I 

113TH CONGRESS 

1ST SESSION H. R. 2957 

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 HOUSE OF REPRESENTATIVES 

AUGUST 1, 2013 

Mr. MURPHY of Pennsylvania (for himself, Mr. BARBER, Mr. ROE of Tennessee, Mr. BURGESS, Mr. CASSIDY, Mr. DENT, Mr. TIBERI, Mrs. 

BLACKBURN, Mr. GUTHRIE, Mr. BUCSHON, and Mr. MARINO) introduced 

the following bill; which was referred to the Committee on Energy and 

Commerce, and in addition to the Committee on Ways and Means, for 

a period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 

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, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Behavioral Health In3 formation Technology Act of 2013’’. 

4 SEC. 2. EXTENSION OF HEALTH INFORMATION TECH5 NOLOGY ASSISTANCE FOR BEHAVIORAL AND 

6 MENTAL HEALTH AND SUBSTANCE ABUSE. 

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

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

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

10 health professionals (as defined in section 

11 331(a)(3)(E)(i)), a substance abuse professional, a psy12 chiatric hospital (as defined in section 1861(f) of the So13 cial Security Act), a community mental health center 

14 meeting the criteria specified in section 1913(c), a residen15 tial or outpatient mental health or substance abuse treat16 ment facility,’’. 

17 SEC. 3. EXTENSION OF ELIGIBILITY FOR MEDICARE AND 

18 MEDICAID HEALTH INFORMATION TECH19 NOLOGY IMPLEMENTATION ASSISTANCE. 

20 (a) PAYMENT INCENTIVES FOR ELIGIBLE PROFES21 SIONALS UNDER MEDICARE.—Section 1848 of the Social 

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

23 (1) in subsection (a)(7)— 

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

25 end the following new clause: 


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1 ‘‘(iv) ADDITIONAL ELIGIBLE PROFES2 SIONAL.—The term ‘additional eligible pro3 fessional’ means a clinical psychologist pro4 viding qualified psychologist services (as 

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

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

7 subparagraph: 

8 ‘‘(F) APPLICATION TO ADDITIONAL ELIGI9 BLE PROFESSIONALS.—The Secretary shall 

10 apply the provisions of this paragraph with re11 spect to an additional eligible professional in 

12 the same manner as such provisions apply to an 

13 eligible professional, except in applying sub14 paragraph (A)— 

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

16 2015 shall be deemed a reference to 2019; 

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

18 2015, 2016, and 2017 shall be deemed ref19 erences to 2019, 2020, and 2021, respec20 tively; and 

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

22 2018 shall be deemed a reference to 

23 2022.’’; and 

24 (2) in subsection (o)— 


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

2 the following new subparagraph: 

3 ‘‘(D) ADDITIONAL ELIGIBLE PROFES4 SIONAL.—The term ‘additional eligible profes5 sional’ means a clinical psychologist providing 

6 qualified psychologist services (as defined in 

7 section 1861(ii)).’’; and 

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

9 paragraph: 

10 ‘‘(6) APPLICATION TO ADDITIONAL ELIGIBLE

11 PROFESSIONALS.—The Secretary shall apply the 

12 provisions of this subsection with respect to an addi13 tional eligible professional in the same manner as 

14 such provisions apply to an eligible professional, ex15 cept in applying— 

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

17 2016 shall be deemed a reference to 2020; 

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

19 to 2011 and 2012 shall be deemed references to 

20 2015 and 2016, respectively; 

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

22 to 2013 shall be deemed references to 2017; 

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

24 to 2014 shall be deemed references to 2018; 

25 and 


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

2 2011 shall be deemed a reference to 2015.’’. 

3 (b) ELIGIBLE HOSPITALS.—Section 1886 of the So4 cial Security Act (42 U.S.C. 1395ww) is amended— 

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

6 end the following new subclause: 

7 ‘‘(V) The Secretary shall apply 

8 the provisions of this subsection with 

9 respect to an additional eligible hos10 pital (as defined in subsection 

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

12 such provisions apply to an eligible 

13 hospital, except in applying— 

14 ‘‘(aa) subclause (I), the ref15 erences to 2015, 2016, and 2017 

16 shall be deemed references to 

17 2019, 2020, and 2021, respec18 tively; and 

19 ‘‘(bb) subclause (III), the 

20 reference to 2015 shall be 

21 deemed a reference to 2019.’’; 

22 and 

23 (2) in subsection (n)— 

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

25 the following new subparagraph: 


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1 ‘‘(C) ADDITIONAL ELIGIBLE HOSPITAL.— 

2 The term ‘additional eligible hospital’ means an 

3 inpatient hospital that is a psychiatric hospital 

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

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

6 paragraph: 

7 ‘‘(7) APPLICATION TO ADDITIONAL ELIGIBLE

8 HOSPITALS.—The Secretary shall apply the provi9 sions of this subsection with respect to an additional 

10 eligible hospital in the same manner as such provi11 sions apply to an eligible hospital, except in apply12 ing— 

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

14 to 2013 and 2015 shall be deemed references to 

15 2017 and 2019, respectively; and 

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

17 2011 shall be deemed a reference to 2015.’’. 

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

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

20 (1) in paragraph (2)(B)— 

21 (A) in clause (i), by striking ‘‘, or’’ and in22 serting a semicolon; 

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

24 and inserting a semicolon; and 


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

2 new clauses: 

3 ‘‘(iii) a public hospital that is prin4 cipally a psychiatric hospital (as defined in 

5 section 1861(f)); 

6 ‘‘(iv) a private hospital that is prin7 cipally a psychiatric hospital (as defined in 

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

9 percent of its patient volume (as estimated 

10 in accordance with a methodology estab11 lished by the Secretary) attributable to in12 dividuals receiving medical assistance 

13 under this title; 

14 ‘‘(v) a community mental health cen15 ter meeting the criteria specified in section 

16 1913(c) of the Public Health Service Act; 

17 or 

18 ‘‘(vi) a residential or outpatient men19 tal health or substance abuse treatment fa20 cility that— 

21 ‘‘(I) is accredited by the Joint 

22 Commission on Accreditation of 

23 Healthcare Organizations, the Com24 mission on Accreditation of Rehabili25 tation Facilities, the Council on AcVerDate Mar 15 2010 23:32 Aug 07, 2013 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2957.IH H2957

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1 creditation, or any other national ac2 crediting agency recognized by the 

3 Secretary; and 

4 ‘‘(II) has at least 10 percent of 

5 its patient volume (as estimated in ac6 cordance with a methodology estab7 lished by the Secretary) attributable 

8 to individuals receiving medical assist9 ance under this title.’’; and 

10 (2) in paragraph (3)(B)— 

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

12 the semicolon; 

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

14 and inserting ‘‘; and’’; and 

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

16 clause: 

17 ‘‘(vi) clinical psychologist providing 

18 qualified psychologist services (as defined 

19 in section 1861(ii)), if such clinical psy20 chologist is practicing in an outpatient 

21 clinic that— 

22 ‘‘(I) is led by a clinical psycholo23 gist; and 

24 ‘‘(II) is not otherwise receiving 

25 payment under paragraph (1) as a 


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1 Medicaid provider described in para2 graph (2)(B).’’. 

3 (d) MEDICARE ADVANTAGE ORGANIZATIONS.—Sec4 tion 1853 of the Social Security Act (42 U.S.C. 1395w– 

5 23) is amended— 

6 (1) in subsection (l)— 

7 (A) in paragraph (1)— 

8 (i) by inserting ‘‘or additional eligible 

9 professionals (as described in paragraph 

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

11 (ii) by inserting ‘‘and additional eligi12 ble professionals’’ before ‘‘under such sec13 tions’’; 

14 (B) in paragraph (3)(B)— 

15 (i) in clause (i) in the matter pre16 ceding subclause (I), by inserting ‘‘or an 

17 additional eligible professional described in 

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

19 (ii) in clause (ii)— 

20 (I) in the matter preceding sub21 clause (I), by inserting ‘‘or an addi22 tional eligible professional described in 

23 paragraph (9)’’ after ‘‘paragraph 

24 (2)’’; and 


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

2 ‘‘or an additional eligible professional, 

3 respectively,’’ after ‘‘eligible profes4 sional’’; 

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

6 additional eligible professionals’’ after ‘‘all eligi7 ble professionals’’; 

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

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

10 that a qualifying MA organization attests that 

11 not all additional eligible professionals of the 

12 organization are meaningful EHR users with 

13 respect to an applicable year, the Secretary 

14 shall apply the payment adjustment under this 

15 paragraph based on the proportion of all such 

16 additional eligible professionals of the organiza17 tion that are not meaningful EHR users for 

18 such year.’’; 

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

20 ‘‘and, as applicable, each additional eligible pro21 fessional described in paragraph (9)’’ after 

22 ‘‘paragraph (2)’’; 

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

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1 pital described in paragraph (9)’’ after ‘‘sub2 section (m)(1)’’; 

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

4 ‘‘and, as applicable, additional eligible profes5 sionals’’ after ‘‘eligible professionals’’; 

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

7 ‘‘and, as applicable, additional eligible profes8 sionals’’ after ‘‘eligible professionals’’; 

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

10 additional eligible professionals described in 

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

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

13 paragraph: 

14 ‘‘(9) ADDITIONAL ELIGIBLE PROFESSIONAL DE15 SCRIBED.—With respect to a qualifying MA organi16 zation, an additional eligible professional described 

17 in this paragraph is an additional eligible profes18 sional (as defined for purposes of section 1848(o)) 

19 who— 

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

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

22 an entity that through contract with the organi23 zation furnishes at least 80 percent of the enti24 ty’s Medicare patient care services to enrollees 

25 of such organization; and 


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

2 professional services of the additional eligible 

3 professional covered under this title to enrollees 

4 of the organization; and 

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

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

7 (2) in subsection (m)— 

8 (A) in paragraph (1)— 

9 (i) by inserting ‘‘or additional eligible 

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

11 after ‘‘paragraph (2)’’; and 

12 (ii) by inserting ‘‘and additional eligi13 ble hospitals’’ before ‘‘under such sec14 tions’’; 

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

16 ‘‘or additional eligible hospital’’ after ‘‘eligible 

17 hospital’’; 

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

19 ‘‘or an additional eligible hospital’’ after ‘‘eligi20 ble hospital’’ in each place it occurs; 

21 (D) in paragraph (3)(B)— 

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

23 additional eligible hospital described in 

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

25 (ii) in clause (ii)— 


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1 (I) in the matter preceding sub2 clause (I), by inserting ‘‘or an addi3 tional eligible hospital described in 

4 paragraph (7)’’ after ‘‘paragraph 

5 (2)’’; and 

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

7 ‘‘or an additional eligible hospital, re8 spectively,’’ after ‘‘eligible hospital’’; 

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

10 one or more additional eligible hospitals (as de11 fined in section 1886(n)), as appropriate,’’ after 

12 ‘‘section 1886(n)(6)(A))’’; 

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

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

15 that a qualifying MA organization attests that 

16 not all additional eligible hospitals of the orga17 nization are meaningful EHR users with re18 spect to an applicable period, the Secretary 

19 shall apply the payment adjustment under this 

20 paragraph based on the methodology specified 

21 by the Secretary, taking into account the pro22 portion of such additional eligible hospitals, or 

23 discharges from such hospitals, that are not 

24 meaningful EHR users for such period.’’; 


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

2 ‘‘and, as applicable, each additional eligible hos3 pital described in paragraph (7)’’ after ‘‘para4 graph (2)’’; 

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

6 ‘‘and additional eligible hospitals, as applica7 ble,’’ after ‘‘eligible hospitals’’; 

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

9 additional eligible hospitals described in para10 graph (7)’’ after ‘‘paragraph (2)’’; and 

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

12 paragraph: 

13 ‘‘(7) ADDITIONAL ELIGIBLE HOSPITAL DE14 SCRIBED.—With respect to a qualifying MA organi15 zation, an additional eligible hospital described in 

16 this paragraph is an additional eligible hospital (as 

17 defined in section 1886(n)(6)(C)) that is under com18 mon corporate governance with such organization 

19 and serves individuals enrolled under an MA plan of20 fered by such organization.’’. 

21 SEC. 4. PROVIDING PROTECTIONS FOR CERTAIN PRO22 VIDERS, VENDORS, AND USERS OF CERTIFIED 

23 EHR TECHNOLOGY. 

24 (a) COVERED ENTITIES.— 


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

2 section, a covered entity means, with respect to cer3 tified EHR technology (as defined in section 

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

5 1395w–4(o)(4))) and a year, any of the following: 

6 (A) MEANINGFUL EHR USERS.— 

7 (i) An eligible professional (as defined 

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

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

10 4(o))) determined to be a meaningful EHR 

11 user under paragraph (2) of such section 

12 for the EHR reporting period (as defined 

13 in paragraph (5)(B) of such section) dur14 ing such year, or an additional eligible pro15 fessional (as defined in paragraph (5)(D) 

16 of such section) determined to be a mean17 ingful EHR user pursuant to paragraph 

18 (6) of such section for the EHR reporting 

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

20 such section) during such year. 

21 (ii) In the case of a qualifying MA or22 ganization (as defined in paragraph (5) of 

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

24 1395w–23(l))), an eligible professional de25 scribed in paragraph (2) of such section or, 


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1 as applicable, an additional eligible profes2 sional described in paragraph (9) of such 

3 section of the organization who the organi4 zation attests under paragraph (6) of such 

5 section to be a meaningful EHR user for 

6 such year. 

7 (iii) In the case of a qualifying MA 

8 organization (as so defined), an eligible 

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

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

11 as applicable, an additional eligible hospital 

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

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

14 organization which attests under section 

15 1853(l)(6) of such Act (42 U.S.C. 1395w– 

16 23(l)(6)) to be a meaningful EHR user for 

17 the applicable period with respect to such 

18 year. 

19 (iv) An eligible hospital (as defined in 

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

21 such Act (42 U.S.C. 1395ww(n)) deter22 mined to be a meaningful EHR user under 

23 paragraph (3) of such section for the EHR 

24 reporting period (as defined in paragraph 

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


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1 such year, or an additional eligible hospital 

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

3 section) determined to be a meaningful 

4 EHR user under paragraph (7) of such 

5 section for the EHR reporting period (as 

6 defined in paragraph (6)(A) of such sec7 tion) with respect to such year. 

8 (v) A critical access hospital deter9 mined pursuant to section 1814(l)(3) of 

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

11 meaningful EHR user (as would be deter12 mined under paragraph (3) of section 

13 1886(n) of such Act (42 U.S.C. 

14 1395ww(n))) for an EHR reporting period 

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

16 section) for a cost reporting period begin17 ning during such year. 

18 (vi) A Medicaid provider (as defined 

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

20 Act (42 U.S.C. 1396b(t))) eligible for pay21 ments described in paragraph (1) of such 

22 section for such year. 

23 (B) HEALTH INFORMATION EXCHANGE

24 ENTITIES.—Individuals and entities (other than 

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1 ing such year are health information exchange 

2 contractors (consisting of technology providers), 

3 health information exchange participants (con4 sisting of organizations providing supportive 

5 technology to a health information exchange), 

6 and other users of health information exchanges 

7 (consisting of other entities that may be ex8 changing clinical or administrative data). Man9 ufacturers of electronic health record (EHR) 

10 software and other health information tech11 nologies who participate in the reporting of ad12 verse events or who otherwise contribute rel13 evant patient safety work product under sub14 section (b)(1). 

15 (C) CERTAIN OTHER EHR USERS.—A 

16 health care professional who, during such 

17 year— 

18 (i) is a user of such certified EHR 

19 technology; 

20 (ii) is not eligible for incentive pay21 ments based on meaningful use of such 

22 technology under title XVIII or XIX of the 

23 Social Security Act solely because the pro24 fessional is not— 


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1 (I) an eligible professional (as de2 fined in paragraph (5)(C) of section 

3 1848(o) of such Act (42 U.S.C. 

4 1395w–4(o))); 

5 (II) an eligible professional de6 scribed in paragraph (2) of section 

7 1853(l) of such Act (42 U.S.C. 

8 1395w–23(l)) or, as applicable, an ad9 ditional eligible professional described 

10 in paragraph (9) of such section, with 

11 respect to a qualifying MA organiza12 tion (as defined in paragraph (5) of 

13 such section); 

14 (III) an eligible hospital de15 scribed in paragraph (2) of section 

16 1853(m) of such Act (42 U.S.C. 

17 1395w–23(m)) or, as applicable, an 

18 additional eligible hospital described 

19 in paragraph (7) of such section, with 

20 respect to such a qualifying MA orga21 nization; 

22 (IV) an eligible hospital (as de23 fined in paragraph (6)(B) of section 

24 1886(n) of such Act (42 U.S.C. 

25 1395ww(n))); 


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1 (V) a critical access hospital; 

2 (VI) a Medicaid provider (as de3 fined in paragraph (2) of section 

4 1903(t) of such Act (42 U.S.C. 

5 1396b(t))); 

6 (VII) an additional eligible pro7 fessional (as defined in paragraph 

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

9 (42 U.S.C. 1395w–4(o))); or 

10 (VIII) an additional eligible hos11 pital (as defined in paragraph (6)(C) 

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

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

14 (iii) attests, to the satisfaction of the 

15 Secretary of Health and Human Services, 

16 that but for the reason described in clause 

17 (ii), the professional would otherwise sat18 isfy criteria to be eligible for such incentive 

19 payments during such year. 

20 (b) IMPROVING PATIENT SAFETY THROUGH ERROR

21 REPORTING AND REMEDIATION, AND CLARIFICATION OF

22 AUTHORITY.— 

23 (1) QUARTERLY REPORTING BY PATIENT SAFE24 TY ORGANIZATIONS.—Paragraph (1) of section 

25 924(b) of the Public Health Service Act (42 U.S.C. 


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1 299b–24) is amended by adding at the end the fol2 lowing: 

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

4 the entity shall submit to the Office of the Na5 tional Coordinator findings that— 

6 ‘‘(i) exclude any individually identifi7 able information; 

8 ‘‘(ii) are based on information sub9 mitted to the entity by covered entities (as 

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

11 Health Information Technology Act of 

12 2013); 

13 ‘‘(iii) describe the number and nature 

14 of EHR-related adverse events with respect 

15 to certified EHR technology (as such 

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

17 Act) so reported; and 

18 ‘‘(iv) for each such EHR-related ad19 verse event, identify the type event and the 

20 type electronic health record involved.’’. 

21 (2) APPLICATION OF SAFETY ORGANIZATION

22 PRIVILEGE AND CONFIDENTIALITY PROTECTIONS.— 

23 In the case of a covered entity that submits to a pa24 tient safety organization information on an EHR-re25 lated adverse event with respect to certified EHR 


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1 technology, and in the case of the collection and 

2 maintenance of such information by a patient safety 

3 organization, the provisions of section 922 of the 

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

5 shall apply to such information and to the organiza6 tion and the entity in the same manner such provi7 sions apply to patient safety work product and a pa8 tient safety organization and provider under part C 

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

10 (3) CLARIFICATION OF AUTHORITY.—Certified 

11 EHR technology shall not be considered to be a de12 vice for purposes of the Federal Food, Drug, and 

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

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

15 health care lawsuit against a covered entity that is related 

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

17 EHR technology used or provided by the covered entity, 

18 electronic discovery shall be limited to— 

19 (1) information that is related to such EHR-re20 lated adverse event; and 

21 (2) information from the period in which such 

22 EHR-related adverse event occurred. 

23 (d) LEGAL PROTECTIONS FOR COVERED ENTI24 TIES.— 


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

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

3 (A) ENCOURAGING SPEEDY RESOLUTION

4 OF CLAIMS.— 

5 (i) GENERAL.—A claimant may not 

6 commence a health care lawsuit against a 

7 covered entity on any date that is 3 years 

8 after the date of manifestation of injury or 

9 1 year after the claimant discovers, or 

10 through the use of reasonable diligence 

11 should have discovered, the injury, which12 ever occurs first. This limitation shall be 

13 tolled to the extent that the claimant is 

14 able to prove— 

15 (I) fraud; 

16 (II) intentional concealment; or 

17 (III) the presence of a foreign 

18 body, which has no therapeutic or di19 agnostic purpose or effect, in the per20 son of the injured person. 

21 (ii) TREATMENT OF A MINOR.—A 

22 health care lawsuit by or on behalf of a 

23 claimant under the age of 17 years at the 

24 time the injury was suffered may not be 

25 commenced after the date that is 3 years 


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1 after the date of the alleged manifestation 

2 of injury except that actions by a claimant 

3 under the age of 6 years may not be com4 menced after the date that is 3 years after 

5 the date of manifestation of injury or prior 

6 to the claimant’s 8th birthday, whichever 

7 provides a longer period. This limitation 

8 shall be tolled for claimants under the age 

9 of 17 years for any period during which a 

10 parent or guardian and a health care pro11 vider or health care organization have com12 mitted fraud or collusion in the failure to 

13 bring an action on behalf of the claimant. 

14 (B) EQUITABLE ASSIGNMENT OF RESPON15 SIBILITY.—In any health care lawsuit against a 

16 covered entity— 

17 (i) each party to the lawsuit other 

18 than the claimant that is such a covered 

19 entity shall be liable for that party’s sev20 eral share of any damages only and not for 

21 the share of any other person and such 

22 several share shall be in direct proportion 

23 to that party’s proportion of responsibility 

24 for the injury, as determined under clause 

25 (iii); 


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1 (ii) whenever a judgment of liability is 

2 rendered as to any such party, a separate 

3 judgment shall be rendered against each 

4 such party for the amount allocated to 

5 such party; and 

6 (iii) for purposes of this subpara7 graph, the trier of fact shall determine the 

8 proportion of responsibility of each such 

9 party for the claimant’s harm. 

10 (C) SUBSEQUENT REMEDIAL MEASURES.— 

11 Evidence of subsequent remedial measures to 

12 an EHR-related adverse event with respect to 

13 certified EHR technology used or provided by 

14 the covered entity (including changes to the cer15 tified EHR system, additional training require16 ments, or changes to standard operating proce17 dures) by a covered entity shall not be admis18 sible in health care lawsuits. 

19 (D) INCREASED BURDEN OF PROOF PRO20 TECTION FOR COVERED ENTITIES.—Punitive 

21 damages may, if otherwise permitted by appli22 cable State or Federal law, be awarded against 

23 any covered entity in a health care lawsuit only 

24 if it is proven by clear and convincing evidence 

25 that such entity acted with reckless disregard 


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

2 such health care lawsuit where no judgment for 

3 compensatory damages is rendered against such 

4 entity, no punitive damages may be awarded 

5 with respect to the claim in such lawsuit. 

6 (E) PROTECTION FROM LIBEL OR SLAN7 DER.—Covered entities and employees, agents 

8 and representatives of covered entities are im9 mune from civil action for libel or slander aris10 ing from information or entries made in cer11 tified EHR technology and for the transfer of 

12 such information to another eligible provider, 

13 hospital or health information exchange, if the 

14 information, transfer of information, or entries 

15 were made in good faith and without malice. 

16 (e) DEFINITIONS.—In this section: 

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

18 any person who brings a health care lawsuit, includ19 ing a person who asserts or claims a right to legal 

20 or equitable contribution, indemnity, or subrogation, 

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

22 and any person on whose behalf such a claim is as23 serted or such an action is brought, whether de24 ceased, incompetent, or a minor. 


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1 (2) COMPENSATORY DAMAGES.—The term 

2 ‘‘compensatory damages’’ means objectively 

3 verifiable monetary losses incurred as a result of the 

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

5 provide, use, or pay for) health care services or med6 ical products, such as past and future medical ex7 penses, loss of past and future earnings, cost of ob8 taining domestic services, loss of employment, and 

9 loss of business or employment opportunities, dam10 ages for physical and emotional pain, suffering, in11 convenience, physical impairment, mental anguish, 

12 disfigurement, loss of enjoyment in life, loss of soci13 ety and companionship, loss of consortium (other 

14 than loss of domestic service), hedonic damages, in15 jury to reputation, and all other nonpecuniary losses 

16 of any kind or nature. Such term includes economic 

17 damages and noneconomic damages, as such terms 

18 are defined in this subsection. 

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

20 damages’’ means objectively verifiable monetary 

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

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

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

24 past and future medical expenses, loss of past and 

25 future earnings, cost of obtaining domestic services, 


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1 loss of employment, and loss of business or employ2 ment opportunities. 

3 (4) CERTIFIED EHR TECHNOLOGY.—The term 

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

5 such term in section 1848(o)(4) of the Social Secu6 rity Act (42 U.S.C. 1395w–4(o)(4)). 

7 (5) EHR-RELATED ADVERSE EVENT.—The 

8 term ‘‘EHR-related adverse event’’ means, with re9 spect to a provider, a defect, malfunction, or error 

10 in the certified health information technology or 

11 electronic health record used by the provider, or in 

12 the input or output of data maintained through such 

13 technology or record, that results or could reason14 ably result in harm to a patient. 

15 (6) HEALTH CARE LAWSUIT.—The term 

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

17 claim concerning the provision of health care items 

18 or services or any medical product affecting inter19 state commerce, or any health care liability action 

20 concerning the provision of health care items or 

21 services or any medical product affecting interstate 

22 commerce, brought in a State or Federal court or 

23 pursuant to an alternative dispute resolution system, 

24 against a health care provider, a health care organi25 zation, or the manufacturer, distributor, supplier, 


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

2 regardless of the theory of liability on which the 

3 claim is based, or the number of claimants, plain4 tiffs, defendants, or other parties, or the number of 

5 claims or causes of action, in which the claimant al6 leges a health care liability claim. Such term does 

7 not include a claim or action which is based on 

8 criminal liability; which seeks civil fines or penalties 

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

10 is grounded in antitrust. 

11 (7) HEALTH CARE LIABILITY ACTION.—The 

12 term ‘‘health care liability action’’ means a civil ac13 tion brought in a State or Federal court or pursuant 

14 to an alternative dispute resolution system, against 

15 a health care provider, a health care organization, or 

16 the manufacturer, distributor, supplier, marketer, 

17 promoter, or seller of a medical product, regardless 

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

19 or the number of plaintiffs, defendants, or other par20 ties, or the number of causes of action, in which the 

21 claimant alleges a health care liability claim. 

22 (8) HEALTH CARE LIABILITY CLAIM.—The 

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

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1 vider, health care organization, or the manufacturer, 

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

3 a medical product, including third-party claims, 

4 cross-claims, counter-claims, or contribution claims, 

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

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

7 for) health care services or medical products, regard8 less of the theory of liability on which the claim is 

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

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

11 (9) HEALTH CARE ORGANIZATION.—The term 

12 ‘‘health care organization’’ means any person or en13 tity which is obligated to provide or pay for health 

14 benefits under any health plan, including any person 

15 or entity acting under a contract or arrangement 

16 with a health care organization to provide or admin17 ister any health benefit. 

18 (10) HEALTH CARE PROVIDER.—The term 

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

20 required by State or Federal laws or regulations to 

21 be licensed, registered, or certified to provide health 

22 care services, and being either so licensed, reg23 istered, or certified, or exempted from such require24 ment by other statute or regulation. 


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

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

3 items or services provided by a health care organiza4 tion, provider, or by any individual working under 

5 the supervision of a health care provider, that relates 

6 to the diagnosis, prevention, or treatment of any 

7 human disease or impairment, or the assessment or 

8 care of the health of human beings. 

9 (12) MALICIOUS INTENT TO INJURE.—The 

10 term ‘‘malicious intent to injure’’ means inten11 tionally causing or attempting to cause physical in12 jury other than providing health care items or serv13 ices. 

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

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

16 intended for humans, and the terms ‘‘drug’’, ‘‘de17 vice’’, and ‘‘biological product’’ have the meanings 

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

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

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

21 Public Health Service Act (42 U.S.C. 262(a)), re22 spectively, including any component or raw material 

23 used therein, but excluding health care services. 

24 (14) NONECONOMIC DAMAGES.—The term 

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1 ical impairment, mental anguish, disfigurement, loss 

2 of enjoyment of life, loss of society and companion3 ship, loss of consortium (other than loss of domestic 

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

5 all other nonpecuniary losses of any kind of nature. 

6 (15) PATIENT SAFETY ORGANIZATION.—The 

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

8 given to such term in section 921 of the Public 

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

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

11 damages’’ means damages awarded, for the purpose 

12 of punishment or deterrence, and not solely for com13 pensatory purposes, against a health care provider, 

14 health care organization, or a manufacturer, dis15 tributor, or supplier of a medical product. Punitive 

16 damages are neither economic nor economic dam17 ages. 

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

19 the several States, the District of Columbia, the 

20 Commonwealth of Puerto Rico, the Virgin Islands, 

21 Guam, American Samoa, the Northern Mariana Is22 lands, the Trust Territory of the Pacific Islands, and 

23 any other territory or possession of the United 

24 States, or any political subdivision thereof. 

Æ 


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