II 

113TH CONGRESS 

1ST SESSION S. 1685 

To amend the Public Health Service Act and the Social Security Act to 

extend health information technology assistance eligibility to behavioral 

health, mental health, and substance abuse professionals and facilities, 

and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 12, 2013 

Mr. PORTMAN introduced the following bill; which was read twice and referred 

to the Committee on Finance 

A BILL 

To amend the Public Health Service Act and the Social 

Security Act to extend health information technology assistance eligibility to behavioral health, mental health, 

and substance abuse professionals and facilities, and for 

other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Behavioral Health In5 formation Technology Coordination Act of 2013’’. 


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1 SEC. 2. EXTENSION OF HEALTH INFORMATION TECH2 NOLOGY ASSISTANCE FOR BEHAVIORAL AND 

3 MENTAL HEALTH AND SUBSTANCE ABUSE. 

4 Section 3000(3) of the Public Health Service Act (42 

5 U.S.C. 300jj(3)) is amended by inserting before ‘‘and any 

6 other category’’ the following: ‘‘behavioral and mental 

7 health professionals (as defined in section 

8 331(a)(3)(E)(i)), a substance abuse professional, a psy9 chiatric hospital (as defined in section 1861(f) of the So10 cial Security Act), a community mental health center 

11 meeting the criteria specified in section 1913(c), a residen12 tial or outpatient mental health or substance abuse treat13 ment facility,’’. 

14 SEC. 3. EXTENSION OF ELIGIBILITY FOR MEDICARE AND 

15 MEDICAID HEALTH INFORMATION TECH16 NOLOGY IMPLEMENTATION ASSISTANCE. 

17 (a) PAYMENT INCENTIVES FOR ELIGIBLE PROFES18 SIONALS UNDER MEDICARE.—Section 1848 of the Social 

19 Security Act (42 U.S.C. 1395w–4) is amended— 

20 (1) in subsection (a)(7)— 

21 (A) in subparagraph (E), by adding at the 

22 end the following new clause: 

23 ‘‘(iv) ADDITIONAL ELIGIBLE PROFES24 SIONAL.—The term ‘additional eligible pro25 fessional’ means a clinical psychologist proVerDate Mar 15 2010 21:12 Nov 13, 2013 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1685.IS S1685

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1 viding qualified psychologist services (as 

2 defined in section 1861(ii)).’’; and 

3 (B) by adding at the end the following new 

4 subparagraph: 

5 ‘‘(F) APPLICATION TO ADDITIONAL ELIGI6 BLE PROFESSIONALS.—The Secretary shall 

7 apply the provisions of this paragraph with re8 spect to an additional eligible professional in 

9 the same manner as such provisions apply to an 

10 eligible professional, except in applying sub11 paragraph (A)— 

12 ‘‘(i) in clause (i), the reference to 

13 2015 shall be deemed a reference to 2019; 

14 ‘‘(ii) in clause (ii), the references to 

15 2015, 2016, and 2017 shall be deemed ref16 erences to 2019, 2020, and 2021, respec17 tively; and 

18 ‘‘(iii) in clause (iii), the reference to 

19 2018 shall be deemed a reference to 

20 2022.’’; and 

21 (2) in subsection (o)— 

22 (A) in paragraph (5), by adding at the end 

23 the following new subparagraph: 

24 ‘‘(D) ADDITIONAL ELIGIBLE PROFES25 SIONAL.—The term ‘additional eligible profesVerDate Mar 15 2010 21:12 Nov 13, 2013 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1685.IS S1685

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1 sional’ means a clinical psychologist providing 

2 qualified psychologist services (as defined in 

3 section 1861(ii)).’’; and 

4 (B) by adding at the end the following new 

5 paragraph: 

6 ‘‘(6) APPLICATION TO ADDITIONAL ELIGIBLE

7 PROFESSIONALS.—The Secretary shall apply the 

8 provisions of this subsection with respect to an addi9 tional eligible professional in the same manner as 

10 such provisions apply to an eligible professional, ex11 cept in applying— 

12 ‘‘(A) paragraph (1)(A)(ii), the reference to 

13 2016 shall be deemed a reference to 2020; 

14 ‘‘(B) paragraph (1)(B)(ii), the references 

15 to 2011 and 2012 shall be deemed references to 

16 2015 and 2016, respectively; 

17 ‘‘(C) paragraph (1)(B)(iii), the references 

18 to 2013 shall be deemed references to 2017; 

19 ‘‘(D) paragraph (1)(B)(v), the references 

20 to 2014 shall be deemed references to 2018; 

21 and 

22 ‘‘(E) paragraph (1)(E), the reference to 

23 2011 shall be deemed a reference to 2015.’’. 

24 (b) ELIGIBLE HOSPITALS.—Section 1886 of the So25 cial Security Act (42 U.S.C. 1395ww) is amended— 


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1 (1) in subsection (b)(3)(B)(ix), by adding at the 

2 end the following new subclause: 

3 ‘‘(V) The Secretary shall apply 

4 the provisions of this subsection with 

5 respect to an additional eligible hos6 pital (as defined in subsection 

7 (n)(6)(C)) in the same manner as 

8 such provisions apply to an eligible 

9 hospital, except in applying— 

10 ‘‘(aa) subclause (I), the ref11 erences to 2015, 2016, and 2017 

12 shall be deemed references to 

13 2019, 2020, and 2021, respec14 tively; and 

15 ‘‘(bb) subclause (III), the 

16 reference to 2015 shall be 

17 deemed a reference to 2019.’’; 

18 and 

19 (2) in subsection (n)— 

20 (A) in paragraph (6), by adding at the end 

21 the following new subparagraph: 

22 ‘‘(C) ADDITIONAL ELIGIBLE HOSPITAL.— 

23 The term ‘additional eligible hospital’ means an 

24 inpatient hospital that is a psychiatric hospital 

25 (as defined in section 1861(f)).’’; and 


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1 (B) by adding at the end the following new 

2 paragraph: 

3 ‘‘(7) APPLICATION TO ADDITIONAL ELIGIBLE

4 HOSPITALS.—The Secretary shall apply the provi5 sions of this subsection with respect to an additional 

6 eligible hospital in the same manner as such provi7 sions apply to an eligible hospital, except in apply8 ing— 

9 ‘‘(A) paragraph (2)(E)(ii), the references 

10 to 2013 and 2015 shall be deemed references to 

11 2017 and 2019, respectively; and 

12 ‘‘(B) paragraph (2)(G)(i), the reference to 

13 2011 shall be deemed a reference to 2015.’’. 

14 (c) MEDICAID PROVIDERS.—Section 1903(t) of the 

15 Social Security Act (42 U.S.C. 1396b(t)) is amended— 

16 (1) in paragraph (2)(B)— 

17 (A) in clause (i), by striking ‘‘, or’’ and in18 serting a semicolon; 

19 (B) in clause (ii), by striking the period 

20 and inserting a semicolon; and 

21 (C) by adding after clause (ii) the following 

22 new clauses: 

23 ‘‘(iii) a public hospital that is prin24 cipally a psychiatric hospital (as defined in 

25 section 1861(f)); 


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1 ‘‘(iv) a private hospital that is prin2 cipally a psychiatric hospital (as defined in 

3 section 1861(f)) and that has at least 10 

4 percent of its patient volume (as estimated 

5 in accordance with a methodology estab6 lished by the Secretary) attributable to in7 dividuals receiving medical assistance 

8 under this title; 

9 ‘‘(v) a community mental health cen10 ter meeting the criteria specified in section 

11 1913(c) of the Public Health Service Act; 

12 or 

13 ‘‘(vi) a residential or outpatient men14 tal health or substance abuse treatment fa15 cility that— 

16 ‘‘(I) is accredited by the Joint 

17 Commission on Accreditation of 

18 Healthcare Organizations, the Com19 mission on Accreditation of Rehabili20 tation Facilities, the Council on Ac21 creditation, or any other national ac22 crediting agency recognized by the 

23 Secretary; and 

24 ‘‘(II) has at least 10 percent of 

25 its patient volume (as estimated in acVerDate Mar 15 2010 21:12 Nov 13, 2013 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1685.IS S1685

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1 cordance with a methodology estab2 lished by the Secretary) attributable 

3 to individuals receiving medical assist4 ance under this title.’’; and 

5 (2) in paragraph (3)(B)— 

6 (A) in clause (iv), by striking ‘‘and’’ after 

7 the semicolon; 

8 (B) in clause (v), by striking the period 

9 and inserting ‘‘; and’’; and 

10 (C) by adding at the end the following new 

11 clause: 

12 ‘‘(vi) clinical psychologist providing 

13 qualified psychologist services (as defined 

14 in section 1861(ii)), if such clinical psy15 chologist is practicing in an outpatient 

16 clinic that— 

17 ‘‘(I) is led by a clinical psycholo18 gist; and 

19 ‘‘(II) is not otherwise receiving 

20 payment under paragraph (1) as a 

21 Medicaid provider described in para22 graph (2)(B).’’. 

23 (d) MEDICARE ADVANTAGE ORGANIZATIONS.—Sec24 tion 1853 of the Social Security Act (42 U.S.C. 1395w– 

25 23) is amended— 


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1 (1) in subsection (l)— 

2 (A) in paragraph (1)— 

3 (i) by inserting ‘‘or additional eligible 

4 professionals (as described in paragraph 

5 (9))’’ after ‘‘paragraph (2)’’; and 

6 (ii) by inserting ‘‘and additional eligi7 ble professionals’’ before ‘‘under such sec8 tions’’; 

9 (B) in paragraph (3)(B)— 

10 (i) in clause (i) in the matter pre11 ceding subclause (I), by inserting ‘‘or an 

12 additional eligible professional described in 

13 paragraph (9)’’ after ‘‘paragraph (2)’’; and 

14 (ii) in clause (ii)— 

15 (I) in the matter preceding sub16 clause (I), by inserting ‘‘or an addi17 tional eligible professional described in 

18 paragraph (9)’’ after ‘‘paragraph 

19 (2)’’; and 

20 (II) in subclause (I), by inserting 

21 ‘‘or an additional eligible professional, 

22 respectively,’’ after ‘‘eligible profes23 sional’’; 


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1 (C) in paragraph (3)(C), by inserting ‘‘and 

2 additional eligible professionals’’ after ‘‘all eligi3 ble professionals’’; 

4 (D) in paragraph (4)(D), by adding at the 

5 end the following new sentence: ‘‘In the case 

6 that a qualifying MA organization attests that 

7 not all additional eligible professionals of the 

8 organization are meaningful EHR users with 

9 respect to an applicable year, the Secretary 

10 shall apply the payment adjustment under this 

11 paragraph based on the proportion of all such 

12 additional eligible professionals of the organiza13 tion that are not meaningful EHR users for 

14 such year.’’; 

15 (E) in paragraph (6)(A), by inserting 

16 ‘‘and, as applicable, each additional eligible pro17 fessional described in paragraph (9)’’ after 

18 ‘‘paragraph (2)’’; 

19 (F) in paragraph (6)(B), by inserting 

20 ‘‘and, as applicable, each additional eligible hos21 pital described in paragraph (9)’’ after ‘‘sub22 section (m)(1)’’; 

23 (G) in paragraph (7)(A), by inserting 

24 ‘‘and, as applicable, additional eligible profes25 sionals’’ after ‘‘eligible professionals’’; 


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1 (H) in paragraph (7)(B), by inserting 

2 ‘‘and, as applicable, additional eligible profes3 sionals’’ after ‘‘eligible professionals’’; 

4 (I) in paragraph (8)(B), by inserting ‘‘and 

5 additional eligible professionals described in 

6 paragraph (9)’’ after ‘‘paragraph (2)’’; and 

7 (J) by adding at the end the following new 

8 paragraph: 

9 ‘‘(9) ADDITIONAL ELIGIBLE PROFESSIONAL DE10 SCRIBED.—With respect to a qualifying MA organi11 zation, an additional eligible professional described 

12 in this paragraph is an additional eligible profes13 sional (as defined for purposes of section 1848(o)) 

14 who— 

15 ‘‘(A)(i) is employed by the organization; or 

16 ‘‘(ii)(I) is employed by, or is a partner of, 

17 an entity that through contract with the organi18 zation furnishes at least 80 percent of the enti19 ty’s Medicare patient care services to enrollees 

20 of such organization; and 

21 ‘‘(II) furnishes at least 80 percent of the 

22 professional services of the additional eligible 

23 professional covered under this title to enrollees 

24 of the organization; and 


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

2 hours per week of patient care services.’’; and 

3 (2) in subsection (m)— 

4 (A) in paragraph (1)— 

5 (i) by inserting ‘‘or additional eligible 

6 hospitals (as described in paragraph (7))’’ 

7 after ‘‘paragraph (2)’’; and 

8 (ii) by inserting ‘‘and additional eligi9 ble hospitals’’ before ‘‘under such sec10 tions’’; 

11 (B) in paragraph (3)(A)(i), by inserting 

12 ‘‘or additional eligible hospital’’ after ‘‘eligible 

13 hospital’’; 

14 (C) in paragraph (3)(A)(ii), by inserting 

15 ‘‘or an additional eligible hospital’’ after ‘‘eligi16 ble hospital’’ in each place it occurs; 

17 (D) in paragraph (3)(B)— 

18 (i) in clause (i), by inserting ‘‘or an 

19 additional eligible hospital described in 

20 paragraph (7)’’ after ‘‘paragraph (2)’’; and 

21 (ii) in clause (ii)— 

22 (I) in the matter preceding sub23 clause (I), by inserting ‘‘or an addi24 tional eligible hospital described in 


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1 paragraph (7)’’ after ‘‘paragraph 

2 (2)’’; and 

3 (II) in subclause (I), by inserting 

4 ‘‘or an additional eligible hospital, re5 spectively,’’ after ‘‘eligible hospital’’; 

6 (E) in paragraph (4)(A), by inserting ‘‘or 

7 one or more additional eligible hospitals (as de8 fined in section 1886(n)), as appropriate,’’ after 

9 ‘‘section 1886(n)(6)(A))’’; 

10 (F) in paragraph (4)(D), by adding at the 

11 end the following new sentence: ‘‘In the case 

12 that a qualifying MA organization attests that 

13 not all additional eligible hospitals of the orga14 nization are meaningful EHR users with re15 spect to an applicable period, the Secretary 

16 shall apply the payment adjustment under this 

17 paragraph based on the methodology specified 

18 by the Secretary, taking into account the pro19 portion of such additional eligible hospitals, or 

20 discharges from such hospitals, that are not 

21 meaningful EHR users for such period.’’; 

22 (G) in paragraph (5)(A), by inserting 

23 ‘‘and, as applicable, each additional eligible hos24 pital described in paragraph (7)’’ after ‘‘para25 graph (2)’’; 


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1 (H) in paragraph (5)(B), by inserting 

2 ‘‘and additional eligible hospitals, as applica3 ble,’’ after ‘‘eligible hospitals’’; 

4 (I) in paragraph (6)(B), by inserting ‘‘and 

5 additional eligible hospitals described in para6 graph (7)’’ after ‘‘paragraph (2)’’; and 

7 (J) by adding at the end the following new 

8 paragraph: 

9 ‘‘(7) ADDITIONAL ELIGIBLE HOSPITAL DE10 SCRIBED.—With respect to a qualifying MA organi11 zation, an additional eligible hospital described in 

12 this paragraph is an additional eligible hospital (as 

13 defined in section 1886(n)(6)(C)) that is under com14 mon corporate governance with such organization 

15 and serves individuals enrolled under an MA plan of16 fered by such organization.’’. 

17 SEC. 4. PROVIDING PROTECTIONS FOR CERTAIN PRO18 VIDERS, VENDORS, AND USERS OF CERTIFIED 

19 EHR TECHNOLOGY. 

20 (a) COVERED ENTITIES.— 

21 (1) COVERED ENTITIES.—For purposes of this 

22 section, a covered entity means, with respect to cer23 tified EHR technology (as defined in section 

24 1848(o)(4) of the Social Security Act (42 U.S.C. 

25 1395w–4(o)(4))) and a year, any of the following: 


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1 (A) MEANINGFUL EHR USERS.— 

2 (i) An eligible professional (as defined 

3 in paragraph (5)(C) of section 1848(o) of 

4 the Social Security Act (42 U.S.C. 1395w– 

5 4(o))) determined to be a meaningful EHR 

6 user under paragraph (2) of such section 

7 for the EHR reporting period (as defined 

8 in paragraph (5)(B) of such section) dur9 ing such year, or an additional eligible pro10 fessional (as defined in paragraph (5)(D) 

11 of such section) determined to be a mean12 ingful EHR user pursuant to paragraph 

13 (6) of such section for the EHR reporting 

14 period (as defined in paragraph (5)(B) of 

15 such section) during such year. 

16 (ii) In the case of a qualifying MA or17 ganization (as defined in paragraph (5) of 

18 section 1853(l) of such Act (42 U.S.C. 

19 1395w–23(l))), an eligible professional de20 scribed in paragraph (2) of such section or, 

21 as applicable, an additional eligible profes22 sional described in paragraph (9) of such 

23 section of the organization who the organi24 zation attests under paragraph (6) of such 


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1 section to be a meaningful EHR user for 

2 such year. 

3 (iii) In the case of a qualifying MA 

4 organization (as so defined), an eligible 

5 hospital described in section 1853(m)(2) of 

6 such Act (42 U.S.C. 1395w–23(m)(2)) or, 

7 as applicable, an additional eligible hospital 

8 described in section 1853(m)(7) of such 

9 Act (42 U.S.C. 1395w–23(m)(7)) of the 

10 organization which attests under section 

11 1853(l)(6) of such Act (42 U.S.C. 1395w– 

12 23(l)(6)) to be a meaningful EHR user for 

13 the applicable period with respect to such 

14 year. 

15 (iv) An eligible hospital (as defined in 

16 paragraph (6)(B) of section 1886(n) of 

17 such Act (42 U.S.C. 1395ww(n)) deter18 mined to be a meaningful EHR user under 

19 paragraph (3) of such section for the EHR 

20 reporting period (as defined in paragraph 

21 (6)(A) of such section) with respect to 

22 such year, or an additional eligible hospital 

23 (as defined in paragraph (6)(C) of such 

24 section) determined to be a meaningful 

25 EHR user under paragraph (7) of such 


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1 section for the EHR reporting period (as 

2 defined in paragraph (6)(A) of such sec3 tion) with respect to such year. 

4 (v) A critical access hospital deter5 mined pursuant to section 1814(l)(3) of 

6 such Act (42 U.S.C. 1395f(l)(3)) to be a 

7 meaningful EHR user (as would be deter8 mined under paragraph (3) of section 

9 1886(n) of such Act (42 U.S.C. 

10 1395ww(n))) for an EHR reporting period 

11 (as defined in paragraph (6)(A) of such 

12 section) for a cost reporting period begin13 ning during such year. 

14 (vi) A Medicaid provider (as defined 

15 in paragraph (2) of section 1903(t) of such 

16 Act (42 U.S.C. 1396b(t))) eligible for pay17 ments described in paragraph (1) of such 

18 section for such year. 

19 (B) HEALTH INFORMATION EXCHANGE

20 ENTITIES.—Individuals and entities (other than 

21 States or State designated entities) which dur22 ing such year are health information exchange 

23 contractors (consisting of technology providers), 

24 health information exchange participants (con25 sisting of organizations providing supportive 


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1 technology to a health information exchange), 

2 and other users of health information exchanges 

3 (consisting of other entities that may be ex4 changing clinical or administrative data). Man5 ufacturers of electronic health record (EHR) 

6 software and other health information tech7 nologies who participate in the reporting of ad8 verse events or who otherwise contribute rel9 evant patient safety work product under sub10 section (b)(1). 

11 (C) CERTAIN OTHER EHR USERS.—A 

12 health care professional who, during such 

13 year— 

14 (i) is a user of such certified EHR 

15 technology; 

16 (ii) is not eligible for incentive pay17 ments based on meaningful use of such 

18 technology under title XVIII or XIX of the 

19 Social Security Act solely because the pro20 fessional is not— 

21 (I) an eligible professional (as de22 fined in paragraph (5)(C) of section 

23 1848(o) of such Act (42 U.S.C. 

24 1395w–4(o))); 


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1 (II) an eligible professional de2 scribed in paragraph (2) of section 

3 1853(l) of such Act (42 U.S.C. 

4 1395w–23(l)) or, as applicable, an ad5 ditional eligible professional described 

6 in paragraph (9) of such section, with 

7 respect to a qualifying MA organiza8 tion (as defined in paragraph (5) of 

9 such section); 

10 (III) an eligible hospital de11 scribed in paragraph (2) of section 

12 1853(m) of such Act (42 U.S.C. 

13 1395w–23(m)) or, as applicable, an 

14 additional eligible hospital described 

15 in paragraph (7) of such section, with 

16 respect to such a qualifying MA orga17 nization; 

18 (IV) an eligible hospital (as de19 fined in paragraph (6)(B) of section 

20 1886(n) of such Act (42 U.S.C. 

21 1395ww(n))); 

22 (V) a critical access hospital; 

23 (VI) a Medicaid provider (as de24 fined in paragraph (2) of section 


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1 1903(t) of such Act (42 U.S.C. 

2 1396b(t))); 

3 (VII) an additional eligible pro4 fessional (as defined in paragraph 

5 (5)(D) of section 1848(o) of such Act 

6 (42 U.S.C. 1395w–4(o))); or 

7 (VIII) an additional eligible hos8 pital (as defined in paragraph (6)(C) 

9 of section 1886(n) of such Act (42 

10 U.S.C. 1395ww(n))); and 

11 (iii) attests, to the satisfaction of the 

12 Secretary of Health and Human Services, 

13 that but for the reason described in clause 

14 (ii), the professional would otherwise sat15 isfy criteria to be eligible for such incentive 

16 payments during such year. 

17 (b) IMPROVING PATIENT SAFETY THROUGH ERROR

18 REPORTING AND REMEDIATION, AND CLARIFICATION OF

19 AUTHORITY.— 

20 (1) QUARTERLY REPORTING BY PATIENT SAFE21 TY ORGANIZATIONS.—Paragraph (1) of section 

22 924(b) of the Public Health Service Act (42 U.S.C. 

23 299b–24) is amended by adding at the end the fol24 lowing: 


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1 ‘‘(H) Not less than quarterly each year, 

2 the entity shall submit to the Office of the Na3 tional Coordinator findings that— 

4 ‘‘(i) exclude any individually identifi5 able information; 

6 ‘‘(ii) are based on information sub7 mitted to the entity by covered entities (as 

8 defined in section 4(a)(1) of the Behavioral 

9 Health Information Technology Coordina10 tion Act of 2013); 

11 ‘‘(iii) describe the number and nature 

12 of EHR-related adverse events with respect 

13 to certified EHR technology (as such 

14 terms are defined in section 4(e) of such 

15 Act) so reported; and 

16 ‘‘(iv) for each such EHR-related ad17 verse event, identify the type event and the 

18 type electronic health record involved.’’. 

19 (2) APPLICATION OF SAFETY ORGANIZATION

20 PRIVILEGE AND CONFIDENTIALITY PROTECTIONS.— 

21 In the case of a covered entity that submits to a pa22 tient safety organization information on an EHR-re23 lated adverse event with respect to certified EHR 

24 technology, and in the case of the collection and 

25 maintenance of such information by a patient safety 


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1 organization, the provisions of section 922 of the 

2 Public Health Service Act (42 U.S.C. 299b–22) 

3 shall apply to such information and to the organiza4 tion and the entity in the same manner such provi5 sions apply to patient safety work product and a pa6 tient safety organization and provider under part C 

7 of title IX of such Act (42 U.S.C. 299b–2 et seq.). 

8 (3) CLARIFICATION OF AUTHORITY.—Certified 

9 EHR technology shall not be considered to be a de10 vice for purposes of the Federal Food, Drug, and 

11 Cosmetic Act (21 U.S.C. 301 et seq.). 

12 (c) RULES RELATING TO E-DISCOVERY.—In any 

13 health care lawsuit against a covered entity that is related 

14 to an EHR-related adverse event, with respect to certified 

15 EHR technology used or provided by the covered entity, 

16 electronic discovery shall be limited to— 

17 (1) information that is related to such EHR-re18 lated adverse event; and 

19 (2) information from the period in which such 

20 EHR-related adverse event occurred. 

21 (d) LEGAL PROTECTIONS FOR COVERED ENTI22 TIES.— 

23 (1) GENERAL.—For a covered entity described 

24 in subsection (a), the following protections apply: 


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1 (A) ENCOURAGING SPEEDY RESOLUTION

2 OF CLAIMS.— 

3 (i) GENERAL.—A claimant may not 

4 commence a health care lawsuit against a 

5 covered entity on any date that is 3 years 

6 after the date of manifestation of injury or 

7 1 year after the claimant discovers, or 

8 through the use of reasonable diligence 

9 should have discovered, the injury, which10 ever occurs first. This limitation shall be 

11 tolled to the extent that the claimant is 

12 able to prove— 

13 (I) fraud; 

14 (II) intentional concealment; or 

15 (III) the presence of a foreign 

16 body, which has no therapeutic or di17 agnostic purpose or effect, in the per18 son of the injured person. 

19 (ii) TREATMENT OF A MINOR.—A 

20 health care lawsuit by or on behalf of a 

21 claimant under the age of 17 years at the 

22 time the injury was suffered may not be 

23 commenced after the date that is 3 years 

24 after the date of the alleged manifestation 

25 of injury except that actions by a claimant 


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1 under the age of 6 years may not be com2 menced after the date that is 3 years after 

3 the date of manifestation of injury or prior 

4 to the claimant’s 8th birthday, whichever 

5 provides a longer period. This limitation 

6 shall be tolled for claimants under the age 

7 of 17 years for any period during which a 

8 parent or guardian and a health care pro9 vider or health care organization have com10 mitted fraud or collusion in the failure to 

11 bring an action on behalf of the claimant. 

12 (B) EQUITABLE ASSIGNMENT OF RESPON13 SIBILITY.—In any health care lawsuit against a 

14 covered entity— 

15 (i) each party to the lawsuit other 

16 than the claimant that is such a covered 

17 entity shall be liable for that party’s sev18 eral share of any damages only and not for 

19 the share of any other person and such 

20 several share shall be in direct proportion 

21 to that party’s proportion of responsibility 

22 for the injury, as determined under clause 

23 (iii); 

24 (ii) whenever a judgment of liability is 

25 rendered as to any such party, a separate 


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1 judgment shall be rendered against each 

2 such party for the amount allocated to 

3 such party; and 

4 (iii) for purposes of this subpara5 graph, the trier of fact shall determine the 

6 proportion of responsibility of each such 

7 party for the claimant’s harm. 

8 (C) SUBSEQUENT REMEDIAL MEASURES.— 

9 Evidence of subsequent remedial measures to 

10 an EHR-related adverse event with respect to 

11 certified EHR technology used or provided by 

12 the covered entity (including changes to the cer13 tified EHR system, additional training require14 ments, or changes to standard operating proce15 dures) by a covered entity shall not be admis16 sible in health care lawsuits. 

17 (D) INCREASED BURDEN OF PROOF PRO18 TECTION FOR COVERED ENTITIES.—Punitive 

19 damages may, if otherwise permitted by appli20 cable State or Federal law, be awarded against 

21 any covered entity in a health care lawsuit only 

22 if it is proven by clear and convincing evidence 

23 that such entity acted with reckless disregard 

24 for the health or safety of the claimant. In any 

25 such health care lawsuit where no judgment for 


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1 compensatory damages is rendered against such 

2 entity, no punitive damages may be awarded 

3 with respect to the claim in such lawsuit. 

4 (E) PROTECTION FROM LIBEL OR SLAN5 DER.—Covered entities and employees, agents 

6 and representatives of covered entities are im7 mune from civil action for libel or slander aris8 ing from information or entries made in cer9 tified EHR technology and for the transfer of 

10 such information to another eligible provider, 

11 hospital or health information exchange, if the 

12 information, transfer of information, or entries 

13 were made in good faith and without malice. 

14 (e) DEFINITIONS.—In this section: 

15 (1) CLAIMANT.—The term ‘‘claimant’’ means 

16 any person who brings a health care lawsuit, includ17 ing a person who asserts or claims a right to legal 

18 or equitable contribution, indemnity, or subrogation, 

19 arising out of a health care liability claim or action, 

20 and any person on whose behalf such a claim is as21 serted or such an action is brought, whether de22 ceased, incompetent, or a minor. 

23 (2) COMPENSATORY DAMAGES.—The term 

24 ‘‘compensatory damages’’ means objectively 

25 verifiable monetary losses incurred as a result of the 


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1 provisions of, use of, or payment for (or failure to 

2 provide, use, or pay for) health care services or med3 ical products, such as past and future medical ex4 penses, loss of past and future earnings, cost of ob5 taining domestic services, loss of employment, and 

6 loss of business or employment opportunities, dam7 ages for physical and emotional pain, suffering, in8 convenience, physical impairment, mental anguish, 

9 disfigurement, loss of enjoyment in life, loss of soci10 ety and companionship, loss of consortium (other 

11 than loss of domestic service), hedonic damages, in12 jury to reputation, and all other nonpecuniary losses 

13 of any kind or nature. Such term includes economic 

14 damages and noneconomic damages, as such terms 

15 are defined in this subsection. 

16 (3) ECONOMIC DAMAGES.—The term ‘‘economic 

17 damages’’ means objectively verifiable monetary 

18 losses incurred as a result of the provisions of, use 

19 of, or payment for (or failure to provide, use, or pay 

20 for) health care services or medical products, such as 

21 past and future medical expenses, loss of past and 

22 future earnings, cost of obtaining domestic services, 

23 loss of employment, and loss of business or employ24 ment opportunities. 


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1 (4) CERTIFIED EHR TECHNOLOGY.—The term 

2 ‘‘certified EHR technology’’ has the meaning given 

3 such term in section 1848(o)(4) of the Social Secu4 rity Act (42 U.S.C. 1395w–4(o)(4)). 

5 (5) EHR-RELATED ADVERSE EVENT.—The 

6 term ‘‘EHR-related adverse event’’ means, with re7 spect to a provider, a defect, malfunction, or error 

8 in the certified health information technology or 

9 electronic health record used by the provider, or in 

10 the input or output of data maintained through such 

11 technology or record, that results or could reason12 ably result in harm to a patient. 

13 (6) HEALTH CARE LAWSUIT.—The term 

14 ‘‘health care lawsuit’’ means any health care liability 

15 claim concerning the provision of health care items 

16 or services or any medical product affecting inter17 state commerce, or any health care liability action 

18 concerning the provision of health care items or 

19 services or any medical product affecting interstate 

20 commerce, brought in a State or Federal court or 

21 pursuant to an alternative dispute resolution system, 

22 against a health care provider, a health care organi23 zation, or the manufacturer, distributor, supplier, 

24 marketer, promoter, or seller of a medical product, 

25 regardless of the theory of liability on which the 


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1 claim is based, or the number of claimants, plain2 tiffs, defendants, or other parties, or the number of 

3 claims or causes of action, in which the claimant al4 leges a health care liability claim. Such term does 

5 not include a claim or action which is based on 

6 criminal liability; which seeks civil fines or penalties 

7 paid to Federal, State, or local government; or which 

8 is grounded in antitrust. 

9 (7) HEALTH CARE LIABILITY ACTION.—The 

10 term ‘‘health care liability action’’ means a civil ac11 tion brought in a State or Federal court or pursuant 

12 to an alternative dispute resolution system, against 

13 a health care provider, a health care organization, or 

14 the manufacturer, distributor, supplier, marketer, 

15 promoter, or seller of a medical product, regardless 

16 of the theory of liability on which the claim is based, 

17 or the number of plaintiffs, defendants, or other par18 ties, or the number of causes of action, in which the 

19 claimant alleges a health care liability claim. 

20 (8) HEALTH CARE LIABILITY CLAIM.—The 

21 term ‘‘health care liability claim’’ means a demand 

22 by any person, whether or not pursuant to alter23 native dispute resolution, against a health care pro24 vider, health care organization, or the manufacturer, 

25 distributor, supplier, marketer, promoter, or seller of 


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1 a medical product, including third-party claims, 

2 cross-claims, counter-claims, or contribution claims, 

3 which are based upon the provision of, use of, or 

4 payment for (or the failure to provide, use or pay 

5 for) health care services or medical products, regard6 less of the theory of liability on which the claim is 

7 based, or the number of plaintiffs, defendants, or 

8 other parties, or the number of causes of action. 

9 (9) HEALTH CARE ORGANIZATION.—The term 

10 ‘‘health care organization’’ means any person or en11 tity which is obligated to provide or pay for health 

12 benefits under any health plan, including any person 

13 or entity acting under a contract or arrangement 

14 with a health care organization to provide or admin15 ister any health benefit. 

16 (10) HEALTH CARE PROVIDER.—The term 

17 ‘‘health care provider’’ means any person or entity 

18 required by State or Federal laws or regulations to 

19 be licensed, registered, or certified to provide health 

20 care services, and being either so licensed, reg21 istered, or certified, or exempted from such require22 ment by other statute or regulation. 

23 (11) HEALTH CARE ITEMS OR SERVICES.—The 

24 term ‘‘health care items or services’’ means any 

25 items or services provided by a health care organizaVerDate Mar 15 2010 21:12 Nov 13, 2013 Jkt 039200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S1685.IS S1685

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1 tion, provider, or by any individual working under 

2 the supervision of a health care provider, that relates 

3 to the diagnosis, prevention, or treatment of any 

4 human disease or impairment, or the assessment or 

5 care of the health of human beings. 

6 (12) MALICIOUS INTENT TO INJURE.—The 

7 term ‘‘malicious intent to injure’’ means inten8 tionally causing or attempting to cause physical in9 jury other than providing health care items or serv10 ices. 

11 (13) MEDICAL PRODUCT.—The term ‘‘medical 

12 product’’ means a drug, device, or biological product 

13 intended for humans, and the terms ‘‘drug’’, ‘‘de14 vice’’, and ‘‘biological product’’ have the meanings 

15 given such terms in sections 201(g)(1) and 201(h) 

16 of the Federal Food, Drug, and Cosmetic Act (21 

17 U.S.C. 321(g)(1) and (h)) and section 351(a) of the 

18 Public Health Service Act (42 U.S.C. 262(a)), re19 spectively, including any component or raw material 

20 used therein, but excluding health care services. 

21 (14) NONECONOMIC DAMAGES.—The term 

22 ‘‘noneconomic damages’’ means damages for phys23 ical impairment, mental anguish, disfigurement, loss 

24 of enjoyment of life, loss of society and companion25 ship, loss of consortium (other than loss of domestic 


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1 service), hedonic damages, injury to reputation, and 

2 all other nonpecuniary losses of any kind of nature. 

3 (15) PATIENT SAFETY ORGANIZATION.—The 

4 term ‘‘patient safety organization’’ has the meaning 

5 given to such term in section 921 of the Public 

6 Health Service Act (42 U.S.C. 299b–21). 

7 (16) PUNITIVE DAMAGES.—The term ‘‘punitive 

8 damages’’ means damages awarded, for the purpose 

9 of punishment or deterrence, and not solely for com10 pensatory purposes, against a health care provider, 

11 health care organization, or a manufacturer, dis12 tributor, or supplier of a medical product. Punitive 

13 damages are neither economic nor economic dam14 ages. 

15 (17) STATE.—The term ‘‘State’’ means each of 

16 the several States, the District of Columbia, the 

17 Commonwealth of Puerto Rico, the Virgin Islands, 

18 Guam, American Samoa, the Northern Mariana Is19 lands, the Trust Territory of the Pacific Islands, and 

20 any other territory or possession of the United 

21 States, or any political subdivision thereof. 

Æ 


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