described in sec2 
tion 1902(ee) (relating to individuals who meet certain in3 
come eligibility standard) during a presumptive eligibility 
4 
period. In the case of an individual described in section 
5 
1902(ee), such medical assistance shall be limited to fam6 
ily planning services and supplies described in 
7 
1905(a)(4)(C) and, at the State’s option, medical diag8 
nosis and treatment services that are provided in conjunc9 
tion with a family planning service in a family planning 
10 
setting. 
11 
‘‘(b) DEFINITIONS.—For purposes of this section: 
12 
‘‘(1) PRESUMPTIVE ELIGIBILITY PERIOD.—The 
13 
term ‘presumptive eligibility period’ means, with re14 
spect to an individual described in subsection (a), 
15 
the period that— 
16 
‘‘(A) begins with the date on which a 
17 
qualified entity determines, on the basis of pre18 
liminary information, that the individual is de19 
scribed in section 1902(ee); and 
20 
‘‘(B) ends with (and includes) the earlier 
21 
of— 
22 


‘‘(i) the day on which a determination 

23 


is made with respect to the eligibility of 

24 


such individual for services under the State 
25 
plan; or 

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236 

1 


‘‘(ii) in the case of such an individual 

2 


who does not file an application by the last 

3 


day of the month following the month dur


4 


ing which the entity makes the determina


5 


tion referred to in subparagraph (A), such 
6 
last day. 
7 
‘‘(2) QUALIFIED ENTITY.— 
8 
‘‘(A) IN GENERAL.—Subject to subpara9 
graph (B), the term ‘qualified entity’ means 
10 
any entity that— 
11 
‘‘(i) is eligible for payments under a 
12 
State plan approved under this title; and 
13 
‘‘(ii) is determined by the State agen14 
cy to be capable of making determinations 
15 
of the type described in paragraph (1)(A). 
16 
‘‘(B) RULE OF CONSTRUCTION.—Nothing 
17 
in this paragraph shall be construed as pre18 
venting a State from limiting the classes of en19 
tities that may become qualified entities in 
20 
order to prevent fraud and abuse. 
21 


‘‘(c) ADMINISTRATION.— 

22 


‘‘(1) IN GENERAL.—The State agency shall pro


23 


vide qualified entities with— 

24 


‘‘(A) such forms as are necessary for an 

25 


application to be made by an individual de


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237 

1 


scribed in subsection (a) for medical assistance 

2 


under the State plan; and 

3 


‘‘(B) information on how to assist such in


4 


dividuals in completing and filing such forms. 

5 


‘‘(2) NOTIFICATION REQUIREMENTS.—A quali6 
fied entity that determines under subsection 
7 
(b)(1)(A) that an individual described in subsection 
8 
(a) is presumptively eligible for medical assistance 
9 
under a State plan shall— 
10 
‘‘(A) notify the State agency of the deter11 
mination within 5 working days after the date 
12 
on which determination is made; and 
13 
‘‘(B) inform such individual at the time 
14 
the determination is made that an application 
15 
for medical assistance is required to be made by 
16 
not later than the last day of the month fol17 
lowing the month during which the determina18 
tion is made. 
19 
‘‘(3) APPLICATION FOR MEDICAL ASSIST20 
ANCE.—In the case of an individual described in 
21 


subsection (a) who is determined by a qualified enti


22 


ty to be presumptively eligible for medical assistance 

23 


under a State plan, the individual shall apply for 

24 


medical assistance by not later than the last day of 

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238 

1 


the month following the month during which the de


2 


termination is made. 

3 


‘‘(d) PAYMENT.—Notwithstanding any other provi4 
sion of law, medical assistance that— 
5 


‘‘(1) is furnished to an individual described in 
6 
subsection (a)— 
7 
‘‘(A) during a presumptive eligibility pe8 
riod; 
9 
‘‘(B) by a entity that is eligible for pay10 
ments under the State plan; and 
11 
‘‘(2) is included in the care and services covered 
12 
by the State plan, 
13 
shall be treated as medical assistance provided by such 
14 
plan for purposes of clause (4) of the first sentence of 
15 
section 1905(b).’’. 
16 
(2) CONFORMING AMENDMENTS.— 
17 
(A) Section 1902(a)(47) of the Social Se18 
curity Act (42 U.S.C. 1396a(a)(47)) is amend19 
ed by inserting before the semicolon at the end 
20 
the following: ‘‘and provide for making medical 
21 


assistance available to individuals described in 

22 


subsection (a) of section 1920C during a pre


23 


sumptive eligibility period in accordance with 

24 


such section’’. 

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239 

1 


(B) Section 1903(u)(1)(D)(v) of such Act 

2 


(42 U.S.C. 1396b(u)(1)(D)(v)) is amended— 

3 


(i) by striking ‘‘or for’’ and inserting 

4 


‘‘for’’; and 

5 


(ii) by inserting before the period the 
6 
following: ‘‘, or for medical assistance pro7 
vided to an individual described in sub8 
section (a) of section 1920C during a pre9 
sumptive eligibility period under such sec10 
tion’’. 
11 
(c) CLARIFICATION OF COVERAGE OF FAMILY PLAN12 
NING SERVICES AND SUPPLIES.—Section 1937(b) of the 
13 
Social Security Act (42 U.S.C. 1396u–7(b)) is amended 
14 
by adding at the end the following: 
15 
‘‘(5) COVERAGE OF FAMILY PLANNING SERV16 
ICES AND SUPPLIES.—Notwithstanding the previous 
17 
provisions of this section, a State may not provide 
18 
for medical assistance through enrollment of an indi19 
vidual with benchmark coverage or benchmark-equiv20 
alent coverage under this section unless such cov21 


erage includes for any individual described in section 

22 


1905(a)(4)(C), medical assistance for family plan


23 


ning services and supplies in accordance with such 
24 
section.’’. 

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240 

1 


(d) EFFECTIVE DATE.—The amendments made by 
2 
this section take effect on the date of the enactment of 
3 
this Act and shall apply to items and services furnished 
4 
on or after such date. 
5 
SEC. 5005. PROTECTIONS FOR INDIANS UNDER MEDICAID 
6 
AND CHIP. 
7 
(a) PREMIUMS AND COST SHARING PROTECTION 
8 
UNDER MEDICAID.— 
9 
(1) IN GENERAL.—Section 1916 of the Social 
10 
Security Act (42 U.S.C. 1396o) is amended— 
11 
(A) in subsection (a), in the matter pre12 
ceding paragraph (1), by striking ‘‘and (i)’’ and 
13 
inserting ‘‘, (i), and (j)’’; and 
14 
(B) by adding at the end the following new 
15 
subsection: 
16 
‘‘(j) NO PREMIUMS OR COST SHARING FOR INDIANS 
17 
FURNISHED ITEMS OR SERVICES DIRECTLY BY INDIAN 
18 
HEALTH PROGRAMS OR THROUGH REFERRAL UNDER 
19 
CONTRACT HEALTH SERVICES.— 
20 
‘‘(1) NO COST SHARING FOR ITEMS OR SERV21 


ICES FURNISHED TO INDIANS THROUGH INDIAN 

22 


HEALTH PROGRAMS.— 

23 


‘‘(A) IN GENERAL.—No enrollment fee, 

24 


premium, or similar charge, and no deduction, 

25 


copayment, cost sharing, or similar charge shall 

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241 

1 


be imposed against an Indian who is furnished 

2 


an item or service directly by the Indian Health 

3 


Service, an Indian Tribe, Tribal Organization, 

4 


or Urban Indian Organization or through refer


5 


ral under contract health services for which 
6 
payment may be made under this title. 
7 
‘‘(B) NO REDUCTION IN AMOUNT OF PAY8 
MENT TO INDIAN HEALTH PROVIDERS.—Pay9 
ment due under this title to the Indian Health 
10 
Service, an Indian Tribe, Tribal Organization, 
11 
or Urban Indian Organization, or a health care 
12 
provider through referral under contract health 
13 
services for the furnishing of an item or service 
14 
to an Indian who is eligible for assistance under 
15 
such title, may not be reduced by the amount 
16 
of any enrollment fee, premium, or similar 
17 
charge, or any deduction, copayment, cost shar18 
ing, or similar charge that would be due from 
19 
the Indian but for the operation of subpara20 
graph (A). 
21 
‘‘(2) RULE OF CONSTRUCTION.—Nothing in 
22 


this subsection shall be construed as restricting the 

23 


application of any other limitations on the imposi


24 


tion of premiums or cost sharing that may apply to 

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242 

1 


an individual receiving medical assistance under this 

2 


title who is an Indian.’’. 
3 
(2) CONFORMING AMENDMENT.—Section 
4 


1916A(b)(3) of such Act (42 U.S.C. 1396o–1(b)(3)) 

5 


is amended— 
6 
(A) in subparagraph (A), by adding at the 
7 
end the following new clause: 
8 
‘‘(vi) An Indian who is furnished an 
9 
item or service directly by the Indian 
10 
Health Service, an Indian Tribe, Tribal 
11 
Organization or Urban Indian Organiza12 
tion or through referral under contract 
13 
health services.’’; and 
14 
(B) in subparagraph (B), by adding at the 
15 
end the following new clause: 
16 
‘‘(ix) Items and services furnished to 
17 
an Indian directly by the Indian Health 
18 
Service, an Indian Tribe, Tribal Organiza19 
tion or Urban Indian Organization or 
20 
through referral under contract health 
21 


services.’’. 

22 


(3) EFFECTIVE DATE.—The amendments made 

23 


by this subsection shall take effect on October 1, 
24 
2009. 

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243 

1 


(b) TREATMENT OF CERTAIN PROPERTY FROM RE2 
SOURCES FOR MEDICAID AND CHIP ELIGIBILITY.— 
3 


(1) MEDICAID.—Section 1902 of the Social Se


4 


curity Act (42 U.S.C. 1396a), as amended by sec


5 


tion 3003(a) of the Health Insurance Assistance for 
6 
the Unemployed Act of 2009 and section 5004, is 
7 
amended by adding at the end the following new 
8 
subsection: 
9 
‘‘(ff) Notwithstanding any other requirement of this 
10 
title or any other provision of Federal or State law, a State 
11 
shall disregard the following property from resources for 
12 
purposes of determining the eligibility of an individual who 
13 
is an Indian for medical assistance under this title: 
14 
‘‘(1) Property, including real property and im15 
provements, that is held in trust, subject to Federal 
16 
restrictions, or otherwise under the supervision of 
17 
the Secretary of the Interior, located on a reserva18 
tion, including any federally recognized Indian 
19 
Tribe’s reservation, pueblo, or colony, including 
20 
former reservations in Oklahoma, Alaska Native re21 


gions established by the Alaska Native Claims Set


22 


tlement Act, and Indian allotments on or near a res


23 


ervation as designated and approved by the Bureau 

24 


of Indian Affairs of the Department of the Interior. 

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244 

1 


‘‘(2) For any federally recognized Tribe not de


2 


scribed in paragraph (1), property located within the 

3 


most recent boundaries of a prior Federal reserva4 
tion. 
5 


‘‘(3) Ownership interests in rents, leases, royal6 
ties, or usage rights related to natural resources (in7 
cluding extraction of natural resources or harvesting 
8 
of timber, other plants and plant products, animals, 
9 
fish, and shellfish) resulting from the exercise of fed10 
erally protected rights. 
11 
‘‘(4) Ownership interests in or usage rights to 
12 
items not covered by paragraphs (1) through (3) 
13 
that have unique religious, spiritual, traditional, or 
14 
cultural significance or rights that support subsist15 
ence or a traditional lifestyle according to applicable 
16 
tribal law or custom.’’. 
17 
(2) APPLICATION TO CHIP.—Section 2107(e)(1) 
18 
of such Act (42 U.S.C. 1397gg(e)(1)) is amended by 
19 
adding at the end the following new subparagraph: 
20 
‘‘(E) Section 1902(ff) (relating to dis21 


regard of certain property for purposes of mak


22 


ing eligibility determinations).’’. 

23 


(c) CONTINUATION OF CURRENT LAW PROTECTIONS 
24 
OF CERTAIN INDIAN PROPERTY FROM MEDICAID ESTATE 

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245 
1 
RECOVERY.—Section 1917(b)(3) of the Social Security 
2 
Act (42 U.S.C. 1396p(b)(3)) is amended— 
3 


(1) by inserting ‘‘(A)’’ after ‘‘(3)’’; and 

4 


(2) by adding at the end the following new sub


5 


paragraph: 
6 
‘‘(B) The standards specified by the Sec7 
retary under subparagraph (A) shall require 
8 
that the procedures established by the State 
9 
agency under subparagraph (A) exempt income, 
10 
resources, and property that are exempt from 
11 
the application of this subsection as of April 1, 
12 
2003, under manual instructions issued to carry 
13 
out this subsection (as in effect on such date) 
14 
because of the Federal responsibility for Indian 
15 
Tribes and Alaska Native Villages. Nothing in 
16 
this subparagraph shall be construed as pre17 
venting the Secretary from providing additional 
18 
estate recovery exemptions under this title for 
19 
Indians.’’. 
20 
SEC. 5006. CONSULTATION ON MEDICAID AND CHIP. 
21 


(a) IN GENERAL.—Section 1139 of the Social Secu22 
rity Act (42 U.S.C. 1320b–9) is amended to read as fol23 
lows: 
24 
‘‘CONSULTATION WITH TRIBAL TECHNICAL ADVISORY 
25 


GROUP (TTAG) 

26 


‘‘SEC. 1139. 

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246 

1 


‘‘The Secretary shall maintain within the Centers for 
2 
Medicaid & Medicare Services (CMS) a Tribal Technical 
3 
Advisory Group, which was first established in accordance 
4 
with requirements of the charter dated September 30, 
5 
2003, and the Secretary shall include in such Group a rep6 
resentative of the Urban Indian Organizations and the 
7 
Service. The representative of the Urban Indian Organiza8 
tion shall be deemed to be an elected officer of a tribal 
9 
government for purposes of applying section 204(b) of the 
10 
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
11 
1534(b)).’’. 
12 
(b) SOLICITATION OF ADVICE UNDER MEDICAID AND 
13 
CHIP.— 
14 
(1) MEDICAID STATE PLAN AMENDMENT.—Sec15 
tion 1902(a) of the Social Security Act (42 U.S.C. 
16 
1396a(a)) is amended— 
17 
(A) in paragraph (70), by striking ‘‘and’’ 
18 
at the end; 
19 
(B) in paragraph (71), by striking the pe20 
riod at the end and inserting ‘‘; and’’; and 
21 


(C) by inserting after paragraph (71), the 

22 


following new paragraph: 

23 


‘‘(72) in the case of any State in which 1 or 

24 


more Indian Health Programs or Urban Indian Or


25 


ganizations furnishes health care services, provide 

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247 

1 


for a process under which the State seeks advice on 

2 


a regular, ongoing basis from designees of such In


3 


dian Health Programs and Urban Indian Organiza


4 


tions on matters relating to the application of this 

5 


title that are likely to have a direct effect on such 
6 
Indian Health Programs and Urban Indian Organi7 
zations and that— 
8 
‘‘(A) shall include solicitation of advice 
9 
prior to submission of any plan amendments, 
10 
waiver requests, and proposals for demonstra11 
tion projects likely to have a direct effect on In12 
dians, Indian Health Programs, or Urban In13 
dian Organizations; and 
14 
‘‘(B) may include appointment of an advi15 
sory committee and of a designee of such In16 
dian Health Programs and Urban Indian Orga17 
nizations to the medical care advisory com18 
mittee advising the State on its State plan 
19 
under this title.’’. 
20 
(2) APPLICATION TO CHIP.—Section 2107(e)(1) 
21 


of such Act (42 U.S.C. 1397gg(e)(1)), as amended 

22 


by section 5005(b), is amended by adding at the end 

23 


the following new subparagraph: 

24 


‘‘(F) Section 1902(a)(72) (relating to re


25 


quiring certain States to seek advice from des-

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248 

1 


ignees of Indian Health Programs and Urban 

2 


Indian Organizations).’’. 

3 


(c) RULE OF CONSTRUCTION.—Nothing in the 
4 
amendments made by this section shall be construed as 
5 
superseding existing advisory committees, working groups, 
6 
guidance, or other advisory procedures established by the 
7 
Secretary of Health and Human Services or by any State 
8 
with respect to the provision of health care to Indians. 

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