I 

111TH CONGRESS 

1ST SESSION H. R. 3987 

To amend titles XI and XVIII of the Social Security Act to promote the 

use of health information technology to better coordinate health care. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 3, 2009 

Mr. BLUNT (for himself, Mr. BARTON of Texas, Mr. BURGESS, Mrs. 

BLACKBURN, and Mr. GINGREY of Georgia) 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 titles XI and XVIII of the Social Security Act 

to promote the use of health information technology to 

better coordinate health care. 

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

3 SECTION 1. SAFE HARBORS TO ANTIKICKBACK CIVIL PEN4 ALTIES AND CRIMINAL PENALTIES FOR PRO5 VISION OF HEALTH INFORMATION TECH6 NOLOGY AND TRAINING SERVICES. 

7 (a) FOR CIVIL PENALTIES.—Section 1128A of the 

8 Social Security Act (42 U.S.C. 1320a–7a) is amended— 


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1 (1) in subsection (b), by adding at the end the 

2 following new paragraph: 

3 ‘‘(4) For purposes of this subsection, induce4 ments to reduce or limit services described in para5 graph (1) shall not include the practical or other ad6 vantages resulting from health information tech7 nology or related installation, maintenance, support, 

8 or training services.’’; and 

9 (2) in subsection (i), by adding at the end the 

10 following new paragraph: 

11 ‘‘(8) The term ‘health information technology’ 

12 means hardware, software, license, right, intellectual 

13 property, equipment, or other information tech14 nology (including new versions, upgrades, and 

15 connectivity) designed or provided primarily for the 

16 electronic creation, maintenance, or exchange of 

17 health information to better coordinate care or im18 prove health care quality, efficiency, or research.’’. 

19 (b) FOR CRIMINAL PENALTIES.—Section 1128B of 

20 such Act (42 U.S.C. 1320a–7b) is amended— 

21 (1) in subsection (b)(3)— 

22 (A) in subparagraph (G), by striking 

23 ‘‘and’’ at the end; 

24 (B) in the subparagraph (H) added by sec25 tion 237(d) of the Medicare Prescription Drug, 


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1 Improvement, and Modernization Act of 2003 

2 (Public Law 108–173; 117 Stat. 2213)— 

3 (i) by moving such subparagraph 2 

4 ems to the left; and 

5 (ii) by striking the period at the end 

6 and inserting a semicolon; 

7 (C) in the subparagraph (H) added by sec8 tion 431(a) of such Act (117 Stat. 2287)— 

9 (i) by redesignating such subpara10 graph as subparagraph (I); 

11 (ii) by moving such subparagraph 2 

12 ems to the left; and 

13 (iii) by striking the period at the end 

14 and inserting ‘‘; and’’; and 

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

16 subparagraph: 

17 ‘‘(J) any nonmonetary remuneration (in 

18 the form of health information technology, as 

19 defined in section 1128A(i)(8), or related instal20 lation, maintenance, support, or training serv21 ices) made to a person by a specified entity (as 

22 defined in subsection (g)) if— 

23 ‘‘(i) the provision of such remunera24 tion is without an agreement between the 

25 parties or legal condition that— 


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1 ‘‘(I) limits or restricts the use of 

2 the health information technology to 

3 services provided by the physician to 

4 individuals receiving services at the 

5 specified entity; 

6 ‘‘(II) limits or restricts the use of 

7 the health information technology in 

8 conjunction with other health informa9 tion technology; or 

10 ‘‘(III) conditions the provision of 

11 such remuneration on the referral of 

12 patients or business to the specified 

13 entity; 

14 ‘‘(ii) such remuneration is arranged 

15 for in a written agreement that is signed 

16 by the parties involved (or their represent17 atives) and that specifies the remuneration 

18 solicited or received (or offered or paid) 

19 and states that the provision of such remu20 neration is made for the primary purpose 

21 of better coordination of care or improve22 ment of health quality, efficiency, or re23 search; and 

24 ‘‘(iii) the specified entity providing the 

25 remuneration (or a representative of such 


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1 entity) has not taken any action to disable 

2 any basic feature of any hardware or soft3 ware component of such remuneration that 

4 would permit interoperability.’’; and 

5 (2) by adding at the end the following new sub6 section: 

7 ‘‘(g) SPECIFIED ENTITY DEFINED.—For purposes of 

8 subsection (b)(3)(J), the term ‘specified entity’ means an 

9 entity that is a hospital, group practice, prescription drug 

10 plan sponsor, a Medicare Advantage organization, or any 

11 other such entity specified by the Secretary, considering 

12 the goals and objectives of this section, as well as the goals 

13 to better coordinate the delivery of health care and to pro14 mote the adoption and use of health information tech15 nology.’’. 

16 (c) EFFECTIVE DATE AND EFFECT ON STATE

17 LAWS.— 

18 (1) EFFECTIVE DATE.—The amendments made 

19 by subsections (a) and (b) shall take effect on the 

20 date that is 120 days after the date of the enact21 ment of this Act. 

22 (2) PREEMPTION OF STATE LAWS.—No State 

23 (as defined in section 1101(a) of the Social Security 

24 Act (42 U.S.C. 1301(a)) for purposes of title XI of 

25 such Act) shall have in effect a State law that imVerDate Nov 24 2008 03:36 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3987.IH H3987

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1 poses a criminal or civil penalty for a transaction de2 scribed in section 1128A(b)(4) or section 

3 1128B(b)(3)(J) of such Act, as added by subsections 

4 (a)(1) and (b), respectively, if the conditions de5 scribed in the respective provision, with respect to 

6 such transaction, are met. 

7 (d) STUDY AND REPORT TO ASSESS EFFECT OF

8 SAFE HARBORS ON HEALTH SYSTEM.— 

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

10 Human Services shall conduct a study to determine 

11 the impact of each of the safe harbors described in 

12 paragraph (3). In particular, the study shall examine 

13 the following: 

14 (A) The effectiveness of each safe harbor 

15 in increasing the adoption of health information 

16 technology. 

17 (B) The types of health information tech18 nology provided under each safe harbor. 

19 (C) The extent to which the financial or 

20 other business relationships between providers 

21 under each safe harbor have changed as a re22 sult of the safe harbor in a way that adversely 

23 affects or benefits the health care system or 

24 choices available to consumers. 


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1 (D) The impact of the adoption of health 

2 information technology on health care quality, 

3 cost, and access under each safe harbor. 

4 (2) REPORT.—Not later than three years after 

5 the effective date described in subsection (c)(1), the 

6 Secretary of Health and Human Services shall sub7 mit to Congress a report on the study under para8 graph (1). 

9 (3) SAFE HARBORS DESCRIBED.—For purposes 

10 of paragraphs (1) and (2), the safe harbors de11 scribed in this paragraph are— 

12 (A) the safe harbor under section 

13 1128A(b)(4) of such Act (42 U.S.C. 1320a– 

14 7a(b)(4)), as added by subsection (a)(1); and 

15 (B) the safe harbor under section 

16 1128B(b)(3)(J) of such Act (42 U.S.C. 1320a– 

17 7b(b)(3)(J)), as added by subsection (b). 

18 SEC. 2. EXCEPTION TO LIMITATION ON CERTAIN PHYSI19 CIAN REFERRALS (UNDER STARK) FOR PRO20 VISION OF HEALTH INFORMATION TECH21 NOLOGY AND TRAINING SERVICES TO 

22 HEALTH CARE PROFESSIONALS. 

23 (a) IN GENERAL.—Section 1877(b) of the Social Se24 curity Act (42 U.S.C. 1395nn(b)) is amended by adding 

25 at the end the following new paragraph: 


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1 ‘‘(6) INFORMATION TECHNOLOGY AND TRAIN2 ING SERVICES.— 

3 ‘‘(A) IN GENERAL.—Any nonmonetary re4 muneration (in the form of health information 

5 technology or related installation, maintenance, 

6 support or training services) made by a speci7 fied entity to a physician if— 

8 ‘‘(i) the provision of such remunera9 tion is without an agreement between the 

10 parties or legal condition that— 

11 ‘‘(I) limits or restricts the use of 

12 the health information technology to 

13 services provided by the physician to 

14 individuals receiving services at the 

15 specified entity; 

16 ‘‘(II) limits or restricts the use of 

17 the health information technology in 

18 conjunction with other health informa19 tion technology; or 

20 ‘‘(III) conditions the provision of 

21 such remuneration on the referral of 

22 patients or business to the specified 

23 entity; 

24 ‘‘(ii) such remuneration is arranged 

25 for in a written agreement that is signed 


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1 by the parties involved (or their represent2 atives) and that specifies the remuneration 

3 made and states that the provision of such 

4 remuneration is made for the primary pur5 pose of better coordination of care or im6 provement of health quality, efficiency, or 

7 research; and 

8 ‘‘(iii) the specified entity (or a rep9 resentative of such entity) has not taken 

10 any action to disable any basic feature of 

11 any hardware or software component of 

12 such remuneration that would permit 

13 interoperability. 

14 ‘‘(B) HEALTH INFORMATION TECHNOLOGY

15 DEFINED.—For purposes of this paragraph, the 

16 term ‘health information technology’ means 

17 hardware, software, license, right, intellectual 

18 property, equipment, or other information tech19 nology (including new versions, upgrades, and 

20 connectivity) designed or provided primarily for 

21 the electronic creation, maintenance, or ex22 change of health information to better coordi23 nate care or improve health care quality, effi24 ciency, or research. 


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1 ‘‘(C) SPECIFIED ENTITY DEFINED.—For 

2 purposes of this paragraph, the term ‘specified 

3 entity’ means an entity that is a hospital, group 

4 practice, prescription drug plan sponsor, a 

5 Medicare Advantage organization, or any other 

6 such entity specified by the Secretary, consid7 ering the goals and objectives of this section, as 

8 well as the goals to better coordinate the deliv9 ery of health care and to promote the adoption 

10 and use of health information technology.’’. 

11 (b) EFFECTIVE DATE; EFFECT ON STATE LAWS.— 

12 (1) EFFECTIVE DATE.—The amendment made 

13 by subsection (a) shall take effect on the date that 

14 is 120 days after the date of the enactment of this 

15 Act. 

16 (2) PREEMPTION OF STATE LAWS.—No State 

17 (as defined in section 1101(a) of the Social Security 

18 Act (42 U.S.C. 1301(a)) for purposes of title XI of 

19 such Act) shall have in effect a State law that im20 poses a criminal or civil penalty for a transaction de21 scribed in section 1877(b)(6) of such Act, as added 

22 by subsection (a), if the conditions described in such 

23 section, with respect to such transaction, are met. 

24 (c) STUDY AND REPORT TO ASSESS EFFECT OF EX25 CEPTION ON HEALTH SYSTEM.— 


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

2 Human Services shall conduct a study to determine 

3 the impact of the exception under section 1877(b)(6) 

4 of such Act (42 U.S.C. 1395nn(b)(6)), as added by 

5 subsection (a). In particular, the study shall examine 

6 the following: 

7 (A) The effectiveness of the exception in 

8 increasing the adoption of health information 

9 technology. 

10 (B) The types of health information tech11 nology provided under the exception. 

12 (C) The extent to which the financial or 

13 other business relationships between providers 

14 under the exception have changed as a result of 

15 the exception in a way that adversely affects or 

16 benefits the health care system or choices avail17 able to consumers. 

18 (D) The impact of the adoption of health 

19 information technology on health care quality, 

20 cost, and access under the exception. 

21 (2) REPORT.—Not later than three years after 

22 the effective date described in subsection (b)(1), the 

23 Secretary of Health and Human Services shall sub24 mit to Congress a report on the study under para25 graph (1). 


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1 SEC. 3. RULES OF CONSTRUCTION REGARDING USE OF 

2 CONSORTIA. 

3 (a) APPLICATION TO SAFE HARBOR FROM CRIMINAL

4 PENALTIES.—Section 1128B(b)(3) of the Social Security 

5 Act (42 U.S.C. 1320a–7b(b)(3)) is amended by adding 

6 after and below subparagraph (J), as added by section 

7 1(b)(1), the following: ‘‘For purposes of subparagraph (J), 

8 nothing in such subparagraph shall be construed as pre9 venting a specified entity, consistent with the specific re10 quirements of such subparagraph, from forming a consor11 tium composed of health care providers, payers, employ12 ers, and other interested entities to collectively purchase 

13 and donate health information technology, or from offer14 ing health care providers a choice of health information 

15 technology products in order to take into account the vary16 ing needs of such providers receiving such products.’’. 

17 (b) APPLICATION TO STARK EXCEPTION.—Para18 graph (6) of section 1877(b) of the Social Security Act 

19 (42 U.S.C. 1395nn(b)), as added by section 2(a), is 

20 amended by adding at the end the following new subpara21 graph: 

22 ‘‘(D) RULE OF CONSTRUCTION.—For pur23 poses of subparagraph (A), nothing in such 

24 subparagraph shall be construed as preventing 

25 a specified entity, consistent with the specific 

26 requirements of such subparagraph, from— 


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1 ‘‘(i) forming a consortium composed 

2 of health care providers, payers, employers, 

3 and other interested entities to collectively 

4 purchase and donate health information 

5 technology; or 

6 ‘‘(ii) offering health care providers a 

7 choice of health information technology 

8 products in order to take into account the 

9 varying needs of such providers receiving 

10 such products.’’. 

Æ 


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