I 

113TH CONGRESS 

1ST SESSION H. R. 1331 

To amend certain requirements and penalties implemented under the Medicare 

and Medicaid programs by the HITECH Act of 2009, which would 

otherwise impede eligible professionals from adopting electronic health 

records to improve patient care. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 21, 2013 

Mrs. BLACK (for herself, Mr. CHABOT, Mr. GRIMM, Mr. HARRIS, and Mrs. 

BLACKBURN) 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 certain requirements and penalties implemented 

under the Medicare and Medicaid programs by the 

HITECH Act of 2009, which would otherwise impede 

eligible professionals from adopting electronic health 

records to improve patient 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. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Electronic Health Records Improvement Act’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents of 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Exception for certain eligible professionals from application of Medicare 

payment adjustment for not demonstrating EHR meaningful 

use. 

Sec. 3. Shortening EHR reporting period for application of Medicare EHR payment adjustment to eligible professionals. 

Sec. 4. Additional exceptions to application of Medicare payment adjustment 

for certain Medicaid and hospital-based eligible professionals 

not demonstrating EHR meaningful use. 

Sec. 5. Alternate meaningful use criteria for eligible professionals utilizing electronic health records and specialty registry systems. 

Sec. 6. Enhancing Medicare EHR meaningful use among eligible professionals 

who are rural health care providers. 

Sec. 7. Improving EHR meaningful use under Medicare by eligible professionals 

who practice in ambulatory surgical centers. 

Sec. 8. Exemption from certain EHR meaningful use requirements for certain 

eligible professionals for purposes of Medicare payment adjustment. 

Sec. 9. Additional administrative provisions relating to Medicare eligible professionals’ EHR incentives. 

Sec. 10. Non-application of provisions and amendments to eligible professional 

Medicare incentives for certain MA organizations and Medicaid 

incentives for adoption and meaningful use of certified EHR 

technology. 

3 SEC. 2. EXCEPTION FOR CERTAIN ELIGIBLE PROFES4 SIONALS FROM APPLICATION OF MEDICARE 

5 PAYMENT ADJUSTMENT FOR NOT DEM6 ONSTRATING EHR MEANINGFUL USE. 

7 (a) EXCEPTION FOR CERTAIN SMALL PHYSICIAN

8 PRACTICES.—Section 1848(a)(7) of the Social Security 

9 Act (42 U.S.C. 1395w–4(a)(7)) is amended— 

10 (1) in subparagraph (A)(i), by striking ‘‘sub11 paragraphs (B) and (D)’’ and inserting ‘‘subpara12 graphs (B), (D), and (F)’’; and 

13 (2) by adding at the end the following new sub14 paragraph: 


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1 ‘‘(F) 3-YEAR EXCEPTION FOR CERTAIN EL2 IGIBLE PROFESSIONALS.— 

3 ‘‘(i) IN GENERAL.—The Secretary 

4 shall exempt an eligible professional whom 

5 the Secretary determines is described in 

6 clause (ii) from the application of the pay7 ment adjustment under subparagraph (A) 

8 for each of the payment years 2015 

9 through 2017. The Secretary shall make a 

10 determination under the previous sentence, 

11 with respect to such an exemption for an 

12 eligible professional, only if such eligible 

13 professional submits a request for such ex14 emption. The Secretary shall determine 

15 whether or not an eligible professional is 

16 described in clause (ii) not later than 30 

17 days after the date such eligible profes18 sional submits a request pursuant to the 

19 previous sentence. 

20 ‘‘(ii) ELIGIBLE PROFESSIONALS IN

21 SMALL PHYSICIAN PRACTICES.—An eligible 

22 professional described in this clause is an 

23 eligible professional furnishing covered pro24 fessional services during the EHR reportVerDate Mar 15 2010 04:18 Mar 28, 2013 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1331.IH H1331

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1 ing period for 2015 in a physician practice 

2 that is a solo practice.’’. 

3 (b) EXCEPTION FOR CERTAIN PHYSICIANS NEAR RE4 TIREMENT AGE.—Subparagraph (F) of section 

5 1848(a)(7) of the Social Security Act (42 U.S.C. 1395w– 

6 4(a)(7)), as added by subsection (a), is amended— 

7 (1) in clause (i), in the first and third sen8 tences, by striking ‘‘clause (ii)’’ and inserting 

9 ‘‘clause (ii) or (iii)’’; and 

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

11 clause: 

12 ‘‘(iii) ELIGIBLE PROFESSIONALS AT

13 OR NEAR RETIREMENT AGE.—An eligible 

14 professional described in this clause is an 

15 eligible professional who as of the last day 

16 of 2015 has attained early retirement age 

17 (as defined in section 216(l)(2)) or who 

18 will attain such age during the 5-year pe19 riod following such day.’’. 

20 (c) NOTIFICATION OF ELIGIBILITY FOR EXCEPTIONS

21 FROM PAYMENT ADJUSTMENT.—Section 1848(a)(7) of 

22 the Social Security Act (42 U.S.C. 1395w–4(a)(7)), as 

23 amended by subsection (a), is further amended by adding 

24 at the end the following new subparagraph: 


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1 ‘‘(G) NOTIFICATION.—Not later than 30 

2 days after the date on which the Secretary de3 termines an eligible professional is exempt, pur4 suant to subparagraph (F), from the applica5 tion of the payment adjustment under subpara6 graph (A), the Secretary shall provide such eli7 gible professional notice of such determina8 tion.’’. 

9 SEC. 3. SHORTENING EHR REPORTING PERIOD FOR APPLI10 CATION OF MEDICARE EHR PAYMENT AD11 JUSTMENT TO ELIGIBLE PROFESSIONALS. 

12 (a) IN GENERAL.—Section 1848(a)(7)(E)(ii) of the 

13 Social Security Act (42 U.S.C. 1395w–4(a)(7)(E)(ii)) is 

14 amended by inserting ‘‘, so long as all of such period (or 

15 periods) occurs during the year in which the corresponding 

16 adjustment, if any, under this paragraph would be applied 

17 to the eligible professional involved’’ after ‘‘a period (or 

18 periods) specified by the Secretary’’. 

19 (b) REBATES.—Section 1848(a)(7)(A) of the Social 

20 Security Act (42 U.S.C. 1395w–4(a)(7)(A)) is amended 

21 by adding at the end the following new clause: 

22 ‘‘(iv) SPECIAL RULE.—The Secretary 

23 shall establish a process under which if for 

24 a calendar year, beginning with 2015, an 

25 adjustment is made under this paragraph 


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1 with respect to covered professional serv2 ices furnished by an eligible professional 

3 and then during such calendar year the eli4 gible professional meets the criteria for es5 tablishing meaningful use of certified EHR 

6 technology, the Secretary shall provide to 

7 the eligible professional a rebated amount 

8 such that the total amount of payment 

9 that the provider receives under this sub10 section for such services for such year is 

11 the fee schedule amount that would other12 wise apply to such services under this sub13 section without application of this para14 graph.’’. 

15 (c) CONFORMING AMENDMENT.—Section 

16 1848(o)(5)(B) of the Social Security Act is amended by 

17 adding at the end the following new sentence: ‘‘Such term, 

18 as used under this subsection with respect to subsection 

19 (a)(7) and a year beginning with 2015, shall have the 

20 meaning given such term under subsection (a)(7)(E)(ii).’’. 


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1 SEC. 4. ADDITIONAL EXCEPTIONS TO APPLICATION OF 

2 MEDICARE PAYMENT ADJUSTMENT FOR CER3 TAIN MEDICAID AND HOSPITAL-BASED ELIGI4 BLE PROFESSIONALS NOT DEMONSTRATING 

5 EHR MEANINGFUL USE. 

6 (a) ELIGIBLE PROFESSIONALS PARTICIPATING IN

7 MEDICAID EHR INCENTIVE PROGRAM.—Section 

8 1848(a)(7) of the Social Security Act (42 U.S.C. 1395w– 

9 4(a)(7)), as amended by section 2, is further amended— 

10 (1) in subparagraph (A)(i), by striking ‘‘(D), 

11 and (F)’’ and inserting ‘‘(D), (F), and (G)’’; 

12 (2) by redesignating subparagraph (G) as sub13 paragraph (H); and 

14 (3) by inserting after subparagraph (F) the fol15 lowing new subparagraph: 

16 ‘‘(G) ADDITIONAL EXCEPTIONS FOR CER17 TAIN MEDICAID PROVIDERS PARTICIPATING IN

18 MEDICAID EHR INCENTIVE PROGRAM.—In the 

19 case of an eligible professional who is a Med20 icaid provider described in section 

21 1903(t)(2)(A), the Secretary shall exempt such 

22 eligible professional from the application of the 

23 Medicare payment adjustment under subpara24 graph (A), with respect to a year, if such year 

25 is the first year that such professional received 

26 payment under section 1903(t).’’. 


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1 (b) HOSPITAL-BASED ELIGIBLE PROFESSIONALS.— 

2 Section 1848(a)(7)(D) of the Social Security Act (42 

3 U.S.C. 1395w–4(a)(7)(D)) is amended by adding at the 

4 end the following new sentence: ‘‘In applying the definition 

5 under subsection (o)(1)(C)(ii) for purposes of the previous 

6 sentence, the reference to ‘substantially all’ under such 

7 subsection shall mean 90 percent or more and a deter8 mination described in such subsection, with respect to an 

9 eligible professional, may only be made by the Secretary 

10 pursuant to a request of the professional that is submitted 

11 to the Secretary before 2015, and shall be effective for 

12 such professional for 2015 and each subsequent year.’’. 

13 (c) APPLICATION OF NOTIFICATION REQUIRE14 MENT.—Subparagraph (H) of section 1848(a)(7) of the 

15 Social Security Act (42 U.S.C. 1395w–4(a)(7)), as added 

16 by section 2(c) and redesignated by subsection (a)(2), is 

17 amended by striking ‘‘subparagraph (F)’’ and inserting 

18 ‘‘subparagraph (B), (D), (F), or (G)’’. 

19 SEC. 5. ALTERNATE MEANINGFUL USE CRITERIA FOR ELI20 GIBLE PROFESSIONALS UTILIZING ELEC21 TRONIC HEALTH RECORDS AND SPECIALTY 

22 REGISTRY SYSTEMS. 

23 Section 1848(o)(2) of the Social Security Act (42 

24 U.S.C. 1395w–4(o)(2)) is amended— 


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1 (1) in subparagraph (A)(iii), by striking ‘‘Sub2 ject to’’ and inserting ‘‘For such period, the eligible 

3 professional satisfactorily uses a qualified national 

4 specialty registry system that measures quality im5 provement or improves patient safety (as described 

6 in subparagraph (D)), or, subject to’’; and 

7 (2) by adding at the end the following new sub8 paragraph: 

9 ‘‘(D) QUALIFIED NATIONAL SPECIALTY

10 REGISTRIES.— 

11 ‘‘(i) Not later than January 1, 2015, 

12 the Secretary shall specify, pursuant to 

13 rulemaking, criteria for determining— 

14 ‘‘(I) if a national speciality reg15 istry system is a qualified national 

16 speciality registry system, for pur17 poses of this paragraph; and 

18 ‘‘(II) if an eligible professional 

19 has demonstrated satisfactory use (as 

20 determined by the Secretary) of a 

21 qualified national speciality registry 

22 system for a period. 

23 ‘‘(ii) For purposes of this paragraph, 

24 the term ‘qualified national specialty reg25 istry system’ means, with respect to a 


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1 medical speciality, a nationally available 

2 registry— 

3 ‘‘(I) that is administered or en4 dorsed by a national medical specialty 

5 society; 

6 ‘‘(II) that collects clinical data 

7 for purposes of measuring quality im8 provement or improving patient safety 

9 related to the type of care provided or 

10 conditions treated by the types of eli11 gible professionals that are typically 

12 part such national medical specialty 

13 society; and 

14 ‘‘(III) that is determined to be a 

15 qualified national speciality registry 

16 system by the Secretary under clause 

17 (ii).’’. 

18 SEC. 6. ENHANCING MEDICARE EHR MEANINGFUL USE 

19 AMONG ELIGIBLE PROFESSIONALS WHO ARE 

20 RURAL HEALTH CARE PROVIDERS. 

21 (a) EXTENSION OF MEDICARE EHR INCENTIVES TO

22 ELIGIBLE PROFESSIONALS PRACTICING IN RURAL

23 HEALTH CLINICS.— 

24 (1) EHR PAYMENT ADJUSTMENT.—Section 

25 1848(a)(7)(E)(i) of the Social Security Act (42 


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1 U.S.C. 1395w–4(a)(7)(E)(i)) is amended by insert2 ing before the period at the end the following: ‘‘and, 

3 with respect to payment years after 2014, includes 

4 rural health clinic services (as defined in section 

5 1861(aa)(1)) furnished by an eligible professional’’. 

6 (2) EHR INCREASED PAYMENTS.—Section 

7 1848(o)(5)(A) of the Social Security Act (42 U.S.C. 

8 1395w–4(o)(5)(A)) is amended by inserting before 

9 the period at the end the following: ‘‘and, with re10 spect to payment years after 2014, includes rural 

11 health clinic services (as defined in section 

12 1861(aa)(1)) furnished by an eligible professional’’. 

13 (b) EXTENSION OF MEDICARE ERX AND QUALITY

14 REPORTING INCENTIVES TO RURAL HEALTH CLINICS.— 

15 Section 1848(m)(6)(A) of the Social Security Act (42 

16 U.S.C. 1395w–4(m)(6)(A)) is amended by inserting before 

17 the period at the end the following: ‘‘except that the term 

18 ‘covered professional services’ shall, with respect to report19 ing periods for 2015 or a subsequent year, include rural 

20 health clinic services (as defined in section 1861(aa)(1)) 

21 furnished by an eligible professional’’. 


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1 SEC. 7. IMPROVING EHR MEANINGFUL USE UNDER MEDI2 CARE BY ELIGIBLE PROFESSIONALS WHO 

3 PRACTICE IN AMBULATORY SURGICAL CEN4 TERS. 

5 (a) 3-YEAR EXEMPTION FROM ENCOUNTERS CAL6 CULATION TO DEMONSTRATE EHR MEANINGFUL USE

7 FOR PURPOSES OF PAYMENT ADJUSTMENT.—Section 

8 1848(o)(2) of the Social Security Act (42 U.S.C. 1395w– 

9 4(o)(2)), as amended by section 5, is further amended by 

10 adding at the end the following new subparagraph: 

11 ‘‘(E) TREATMENT OF PATIENT ENCOUN12 TERS AT AMBULATORY SURGICAL CENTERS.— 

13 ‘‘(i) IN GENERAL.—Subject to clause 

14 (ii), in applying this paragraph for pur15 poses of subsection (a)(7), any submissions 

16 of claims for items or services furnished by 

17 an eligible professional at an ambulatory 

18 surgical center during performance years 

19 for the 2015, 2016, or 2017 payment de20 terminations shall not be included in the 

21 data used to determine if such eligible pro22 fessional is a meaningful EHR user. 

23 ‘‘(ii) RULE OF CONSTRUCTION.— 

24 Nothing in clause (i) shall prohibit an eli25 gible professional from receiving an addi26 tional payment under paragraph (1) with 


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1 respect to covered professional services fur2 nished in a payment year if the eligible 

3 professional is determined to be a mean4 ingful EHR user under this paragraph for 

5 the reporting period for such year. 

6 ‘‘(iii) LIMITATION OF PAYMENT AD7 JUSTMENT.—In applying clause (i) for 

8 purposes of subsection (a)(7) and a year, 

9 if an eligible professional is not a meaning10 ful EHR user pursuant to such clause for 

11 an EHR reporting period for the year, any 

12 adjustment under such subsection shall not 

13 apply to the fee schedule amount for cov14 ered professional services furnished by 

15 such eligible professional during the year 

16 in an ambulatory surgical center.’’. 

17 (b) REINSTATEMENT OF BATCHING PROCESS.—Sub18 paragraph (E) of section 1848(o)(2) of the Social Security 

19 Act (42 U.S.C. 1395w–4(o)(2)), as added by subsection 

20 (a), is amended by adding at the end the following new 

21 clause: 

22 ‘‘(iv) USE OF BATCHING PROCESS.— 

23 In applying this paragraph for purposes of 

24 subsection (a)(7) and with respect to a pa25 tient encounter occurring at an ambulatory 


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1 surgical center, if an eligible professional 

2 creates a record of such patient encounter 

3 without using certified EHR technology at 

4 the ambulatory surgical center and subse5 quently inputs the information of such 

6 record of such encounter into certified 

7 EHR technology at a different location, 

8 certified EHR technology shall be treated 

9 as being available at such patient encoun10 ter.’’. 

11 SEC. 8. EXEMPTION FROM CERTAIN EHR MEANINGFUL USE 

12 REQUIREMENTS FOR CERTAIN ELIGIBLE 

13 PROFESSIONALS FOR PURPOSES OF MEDI14 CARE PAYMENT ADJUSTMENT. 

15 Section 1848(o)(2) of the Social Security Act (42 

16 U.S.C. 1395w–4(o)(2)), as amended by section 7, is fur17 ther amended by adding at the end the following new sub18 paragraph: 

19 ‘‘(F) EXCEPTIONS FOR CERTAIN ELIGIBLE

20 PROFESSIONALS.—In applying this paragraph 

21 for purposes of subsection (a)(7), the following 

22 shall apply: 

23 ‘‘(i) In the case of an eligible profes24 sional who is an anesthesiologist or physi25 cian of any other specialty or subspecialty 


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1 identified through rulemaking as not con2 ducting traditional office visits, in order to 

3 be treated as a meaningful EHR user for 

4 an EHR reporting period under such sub5 section for a year such eligible professional 

6 shall not be required to— 

7 ‘‘(I) provide clinical summaries to 

8 patients; or 

9 ‘‘(II) provide patients, upon re10 quest, with an electronic copy of the 

11 health information of such patients 

12 (including diagnostic test results, 

13 problem lists, medication lists, and 

14 medication allergies). 

15 ‘‘(ii) In the case of an eligible profes16 sional who is an anesthesiologist or physi17 cian of any other specialty that does not 

18 traditionally order prescription drugs be19 fore administration of such drugs, as speci20 fied through rulemaking, in order to be 

21 treated as a meaningful EHR user for an 

22 EHR reporting period under such sub23 section for a year such eligible professional 

24 shall not be required to utilize EHR tech25 nology that provides for checks on preVerDate Mar 15 2010 04:18 Mar 28, 2013 Jkt 029200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H1331.IH H1331

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1 scription drug interactions until EHR 

2 technology is available to accommodate 

3 checks on interactions between prescription 

4 drugs administered in operating rooms or 

5 other anesthetizing locations. 

6 The Secretary shall provide notice to each eligi7 ble professional to whom clause (i) or (ii) ap8 plies of the application of such clause.’’. 

9 SEC. 9. ADDITIONAL ADMINISTRATIVE PROVISIONS RELAT10 ING TO MEDICARE ELIGIBLE PROFES11 SIONALS’ EHR INCENTIVES. 

12 (a) APPEALS PROCESS.—Section 1848(o)(3) of the 

13 Social Security Act (42 U.S.C. 1395w–4(o)(3)) is amend14 ed— 

15 (1) in subparagraph (C), by striking ‘‘There 

16 shall be no’’ and inserting ‘‘Except as provided 

17 under subparagraph (E), there shall be no’’; and 

18 (2) by adding at the end the following new sub19 paragraph: 

20 ‘‘(E) APPEALS PROCESS BEFORE APPLICA21 TION OF PENALTIES.—The Secretary shall, by 

22 not later than January 1, 2015, establish and 

23 have in place a process for eligible professionals 

24 to seek, before application of a payment adjust25 ment under subsection (a)(7)(A) with respect to 


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1 such an eligible professional, a review of the de2 termination that the eligible professional did 

3 not qualify as a meaningful EHR user under 

4 paragraph (2).’’. 

5 (b) SEMI-ANNUAL PROGRESS REPORT.— 

6 (1) IN GENERAL.—Not later than six months 

7 after the date of the enactment of this Act and every 

8 six months thereafter until the date specified in 

9 paragraph (3), the Secretary of Health and Human 

10 Services, through the Administrator of the Centers 

11 for Medicare & Medicaid Services, shall submit to 

12 Congress a report that contains the following infor13 mation: 

14 (A) Improvements that have been made in 

15 streamlining requirements among various pro16 grams under the Medicare program under title 

17 XVIII of the Social Security Act regarding 

18 similar information (such as for purposes of 

19 meaningful use of certified EHR technology, 

20 physician quality reporting, and electronic pre21 scribing). 

22 (B) Improvements certified EHR tech23 nology vendors have made in interoperability. 

24 (C) The progress of the adoption of cer25 tified EHR technology by physician specialty 


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1 groups and the percentage of eligible profes2 sionals (as defined in section 1848(a)(7)(E) of 

3 the Social Security Act) who are eligible for in4 centive payments under the Medicare program 

5 for meaningful use of certified EHR technology. 

6 (D) The reporting capabilities of qualified 

7 national specialty reporting systems (as defined 

8 in section 1848(o)(2) of the Social Security Act, 

9 as added by section 5) and recommendations 

10 for making such registries more interactive with 

11 EHR technology. 

12 (E) The results of the most recent survey 

13 conducted under paragraph (2). 

14 (2) PHYSICIAN SURVEY.—Not later than six 

15 months after the date of the enactment of this Act 

16 and every six months thereafter until the date speci17 fied in paragraph (3), the Secretary of Health and 

18 Human Services, through the Administrator of the 

19 Centers for Medicare & Medicaid Services, shall con20 duct a survey of physicians to identify barriers en21 countered by physicians in achieving stage 3 of 

22 meaningful use of certified EHR technology. 

23 (3) DATE SPECIFIED.—For purposes of para24 graphs (1) and (2), the date specified in this para25 graph is the date on which 75 percent of all eligible 


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1 professionals (as defined in section 1848(o)(5) of the 

2 Social Security Act) have satisfied the requirements 

3 of stage 2 of meaningful use of certified EHR tech4 nology (as defined by the Secretary of Health and 

5 Human Services). 

6 SEC. 10. NON-APPLICATION OF PROVISIONS AND AMEND7 MENTS TO ELIGIBLE PROFESSIONAL MED8 ICAID INCENTIVES FOR ADOPTION AND 

9 MEANINGFUL USE OF CERTIFIED EHR TECH10 NOLOGY. 

11 Section 1903(t) of the Social Security Act (42 U.S.C. 

12 1396b(t)) is amended by adding at the end the following 

13 new paragraph: 

14 ‘‘(11) The provisions of, including the amendments 

15 made by, the Electronic Health Records Improvement Act 

16 (other than section 10 of such Act) shall not apply for 

17 purposes of this subsection or subsection (a)(3)(F).’’. 

Æ 


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