594 
(A) The purpose of the exchange is for re-
search or public health activities (as described 
in sections 164.501, 164.512(i), and 164.512(b) 
of title 45, Code of Federal Regulations) and 
the price charged reflects the costs of prepara-
tion and transmittal of the data for such pur-
pose. 
(B) The purpose of the exchange is for the 
treatment of the individual and the price 
charges reflects not more than the costs of 
preparation and transmittal of the data for 
such purpose. 
(C) The purpose of the exchange is the 
health care operation specifically described in 
subparagraph (iv) of paragraph (6) of the defi-
nition of health care operations in section 
164.501 of title 45, Code of Federal Regula-
tions. 
(D) The purpose of the exchange is for re-
muneration that is provided by a covered entity 
to a business associate for activities involving 
the exchange of protected health information 
that the business associate undertakes on behalf 
of and at the specific request of the covered en-
tity pursuant to a business associate agreement.
595 
(E) The purpose of the exchange is to pro-
vide an individual with a copy of the individ-
ual’s protected health information pursuant to 
section 164.524 of title 45, Code of Federal 
Regulations. 
(F) The purpose of the exchange is other-
wise determined by the Secretary in regulations 
to be similarly necessary and appropriate as the 
exceptions provided in subparagraphs (A) 
through (E). 
(3) REGULATIONS.—The Secretary shall pro-
mulgate regulations to carry out paragraph (this 
subsection, including exceptions described in para-
graph (2), not later than 18 months after the date 
of the enactment of this title. 
(4) EFFECTIVE
DATE.—Paragraph (1) shall 
apply to exchanges occurring on or after the date 
that is 6 months after the date of the promulgation 
of final regulations implementing this subsection. 
(f) ACCESS TO CERTAIN INFORMATION IN ELEC-
TRONIC FORMAT.—In applying section 164.524 of title 
45, Code of Federal Regulations, in the case that a cov-
ered entity uses or maintains an electronic health record 
with respect to protected health information of an indi-
vidual—
596 
(1) the individual shall have a right to obtain 
from such covered entity a copy of such information 
in an electronic format; and 
(2) notwithstanding paragraph (c)(4) of such 
section, any fee that the covered entity may impose 
for providing such individual with a copy of such in-
formation (or a summary or explanation of such in-
formation) if such copy (or summary or explanation) 
is in an electronic form shall not be greater than the 
entity’s labor costs in responding to the request for 
the copy (or summary or explanation). 
(g) CLARIFICATION.—Nothing in this subtitle shall 
constitute a waiver of any privilege otherwise applicable 
to an individual with respect to the protected health infor-
mation of such individual. 
SEC. 4406. CONDITIONS ON CERTAIN CONTACTS AS PART 
OF HEALTH CARE OPERATIONS. 
(a) MARKETING.— 
(1) IN GENERAL.—A communication by a cov-
ered entity or business associate that is about a 
product or service and that encourages recipients of 
the communication to purchase or use the product 
or service shall not be considered a health care oper-
ation for purposes of subpart E of part 164 of title 
45, Code of Federal Regulations, unless the commu-
597 
nication is made as described in subparagraph (i), 
(ii), or (iii) of paragraph (1) of the definition of 
marketing in section 164.501 of such title. 
(2) 
PAYMENT
FOR
CERTAIN
COMMUNICA-
TIONS.—A covered entity or business associate may 
not receive direct or indirect payment in exchange 
for making any communication described in sub-
paragraph (i), (ii), or (iii) of paragraph (1) of the 
definition of marketing in section 164.501 of title 
45, Code of Federal Regulations, except— 
(A) a business associate of a covered entity 
may receive payment from the covered entity 
for making any such communication on behalf 
of the covered entity that is consistent with the 
written contract (or other written arrangement) 
described in section 164.502(e)(2) of such title 
between such business associate and covered en-
tity; or 
(B) a covered entity may receive payment 
in exchange for making any such communica-
tion if the entity obtains from the recipient of 
the communication, in accordance with section 
164.508 of title 45, Code of Federal Regula-
tions, a valid authorization (as described in
598 
paragraph (b) of such section) with respect to 
such communication. 
(b) FUNDRAISING.—Fundraising for the benefit of a 
covered entity shall not be considered a health care oper-
ation for purposes of section 164.501 of title 45, Code of 
Federal Regulations. 
(c) EFFECTIVE DATE.—This section shall apply to 
contracting occurring on or after the effective date speci-
fied under section 4423. 
SEC. 4407. TEMPORARY BREACH NOTIFICATION REQUIRE-
MENT FOR VENDORS OF PERSONAL HEALTH 
RECORDS AND OTHER NON-HIPAA COVERED 
ENTITIES. 
(a) IN GENERAL.—In accordance with subsection (c), 
each vendor of personal health records, following the dis-
covery of a breach of security of unsecured PHR identifi-
able health information that is in a personal health record 
maintained or offered by such vendor, and each entity de-
scribed in clause (ii) or (iii) of section 4424(b)(1)(A), fol-
lowing the discovery of a breach of security of such infor-
mation that is obtained through a product or service pro-
vided by such entity, shall— 
(1) notify each individual who is a citizen or 
resident of the United States whose unsecured PHR 
identifiable health information was acquired by an
599 
unauthorized person as a result of such a breach of 
security; and 
(2) notify the Federal Trade Commission. 
(b) NOTIFICATION BY THIRD PARTY SERVICE PRO-
VIDERS.—A third party service provider that provides 
services to a vendor of personal health records or to an 
entity described in clause (ii) or (iii) of section 
4424(b)(1)(A) in connection with the offering or mainte-
nance of a personal health record or a related product or 
service and that accesses, maintains, retains, modifies, 
records, stores, destroys, or otherwise holds, uses, or dis-
closes unsecured PHR identifiable health information in 
such a record as a result of such services shall, following 
the discovery of a breach of security of such information, 
notify such vendor or entity, respectively, of such breach. 
Such notice shall include the identification of each indi-
vidual whose unsecured PHR identifiable health informa-
tion has been, or is reasonably believed to have been, 
accessed, acquired, or disclosed during such breach. 
(c) APPLICATION OF REQUIREMENTS FOR TIMELI-
NESS, METHOD, AND CONTENT
OF NOTIFICATIONS.— 
Subsections (c), (d), (e), and (f) of section 402 shall apply 
to a notification required under subsection (a) and a ven-
dor of personal health records, an entity described in sub-
section (a) and a third party service provider described
600 
in subsection (b), with respect to a breach of security 
under subsection (a) of unsecured PHR identifiable health 
information in such records maintained or offered by such 
vendor, in a manner specified by the Federal Trade Com-
mission. 
(d) NOTIFICATION OF THE SECRETARY.—Upon re-
ceipt of a notification of a breach of security under sub-
section (a)(2), the Federal Trade Commission shall notify 
the Secretary of such breach. 
(e) ENFORCEMENT.—A violation of subsection (a) or 
(b) shall be treated as an unfair and deceptive act or prac-
tice in violation of a regulation under section 18(a)(1)(B) 
of the Federal Trade Commission Act (15 U.S.C. 
57a(a)(1)(B)) regarding unfair or deceptive acts or prac-
tices. 
(f) DEFINITIONS.—For purposes of this section: 
(1) BREACH OF SECURITY.—The term ‘‘breach 
of security’’ means, with respect to unsecured PHR 
identifiable health information of an individual in a 
personal health record, acquisition of such informa-
tion without the authorization of the individual. 
(2) PHR IDENTIFIABLE
HEALTH
INFORMA-
TION.—The term ‘‘PHR identifiable health informa-
tion’’ means individually identifiable health informa-
tion, as defined in section 1171(6) of the Social Se-
601 
curity Act (42 U.S.C. 1320d(6)), and includes, with 
respect to an individual, information— 
(A) that is provided by or on behalf of the 
individual; and 
(B) that identifies the individual or with 
respect to which there is a reasonable basis to 
believe that the information can be used to 
identify the individual. 
(3) UNSECURED
PHR
IDENTIFIABLE
HEALTH 
INFORMATION.— 
(A) IN
GENERAL.—Subject to subpara-
graph (B), the term ‘‘unsecured PHR identifi-
able health information’’ means PHR identifi-
able health information that is not protected 
through the use of a technology or methodology 
specified by the Secretary in the guidance 
issued under section 4402(h)(2). 
(B) EXCEPTION
IN
CASE
TIMELY
GUID-
ANCE NOT ISSUED.—In the case that the Sec-
retary does not issue guidance under section 
4402(h)(2) by the date specified in such sec-
tion, for purposes of this section, the term ‘‘un-
secured PHR identifiable health information’’ 
shall mean PHR identifiable health information 
that is not secured by a technology standard
602 
that renders protected health information unus-
able, unreadable, or indecipherable to unauthor-
ized individuals and that is developed or en-
dorsed by a standards developing organization 
that is accredited by the American National 
Standards Institute. 
(g) REGULATIONS; EFFECTIVE DATE; SUNSET.— 
(1) 
REGULATIONS; 
EFFECTIVE
DATE.—To 
carry out this section, the Secretary of Health and 
Human Services shall promulgate interim final regu-
lations by not later than the date that is 180 days 
after the date of the enactment of this section. The 
provisions of this section shall apply to breaches of 
security that are discovered on or after the date that 
is 30 days after the date of publication of such in-
terim final regulations. 
(2) SUNSET.—The provisions of this section 
shall not apply to breaches of security occurring on 
or after the earlier of the following the dates: 
(A) The date on which a standard relating 
to requirements for entities that are not covered 
entities that includes requirements relating to 
breach notification has been promulgated by the 
Secretary.
603 
(B) The date on which a standard relating 
to requirements for entities that are not covered 
entities that includes requirements relating to 
breach notification has been promulgated by the 
Federal Trade Commission and has taken ef-
fect. 
SEC. 4408. BUSINESS ASSOCIATE CONTRACTS REQUIRED 
FOR CERTAIN ENTITIES. 
Each organization, with respect to a covered entity, 
that provides data transmission of protected health infor-
mation to such entity (or its business associate) and that 
requires access on a routine basis to such protected health 
information, such as a Health Information Exchange Or-
ganization, Regional Health Information Organization, E- 
prescribing Gateway, or each vendor that contracts with 
a covered entity to allow that covered entity to offer a per-
sonal health record to patients as part of its electronic 
health record, is required to enter into a written contract 
(or other written arrangement) described in section 
164.502(e)(2) of title 45, Code of Federal Regulations and 
a written contract (or other arrangement) described in 
section 164.308(b) of such title, with such entity and shall 
be treated as a business associate of the covered entity 
for purposes of the provisions of this subtitle and subparts 
C and E of part 164 of title 45, Code of Federal Regula-
604 
tions, as such provisions are in effect as of the date of 
enactment of this title. 
SEC. 4409. CLARIFICATION OF APPLICATION OF WRONGFUL 
DISCLOSURES CRIMINAL PENALTIES. 
Section 1177(a) of the Social Security Act (42 U.S.C. 
1320d–6(a)) is amended by adding at the end the fol-
lowing new sentence: ‘‘For purposes of the previous sen-
tence, a person (including an employee or other individual) 
shall be considered to have obtained or disclosed individ-
ually identifiable health information in violation of this 
part if the information is maintained by a covered entity 
(as defined in the HIPAA privacy regulation described in 
section 1180(b)(3)) and the individual obtained or dis-
closed such information without authorization.’’. 
SEC. 4410. IMPROVED ENFORCEMENT. 
(a) IN GENERAL.—Section 1176 of the Social Secu-
rity Act (42 U.S.C. 1320d–5) is amended— 
(1) in subsection (b)(1), by striking ‘‘the act 
constitutes an offense punishable under section 
1177’’ and inserting ‘‘a penalty has been imposed 
under section 1177 with respect to such act’’; and 
(2) by adding at the end the following new sub-
section: 
‘‘(c) NONCOMPLIANCE
DUE
TO
WILLFUL
NE-
GLECT.—
606 
title or section 1176 of the Social Security Act (42 
U.S.C. 1320d–5) insofar as such section relates to 
privacy or security shall be transferred to the Office 
of Civil Rights of the Department of Health and 
Human Services to be used for purposes of enforcing 
the provisions of this subtitle and subparts C and E 
of part 164 of title 45, Code of Federal Regulations, 
as such provisions are in effect as of the date of en-
actment of this Act. 
(2) GAO REPORT.—Not later than 18 months 
after the date of the enactment of this title, the 
Comptroller General shall submit to the Secretary a 
report including recommendations for a methodology 
under which an individual who is harmed by an act 
that constitutes an offense referred to in paragraph 
(1) may receive a percentage of any civil monetary 
penalty or monetary settlement collected with re-
spect to such offense. 
(3) ESTABLISHMENT
OF
METHODOLOGY
TO 
DISTRIBUTE PERCENTAGE OF CMPS COLLECTED TO 
HARMED
INDIVIDUALS.—Not later than 3 years 
after the date of the enactment of this title, the Sec-
retary shall establish by regulation and based on the 
recommendations submitted under paragraph (2), a 
methodology under which an individual who is
607 
harmed by an act that constitutes an offense re-
ferred to in paragraph (1) may receive a percentage 
of any civil monetary penalty or monetary settlement 
collected with respect to such offense. 
(4) APPLICATION
OF
METHODOLOGY.—The 
methodology under paragraph (3) shall be applied 
with respect to civil monetary penalties or monetary 
settlements imposed on or after the effective date of 
the regulation. 
(d) TIERED INCREASE IN AMOUNT OF CIVIL MONE-
TARY PENALTIES.— 
(1) IN GENERAL.—Section 1176(a)(1) of the 
Social Security Act (42 U.S.C. 1320d–5(a)(1)) is 
amended by striking ‘‘who violates a provision of 
this part a penalty of not more than’’ and all that 
follows and inserting the following: ‘‘who violates a 
provision of this part— 
‘‘(A) in the case of a violation of such pro-
vision in which it is established that the person 
did not know (and by exercising reasonable dili-
gence would not have known) that such person 
violated such provision, a penalty for each such 
violation of an amount that is at least the 
amount described in paragraph (3)(A) but not
608 
to exceed the amount described in paragraph 
(3)(D); 
‘‘(B) in the case of a violation of such pro-
vision in which it is established that the viola-
tion was due to reasonable cause and not to 
willful neglect, a penalty for each such violation 
of an amount that is at least the amount de-
scribed in paragraph (3)(B) but not to exceed 
the amount described in paragraph (3)(D); and 
‘‘(C) in the case of a violation of such pro-
vision in which it is established that the viola-
tion was due to willful neglect— 
‘‘(i) if the violation is corrected as de-
scribed in subsection (b)(3)(A), a penalty 
in an amount that is at least the amount 
described in paragraph (3)(C) but not to 
exceed the amount described in paragraph 
(3)(D); and 
‘‘(ii) if the violation is not corrected 
as described in such subsection, a penalty 
in an amount that is at least the amount 
described in paragraph (3)(D). 
In determining the amount of a penalty under 
this section for a violation, the Secretary shall 
base such determination on the nature and ex-
609 
tent of the violation and the nature and extent 
of the harm resulting from such violation.’’. 
(2) TIERS OF PENALTIES DESCRIBED.—Section 
1176(a) of such Act (42 U.S.C. 1320d–5(a)) is fur-
ther amended by adding at the end the following 
new paragraph: 
‘‘(3) TIERS
OF
PENALTIES
DESCRIBED.—For 
purposes of paragraph (1), with respect to a viola-
tion by a person of a provision of this part— 
‘‘(A) the amount described in this subpara-
graph is $100 for each such violation, except 
that the total amount imposed on the person 
for all such violations of an identical require-
ment or prohibition during a calendar year may 
not exceed $25,000; 
‘‘(B) the amount described in this subpara-
graph is $1,000 for each such violation, except 
that the total amount imposed on the person 
for all such violations of an identical require-
ment or prohibition during a calendar year may 
not exceed $100,000; 
‘‘(C) the amount described in this subpara-
graph is $10,000 for each such violation, except 
that the total amount imposed on the person 
for all such violations of an identical require-
610 
ment or prohibition during a calendar year may 
not exceed $250,000; and 
‘‘(D) the amount described in this sub-
paragraph is $50,000 for each such violation, 
except that the total amount imposed on the 
person for all such violations of an identical re-
quirement or prohibition during a calendar year 
may not exceed $1,500,000.’’. 
(3) 
CONFORMING
AMENDMENTS.—Section 
1176(b) of such Act (42 U.S.C. 1320d–5(b)) is 
amended— 
(A) by striking paragraph (2) and redesig-
nating paragraphs (3) and (4) as paragraphs 
(2) and (3), respectively; and 
(B) in paragraph (2), as so redesignated— 
(i) in subparagraph (A), by striking 
‘‘in subparagraph (B), a penalty may not 
be imposed under subsection (a) if’’ and all 
that follows through ‘‘the failure to comply 
is corrected’’ and inserting ‘‘in subpara-
graph (B) or subsection (a)(1)(C), a pen-
alty may not be imposed under subsection 
(a) if the failure to comply is corrected’’; 
and
611 
(ii) in subparagraph (B), by striking 
‘‘(A)(ii)’’ and inserting ‘‘(A)’’ each place it 
appears. 
(4) EFFECTIVE DATE.—The amendments made 
by this subsection shall apply to violations occurring 
after the date of the enactment of this title. 
(e) ENFORCEMENT THROUGH STATE ATTORNEYS 
GENERAL.— 
(1) IN GENERAL.—Section 1176 of the Social 
Security Act (42 U.S.C. 1320d–5) is amended by 
adding at the end the following new subsection: 
‘‘(c) ENFORCEMENT BY STATE ATTORNEYS GEN-
ERAL.— 
‘‘(1) CIVIL
ACTION.—Except as provided in 
subsection (b), in any case in which the attorney 
general of a State has reason to believe that an in-
terest of one or more of the residents of that State 
has been or is threatened or adversely affected by 
any person who violates a provision of this part, the 
attorney general of the State, as parens patriae, may 
bring a civil action on behalf of such residents of the 
State in a district court of the United States of ap-
propriate jurisdiction— 
‘‘(A) to enjoin further such violation by the 
defendant; or
612 
‘‘(B) to obtain damages on behalf of such 
residents of the State, in an amount equal to 
the amount determined under paragraph (2). 
‘‘(2) STATUTORY DAMAGES.— 
‘‘(A) IN GENERAL.—For purposes of para-
graph (1)(B), the amount determined under 
this paragraph is the amount calculated by mul-
tiplying the number of violations by up to $100. 
For purposes of the preceding sentence, in the 
case of a continuing violation, the number of 
violations shall be determined consistent with 
the HIPAA privacy regulations (as defined in 
section 1180(b)(3)) for violations of subsection 
(a). 
‘‘(B) LIMITATION.—The total amount of 
damages imposed on the person for all viola-
tions of an identical requirement or prohibition 
during a calendar year may not exceed $25,000. 
‘‘(C) REDUCTION
OF
DAMAGES.—In as-
sessing damages under subparagraph (A), the 
court may consider the factors the Secretary 
may consider in determining the amount of a 
civil money penalty under subsection (a) under 
the HIPAA privacy regulations.
613 
‘‘(3) ATTORNEY FEES.—In the case of any suc-
cessful action under paragraph (1), the court, in its 
discretion, may award the costs of the action and 
reasonable attorney fees to the State. 
‘‘(4) NOTICE TO SECRETARY.—The State shall 
serve prior written notice of any action under para-
graph (1) upon the Secretary and provide the Sec-
retary with a copy of its complaint, except in any 
case in which such prior notice is not feasible, in 
which case the State shall serve such notice imme-
diately upon instituting such action. The Secretary 
shall have the right— 
‘‘(A) to intervene in the action; 
‘‘(B) upon so intervening, to be heard on 
all matters arising therein; and 
‘‘(C) to file petitions for appeal. 
‘‘(5) CONSTRUCTION.—For purposes of bring-
ing any civil action under paragraph (1), nothing in 
this section shall be construed to prevent an attor-
ney general of a State from exercising the powers 
conferred on the attorney general by the laws of that 
State. 
‘‘(6) VENUE; SERVICE OF PROCESS.— 
‘‘(A) VENUE.—Any action brought under 
paragraph (1) may be brought in the district
614 
court of the United States that meets applicable 
requirements relating to venue under section 
1391 of title 28, United States Code. 
‘‘(B) SERVICE OF PROCESS.—In an action 
brought under paragraph (1), process may be 
served in any district in which the defendant— 
‘‘(i) is an inhabitant; or 
‘‘(ii) maintains a physical place of 
business. 
‘‘(7) LIMITATION
ON
STATE
ACTION
WHILE 
FEDERAL ACTION IS PENDING.—If the Secretary has 
instituted an action against a person under sub-
section (a) with respect to a specific violation of this 
part, no State attorney general may bring an action 
under this subsection against the person with re-
spect to such violation during the pendency of that 
action. 
‘‘(8) APPLICATION OF CMP STATUTE OF LIMI-
TATION.—A civil action may not be instituted with 
respect to a violation of this part unless an action 
to impose a civil money penalty may be instituted 
under subsection (a) with respect to such violation 
consistent with the second sentence of section 
1128A(c)(1).’’.
615 
(2) CONFORMING
AMENDMENTS.—Subsection 
(b) of such section, as amended by subsection (d)(3), 
is amended— 
(A) in paragraph (1), by striking ‘‘A pen-
alty may not be imposed under subsection (a)’’ 
and inserting ‘‘No penalty may be imposed 
under subsection (a) and no damages obtained 
under subsection (c)’’; 
(B) in paragraph (2)(A)— 
(i) in the matter before clause (i), by 
striking ‘‘a penalty may not be imposed 
under subsection (a)’’ and inserting ‘‘no 
penalty may be imposed under subsection 
(a) and no damages obtained under sub-
section (c)’’; and 
(ii) in clause (ii), by inserting ‘‘or 
damages’’ after ‘‘the penalty’’; 
(C) in paragraph (2)(B)(i), by striking 
‘‘The period’’ and inserting ‘‘With respect to 
the imposition of a penalty by the Secretary 
under subsection (a), the period’’; and 
(D) in paragraph (3), by inserting ‘‘and 
any damages under subsection (c)’’ after ‘‘any 
penalty under subsection (a)’’.
616 
(3) EFFECTIVE DATE.—The amendments made 
by this subsection shall apply to violations occurring 
after the date of the enactment of this Act. 
(f) ALLOWING CONTINUED USE OF CORRECTIVE AC-
TION.—Such section is further amended by adding at the 
end the following new subsection: 
‘‘(d) ALLOWING CONTINUED USE OF CORRECTIVE 
ACTION.—Nothing in this section shall be construed as 
preventing the Office of Civil Rights of the Department 
of Health and Human Services from continuing, in its dis-
cretion, to use corrective action without a penalty in cases 
where the person did not know (and by exercising reason-
able diligence would not have known) of the violation in-
volved.’’. 
SEC. 4411. AUDITS. 
The Secretary shall provide for periodic audits to en-
sure that covered entities and business associates that are 
subject to the requirements of this subtitle and subparts 
C and E of part 164 of title 45, Code of Federal Regula-
tions, as such provisions are in effect as of the date of 
enactment of this Act, comply with such requirements.
617 
SEC. 4412. SPECIAL RULE FOR INFORMATION TO REDUCE 
MEDICATION ERRORS AND IMPROVE PA-
TIENT SAFETY. 
Nothing under this subtitle shall prevent a phar-
macist from communicating with patients in order to re-
duce medication errors and improve patient safety pro-
vided there is no remuneration other than for the treat-
ment of the individual and payment for such treatment 
of the individual as defined in 45 CFR 164.501.
The 
Secretary may by regulation authorize a pharmacy to re-
ceive remuneration that does not exceed their reasonable 
out-of-pocket costs for such communications if the Sec-
retary determines that allowing this remuneration im-
proves patient care and protects protected health informa-
tion. 
PART II—RELATIONSHIP TO OTHER LAWS; REGU-
LATORY REFERENCES; EFFECTIVE DATE; RE-
PORTS 
SEC. 4421. RELATIONSHIP TO OTHER LAWS. 
(a) APPLICATION OF HIPAA STATE PREEMPTION.— 
Section 1178 of the Social Security Act (42 U.S.C. 
1320d–7) shall apply to a provision or requirement under 
this subtitle in the same manner that such section applies 
to a provision or requirement under part C of title XI of 
such Act or a standard or implementation specification
618 
adopted or established under sections 1172 through 1174 
of such Act. 
(b) HEALTH INSURANCE PORTABILITY
AND AC-
COUNTABILITY ACT.—The standards governing the pri-
vacy and security of individually identifiable health infor-
mation promulgated by the Secretary under sections 
262(a) and 264 of the Health Insurance Portability and 
Accountability Act of 1996 shall remain in effect to the 
extent that they are consistent with this subtitle. The Sec-
retary shall by rule amend such Federal regulations as re-
quired to make such regulations consistent with this sub-
title. 
SEC. 4422. REGULATORY REFERENCES. 
Each reference in this subtitle to a provision of the 
Code of Federal Regulations refers to such provision as 
in effect on the date of the enactment of this title (or to 
the most recent update of such provision). 
SEC. 4423. EFFECTIVE DATE. 
Except as otherwise specifically provided, the provi-
sions of part I shall take effect on the date that is 12 
months after the date of the enactment of this title. 
SEC. 4424. STUDIES, REPORTS, GUIDANCE. 
(a) REPORT ON COMPLIANCE.— 
(1) IN GENERAL.—For the first year beginning 
after the date of the enactment of this Act and an-
619 
nually thereafter, the Secretary shall prepare and 
submit to the Committee on Health, Education, 
Labor, and Pensions of the Senate and the Com-
mittee on Ways and Means and the Committee on 
Energy and Commerce of the House of Representa-
tives a report concerning complaints of alleged viola-
tions of law, including the provisions of this subtitle 
as well as the provisions of subparts C and E of part 
164 of title 45, Code of Federal Regulations, (as 
such provisions are in effect as of the date of enact-
ment of this Act) relating to privacy and security of 
health information that are received by the Secretary 
during the year for which the report is being pre-
pared. Each such report shall include, with respect 
to such complaints received during the year— 
(A) the number of such complaints; 
(B) the number of such complaints re-
solved informally, a summary of the types of 
such complaints so resolved, and the number of 
covered entities that received technical assist-
ance from the Secretary during such year in 
order to achieve compliance with such provi-
sions and the types of such technical assistance 
provided;
620 
(C) the number of such complaints that 
have resulted in the imposition of civil monetary 
penalties or have been resolved through mone-
tary settlements, including the nature of the 
complaints involved and the amount paid in 
each penalty or settlement; 
(D) the number of compliance reviews con-
ducted and the outcome of each such review; 
(E) the number of subpoenas or inquiries 
issued; 
(F) the Secretary’s plan for improving 
compliance with and enforcement of such provi-
sions for the following year; and 
(G) the number of audits performed and a 
summary of audit findings pursuant to section 
4411. 
(2) AVAILABILITY
TO
PUBLIC.—Each report 
under paragraph (1) shall be made available to the 
public on the Internet website of the Department of 
Health and Human Services. 
(b) STUDY AND REPORT ON APPLICATION OF PRI-
VACY AND SECURITY REQUIREMENTS TO NON-HIPAA 
COVERED ENTITIES.— 
(1) STUDY.—Not later than one year after the 
date of the enactment of this title, the Secretary, in
621 
consultation with the Federal Trade Commission, 
shall conduct a study, and submit a report under 
paragraph (2), on privacy and security requirements 
for entities that are not covered entities or business 
associates as of the date of the enactment of this 
title, including— 
(A) requirements relating to security, pri-
vacy, and notification in the case of a breach of 
security or privacy (including the applicability 
of an exemption to notification in the case of 
individually identifiable health information that 
has been rendered unusable, unreadable, or in-
decipherable through technologies or methodolo-
gies recognized by appropriate professional or-
ganization or standard setting bodies to provide 
effective security for the information) that 
should be applied to— 
(i) vendors of personal health records; 
(ii) entities that offer products or 
services through the website of a vendor of 
personal health records; 
(iii) entities that are not covered enti-
ties and that offer products or services 
through the websites of covered entities
622 
that offer individuals personal health 
records; 
(iv) entities that are not covered enti-
ties and that access information in a per-
sonal health record or send information to 
a personal health record; and 
(v) third party service providers used 
by a vendor or entity described in clause 
(i), (ii), (iii), or (iv) to assist in providing 
personal health record products or services; 
(B) a determination of which Federal gov-
ernment agency is best equipped to enforce 
such requirements recommended to be applied 
to such vendors, entities, and service providers 
under subparagraph (A); and 
(C) a timeframe for implementing regula-
tions based on such findings. 
(2) REPORT.—The Secretary shall submit to 
the Committee on Finance, the Committee on 
Health, Education, Labor, and Pensions, and the 
Committee on Commerce of the Senate and the 
Committee on Ways and Means and the Committee 
on Energy and Commerce of the House of Rep-
resentatives a report on the findings of the study 
under paragraph (1) and shall include in such report
623 
recommendations on the privacy and security re-
quirements described in such paragraph. 
(c) GUIDANCE ON IMPLEMENTATION SPECIFICATION 
TO DE-IDENTIFY PROTECTED HEALTH INFORMATION.— 
Not later than 12 months after the date of the enactment 
of this title, the Secretary shall, in consultation with stake-
holders, issue guidance on how best to implement the re-
quirements for the de-identification of protected health in-
formation under section 164.514(b) of title 45, Code of 
Federal Regulations. 
(d) GAO REPORT ON TREATMENT DISCLOSURES.— 
Not later than one year after the date of the enactment 
of this title, the Comptroller General of the United States 
shall submit to the Committee on Health, Education, 
Labor, and Pensions of the Senate and the Committee on 
Ways and Means and the Committee on Energy and Com-
merce of the House of Representatives a report on the 
best practices related to the disclosure among health care 
providers of protected health information of an individual 
for purposes of treatment of such individual. Such report 
shall include an examination of the best practices imple-
mented by States and by other entities, such as health 
information exchanges and regional health information or-
ganizations, an examination of the extent to which such 
best practices are successful with respect to the quality
624 
of the resulting health care provided to the individual and 
with respect to the ability of the health care provider to 
manage such best practices, and an examination of the 
use of electronic informed consent for disclosing protected 
health information for treatment, payment, and health 
care operations. 
Subtitle E—Miscellaneous 
Medicare Provisions 
SEC. 4501. MORATORIA ON CERTAIN MEDICARE REGULA-
TIONS. 
(a) DELAY IN PHASE OUT OF MEDICARE HOSPICE 
BUDGET NEUTRALITY ADJUSTMENT FACTOR DURING 
FISCAL YEAR 2009.—Notwithstanding any other provi-
sion of law, including the final rule published on August 
8, 2008, 73 Federal Register 46464 et seq., relating to 
Medicare Program; Hospice Wage Index for Fiscal Year 
2009, the Secretary of Health and Human Services shall 
not phase out or eliminate the budget neutrality adjust-
ment factor in the Medicare hospice wage index before Oc-
tober 1, 2009, and the Secretary shall recompute and 
apply the final Medicare hospice wage index for fiscal year 
2009 as if there had been no reduction in the budget neu-
trality adjustment factor.
625 
(b) NON-APPLICATION OF PHASED-OUT INDIRECT 
MEDICAL EDUCATION (IME) ADJUSTMENT FACTOR FOR 
FISCAL YEAR 2009.— 
(1) IN GENERAL.—Section 412.322 of title 42, 
Code of Federal Regulations, shall be applied with-
out regard to paragraph (c) of such section, and the 
Secretary of Health and Human Services shall re-
compute payments for discharges occurring on or 
after October 1, 2008, as if such paragraph had 
never been in effect. 
(2) NO
EFFECT
ON
SUBSEQUENT
YEARS.— 
Nothing in paragraph (1) shall be construed as hav-
ing any effect on the application of paragraph (d) of 
section 412.322 of title 42, Code of Federal Regula-
tions. 
(c) FUNDING FOR IMPLEMENTATION.—In addition to 
funds otherwise available, for purposes of implementing 
the provisions of subsections (a) and (b), including costs 
incurred in reprocessing claims in carrying out such provi-
sions, the Secretary of Health and Human Services shall 
provide for the transfer from the Federal Hospital Insur-
ance Trust Fund established under section 1817 of the 
Social Security Act (42 U.S.C. 1395i) to the Centers for 
Medicare & Medicaid Services Program Management Ac-
count of $2,000,000 for fiscal year 2009.
626 
SEC. 4502. LONG-TERM CARE HOSPITAL TECHNICAL COR-
RECTIONS. 
(a) PAYMENT.—Subsection (c) of section 114 of the 
Medicare, Medicaid, and SCHIP Extension Act of 2007 
(Public Law 110–173) is amended— 
(1) in paragraph (1)— 
(A) by amending the heading to read as 
follows: ‘‘DELAY IN APPLICATION OF 25 PER-
CENT PATIENT THRESHOLD PAYMENT ADJUST-
MENT’’; 
(B) by striking ‘‘the date of the enactment 
of this Act’’ and inserting ‘‘July 1, 2007,’’; and 
(C) in subparagraph (A), by inserting ‘‘or 
to a long-term care hospital, or satellite facility, 
that as of December 29, 2007, was co-located 
with an entity that is a provider-based, off-cam-
pus location of a subsection (d) hospital which 
did not provide services payable under section 
1886(d) of the Social Security Act at the off- 
campus location’’ after ‘‘freestanding long-term 
care hospitals’’; and 
(2) in paragraph (2)— 
(A) in subparagraph (B)(ii), by inserting 
‘‘or that is described in section 412.22(h)(3)(i) 
of such title’’ before the period; and
627 
(B) in subparagraph (C), by striking ‘‘the 
date of the enactment of this Act’’ and insert-
ing ‘‘October 1, 2007 (or July 1, 2007, in the 
case of a satellite facility described in section 
412.22(h)(3)(i) of title 42, Code of Federal 
Regulations)’’. 
(b) MORATORIUM.—Subsection (d)(3)(A) of such sec-
tion is amended by striking ‘‘if the hospital or facility’’ 
and inserting ‘‘if the hospital or facility obtained a certifi-
cate of need for an increase in beds that is in a State 
for which such certificate of need is required and that was 
issued on or after April 1, 2005, and before December 
29, 2007, or if the hospital or facility’’. 
(c) EFFECTIVE DATE.—The amendments made by 
this section shall be effective and apply as if included in 
the enactment of the Medicare, Medicaid, and SCHIP Ex-
tension Act of 2007 (Public Law 110–173). 
TITLE V—MEDICAID 
PROVISIONS 
SEC. 5000. TABLE OF CONTENTS OF TITLE. 
The table of contents of this title is as follows: 
Sec. 5000. Table of contents of title. 
Sec. 5001. Temporary increase of Medicaid FMAP. 
Sec. 5002. Moratoria on certain regulations. 
Sec. 5003. Transitional Medicaid assistance (TMA). 
Sec. 5004. Protections for Indians under Medicaid and CHIP. 
Sec. 5005. Consultation on Medicaid and CHIP. 
Sec. 5006. Temporary increase in DSH allotments during recession.
628 
SEC. 5001. TEMPORARY INCREASE OF MEDICAID FMAP. 
(a) PERMITTING MAINTENANCE OF FMAP.—Subject 
to subsections (e), (f), and (g), if the FMAP determined 
without regard to this section for a State for— 
(1) fiscal year 2009 is less than the FMAP as 
so determined for fiscal year 2008, the FMAP for 
the State for fiscal year 2008 shall be substituted 
for the State’s FMAP for fiscal year 2009, before 
the application of this section; 
(2) fiscal year 2010 is less than the FMAP as 
so determined for fiscal year 2008 or fiscal year 
2009 (after the application of paragraph (1)), the 
greater of such FMAP for the State for fiscal year 
2008 or fiscal year 2009 shall be substituted for the 
State’s FMAP for fiscal year 2010, before the appli-
cation of this section; and 
(3) fiscal year 2011 is less than the FMAP as 
so determined for fiscal year 2008, fiscal year 2009 
(after the application of paragraph (1)), or fiscal 
year 2010 (after the application of paragraph (2)), 
the greatest of such FMAP for the State for fiscal 
year 2008, fiscal year 2009, or fiscal year 2010 shall 
be substituted for the State’s FMAP for fiscal year 
2011, before the application of this section, but only 
for the first calendar quarter in fiscal year 2011. 
(b) GENERAL 4.9 PERCENTAGE POINT INCREASE.—
629 
(1) IN GENERAL.—Subject to subsections (e), 
(f), and (g) and paragraph (2), for each State for 
calendar quarters during the recession adjustment 
period (as defined in subsection (h)(2)), the FMAP 
(after the application of subsection (a)) shall be in-
creased (without regard to any limitation otherwise 
specified in section 1905(b) of the Social Security 
Act) by 4.9 percentage points. 
(2) SPECIAL ELECTION FOR TERRITORIES.—In 
the case of a State that is not one of the 50 States 
or the District of Columbia, paragraph (1) shall only 
apply if the State makes a one-time election, in a 
form and manner specified by the Secretary and for 
the entire recession adjustment period, to apply the 
increase in FMAP under paragraph (1) and a 10 
percent increase under subsection (d) instead of ap-
plying a 20 percent increase under subsection (d). 
(c) ADDITIONAL ADJUSTMENT TO REFLECT IN-
CREASE IN UNEMPLOYMENT.— 
(1) IN GENERAL.—Subject to subsections (e), 
(f), and (g), in the case of a State that is a high 
unemployment State (as defined in paragraph (2)) 
for a calendar quarter during the recession adjust-
ment period, the FMAP (taking into account the ap-
plication of subsections (a) and (b)) for such quarter
630 
shall be further increased by the high unemployment 
percentage point adjustment specified in paragraph 
(3) for the State for the quarter. 
(2) HIGH UNEMPLOYMENT STATE.— 
(A) IN GENERAL.—In this subsection, sub-
ject to subparagraph (B), the term ‘‘high unem-
ployment State’’ means, with respect to a cal-
endar quarter in the recession adjustment pe-
riod, a State that is 1 of the 50 States or the 
District of Columbia and for which the State 
unemployment increase percentage (as com-
puted under paragraph (5)) for the quarter is 
not less than 1.5 percentage points. 
(B) MAINTENANCE
OF
STATUS.—If a 
State is a high unemployment State for a cal-
endar quarter, it shall remain a high unemploy-
ment State for each subsequent calendar quar-
ter ending before July 1, 2010. 
(3) HIGH UNEMPLOYMENT PERCENTAGE POINT 
ADJUSTMENT.— 
(A) IN
GENERAL.—The high unemploy-
ment percentage point adjustment specified in 
this paragraph for a high unemployment State 
for a quarter is equal to the product of—
631 
(i) the SMAP for such State and 
quarter (determined after the application 
of subsection (a) and before the application 
of subsection (b)); and 
(ii) subject to subparagraph (B), the 
State unemployment reduction factor spec-
ified in paragraph (4) for the State and 
quarter. 
(B) 
MAINTENANCE
OF
ADJUSTMENT 
LEVEL FOR CERTAIN QUARTERS.—In no case 
shall the State unemployment reduction factor 
applied under subparagraph (A)(ii) for a State 
for a quarter (beginning on or after January 1, 
2009, and ending before July 1, 2010) be less 
than the State unemployment reduction factor 
applied to the State for the previous quarter 
(taking into account the application of this sub-
paragraph). 
(4) STATE UNEMPLOYMENT REDUCTION FAC-
TOR.—In the case of a high unemployment State for 
which the State unemployment increase percentage 
(as computed under paragraph (5)) with respect to 
a calendar quarter is— 
(A) not less than 1.5, but is less than 2.5, 
percentage points, the State unemployment re-
632 
duction factor for the State and quarter is 6 
percent; 
(B) not less than 2.5, but is less than 3.5, 
percentage points, the State unemployment re-
duction factor for the State and quarter is 12 
percent; or 
(C) not less than 3.5 percentage points, 
the State unemployment reduction factor for 
the State and quarter is 14 percent. 
(5) COMPUTATION OF STATE UNEMPLOYMENT 
INCREASE PERCENTAGE.— 
(A) IN GENERAL.—In this subsection, the 
‘‘State unemployment increase percentage’’ for 
a State for a calendar quarter is equal to the 
number of percentage points (if any) by 
which— 
(i) the average monthly unemployment 
rate for the State for months in the most 
recent previous 3-consecutive-month period 
for which data are available, subject to 
subparagraph (C); exceeds 
(ii) the lowest average monthly unem-
ployment rate for the State for any 3-con-
secutive-month period preceding the period
633 
described in clause (i) and beginning on or 
after January 1, 2006. 
(B) AVERAGE MONTHLY UNEMPLOYMENT 
RATE DEFINED.—In this paragraph, the term 
‘‘average monthly unemployment rate’’ means 
the average of the monthly number unemployed, 
divided by the average of the monthly civilian 
labor force, seasonally adjusted, as determined 
based on the most recent monthly publications 
of the Bureau of Labor Statistics of the De-
partment of Labor. 
(C) SPECIAL RULE.—With respect to— 
(i) the first 2 calendar quarters of the 
recession adjustment period, the most re-
cent previous 3-consecutive-month period 
described in subparagraph (A)(i) shall be 
the 3-consecutive-month period beginning 
with October 2008; and 
(ii) the last 2 calendar quarters of the 
recession adjustment period, the most re-
cent previous 3-consecutive-month period 
described in such subparagraph shall be 
the 3-consecutive-month period beginning 
with December 2009.
634 
(d) INCREASE IN CAP ON MEDICAID PAYMENTS TO 
TERRITORIES.—Subject to subsections (f) and (g) , with 
respect to entire fiscal years occurring during the reces-
sion adjustment period and with respect to fiscal years 
only a portion of which occurs during such period (and 
in proportion to the portion of the fiscal year that occurs 
during such period), the amounts otherwise determined for 
Puerto Rico, the Virgin Islands, Guam, the Northern Mar-
iana Islands, and American Samoa under subsections (f) 
and (g) of section 1108 of the Social Security Act (42 
U.S.C. 1308) shall each be increased by 20 percent (or, 
in the case of an election under subsection (b)(2), 10 per-
cent). 
(e) SCOPE OF APPLICATION.—The increases in the 
FMAP for a State under this section shall apply for pur-
poses of title XIX of the Social Security Act and— 
(1) the increases applied under subsections (a), 
(b), and (c) shall not apply with respect— 
(A) to payments under parts A, B, and D 
of title IV or title XXI of such Act (42 U.S.C. 
601 et seq. and 1397aa et seq.); 
(B) to payments under title XIX of such 
Act that are based on the enhanced FMAP de-
scribed in section 2105(b) of such Act (42 
U.S.C. 1397ee(b)); and
636 
U.S.C. 1315)) after July 1, 2008, is no longer ineli-
gible under paragraph (1) beginning with the first 
calendar quarter in which the State has reinstated 
eligibility standards, methodologies, or procedures 
that are no more restrictive than the eligibility 
standards, methodologies, or procedures, respec-
tively, under such plan (or waiver) as in effect on 
July 1, 2008. 
(3) SPECIAL RULES.—A State shall not be in-
eligible under paragraph (1)— 
(A) for the calendar quarters before July 
1, 2009, on the basis of a restriction that was 
applied after July 1, 2008, and before the date 
of the enactment of this Act, if the State, prior 
to July 1, 2009, reinstated eligibility standards, 
methodologies, or procedures that are no more 
restrictive than the eligibility standards, meth-
odologies, or procedures, respectively, under 
such plan (or waiver) as in effect on July 1, 
2008; or 
(B) on the basis of a restriction that was 
effective under State law as of July 1, 2008, 
and would have been in effect as of such date, 
but for a delay (of not longer than 1 calendar 
quarter) in the approval of a request for a new
637 
waiver under section 1115 of such Act with re-
spect to such restriction. 
(4) STATE’S APPLICATION TOWARD RAINY DAY 
FUND.—A State is not eligible for an increase in its 
FMAP under subsection (b) or (c), or an increase in 
a cap amount under subsection (d), if any amounts 
attributable (directly or indirectly) to such increase 
are deposited or credited into any reserve or rainy 
day fund of the State. 
(5) RULE
OF
CONSTRUCTION.—Nothing in 
paragraph (1) or (2) shall be construed as affecting 
a State’s flexibility with respect to benefits offered 
under the State Medicaid program under title XIX 
of the Social Security Act (42 U.S.C. 1396 et seq.) 
(including any waiver under such title or under sec-
tion 1115 of such Act (42 U.S.C. 1315)). 
(6) NO
WAIVER
AUTHORITY.—The Secretary 
may not waive the application of this subsection or 
subsection (g) under section 1115 of the Social Se-
curity Act or otherwise. 
(g) REQUIREMENT FOR CERTAIN STATES.—In the 
case of a State that requires political subdivisions within 
the State to contribute toward the non-Federal share of 
expenditures under the State Medicaid plan required 
under section 1902(a)(2) of the Social Security Act (42
638 
U.S.C. 1396a(a)(2)), the State is not eligible for an in-
crease in its FMAP under subsection (a), (b), or (c), or 
an increase in a cap amount under subsection (d), if it 
requires that such political subdivisions pay a greater per-
centage of the non-Federal share of such expenditures for 
quarters during the recession adjustment period, than the 
percentage that would have been required by the State 
under such plan on September 30, 2008, prior to applica-
tion of this section. 
(h) DEFINITIONS.—In this section, except as other-
wise provided: 
(1) FMAP.—The term ‘‘FMAP’’ means the 
Federal medical assistance percentage, as defined in 
section 1905(b) of the Social Security Act (42 
U.S.C. 1396d(b)), as determined without regard to 
this section except as otherwise specified. 
(2) RECESSION
ADJUSTMENT
PERIOD.—The 
term ‘‘recession adjustment period’’ means the pe-
riod beginning on October 1, 2008, and ending on 
December 31, 2010. 
(3) SECRETARY.—The term ‘‘Secretary’’ means 
the Secretary of Health and Human Services. 
(4) SMAP.—The term ‘‘SMAP’’ means, for a 
State, 100 percent minus the Federal medical assist-
ance percentage.
639 
(5) STATE.—The term ‘‘State’’ has the mean-
ing given such term in section 1101(a)(1) of the So-
cial Security Act (42 U.S.C. 1301(a)(1)) for pur-
poses of title XIX of the Social Security Act (42 
U.S.C. 1396 et seq.). 
(i) SUNSET.—This section shall not apply to items 
and services furnished after the end of the recession ad-
justment period. 
SEC. 5002. MORATORIA ON CERTAIN REGULATIONS. 
(a) EXTENSION OF MORATORIA ON CERTAIN MED-
ICAID REGULATIONS.—The following sections are each 
amended by striking ‘‘April 1, 2009’’ and inserting ‘‘July 
1, 2009’’: 
(1) Section 7002(a)(1) of the U.S. Troop Read-
iness, Veterans’ Care, Katrina Recovery, and Iraq 
Accountability Appropriations Act, 2007 (Public 
Law 110–28), as amended by section 7001(a)(1) of 
the Supplemental Appropriations Act, 2008 (Public 
Law 110–252). 
(2) Section 206 of the Medicare, Medicaid, and 
SCHIP Extension Act of 2007 (Public Law 110– 
173), as amended by section 7001(a)(2) of the Sup-
plemental Appropriations Act, 2008 (Public Law 
110–252).
640 
(3) Section 7001(a)(3)(A) of the Supplemental 
Appropriations Act, 2008 (Public Law 110–252). 
(b) ADDITIONAL
MEDICAID
MORATORIUM.—Not-
withstanding any other provision of law, with respect to 
expenditures for services furnished during the period be-
ginning on December 8, 2008 and ending on June 30, 
2009, the Secretary of Health and Human Services shall 
not take any action (through promulgation of regulation, 
issuance of regulatory guidance, use of Federal payment 
audit procedures, or other administrative action, policy, or 
practice, including a Medical Assistance Manual trans-
mittal or letter to State Medicaid directors) to implement 
the final regulation relating to clarification of the defini-
tion of outpatient hospital facility services under the Med-
icaid program published on November 7, 2008 (73 Federal 
Register 66187). 
SEC. 5003. TRANSITIONAL MEDICAID ASSISTANCE (TMA). 
(a) 18-MONTH EXTENSION.— 
(1) IN GENERAL.—Sections 1902(e)(1)(B) and 
1925(f) of the Social Security Act (42 U.S.C. 
1396a(e)(1)(B), 1396r–6(f)) are each amended by 
striking ‘‘September 30, 2003’’ and inserting ‘‘De-
cember 31, 2010’’. 
(2) EFFECTIVE DATE.—The amendments made 
by this subsection shall take effect on July 1, 2009.
641 
(b) STATE OPTION OF INITIAL 12-MONTH ELIGI-
BILITY.—Section 1925 of the Social Security Act (42 
U.S.C. 1396r–6) is amended— 
(1) in subsection (a)(1), by inserting ‘‘but sub-
ject to paragraph (5)’’ after ‘‘Notwithstanding any 
other provision of this title’’; 
(2) by adding at the end of subsection (a) the 
following: 
‘‘(5) OPTION OF 12-MONTH INITIAL ELIGIBILITY 
PERIOD.—A State may elect to treat any reference 
in this subsection to a 6-month period (or 6 months) 
as a reference to a 12-month period (or 12 months). 
In the case of such an election, subsection (b) shall 
not apply.’’; and 
(3) in subsection (b)(1), by inserting ‘‘but sub-
ject to subsection (a)(5)’’ after ‘‘Notwithstanding 
any other provision of this title’’. 
(c) REMOVAL OF REQUIREMENT FOR PREVIOUS RE-
CEIPT OF MEDICAL ASSISTANCE.—Section 1925(a)(1) of 
such Act (42 U.S.C. 1396r–6(a)(1)), as amended by sub-
section (b)(1), is further amended— 
(1) by inserting ‘‘subparagraph (B) and’’ before 
‘‘paragraph (5)’’; 
(2) by redesignating the matter after ‘‘RE-
QUIREMENT.—’’ as a subparagraph (A) with the
642 
heading ‘‘IN GENERAL.—’’ and with the same inden-
tation as subparagraph (B) (as added by paragraph 
(3)); and 
(3) by adding at the end the following: 
‘‘(B) STATE OPTION TO WAIVE REQUIRE-
MENT
FOR
MONTHS
BEFORE
RECEIPT
OF 
MEDICAL ASSISTANCE.—A State may, at its op-
tion, elect also to apply subparagraph (A) in 
the case of a family that was receiving such aid 
for fewer than three months or that had applied 
for and was eligible for such aid for fewer than 
3 months during the 6 immediately preceding 
months described in such subparagraph.’’. 
(d) CMS REPORT ON ENROLLMENT AND PARTICIPA-
TION RATES UNDER TMA.—Section 1925 of such Act (42 
U.S.C. 1396r–6), as amended by this section, is further 
amended by adding at the end the following new sub-
section: 
‘‘(g) COLLECTION AND REPORTING OF PARTICIPA-
TION INFORMATION.— 
‘‘(1) COLLECTION
OF
INFORMATION
FROM 
STATES.—Each State shall collect and submit to the 
Secretary (and make publicly available), in a format 
specified by the Secretary, information on average 
monthly enrollment and average monthly participa-
643 
tion rates for adults and children under this section 
and of the number and percentage of children who 
become ineligible for medical assistance under this 
section whose medical assistance is continued under 
another eligibility category or who are enrolled under 
the State’s child health plan under title XXI. Such 
information shall be submitted at the same time and 
frequency in which other enrollment information 
under this title is submitted to the Secretary. 
‘‘(2) ANNUAL REPORTS TO CONGRESS.—Using 
the information submitted under paragraph (1), the 
Secretary shall submit to Congress annual reports 
concerning enrollment and participation rates de-
scribed in such paragraph.’’. 
(e) EFFECTIVE DATE.—The amendments made by 
subsections (b) through (d) shall take effect on July 1, 
2009. 
SEC. 5004. PROTECTIONS FOR INDIANS UNDER MEDICAID 
AND CHIP. 
(a) PREMIUMS
AND COST SHARING PROTECTION 
UNDER MEDICAID.— 
(1) IN GENERAL.—Section 1916 of the Social 
Security Act (42 U.S.C. 1396o) is amended—
644 
(A) in subsection (a), in the matter pre-
ceding paragraph (1), by striking ‘‘and (i)’’ and 
inserting ‘‘, (i), and (j)’’; and 
(B) by adding at the end the following new 
subsection: 
‘‘(j) NO PREMIUMS OR COST SHARING FOR INDIANS 
FURNISHED ITEMS OR SERVICES DIRECTLY BY INDIAN 
HEALTH PROGRAMS OR THROUGH REFERRAL UNDER 
CONTRACT HEALTH SERVICES.— 
‘‘(1) NO COST SHARING FOR ITEMS OR SERV-
ICES
FURNISHED
TO
INDIANS
THROUGH
INDIAN 
HEALTH PROGRAMS.— 
‘‘(A) IN
GENERAL.—No enrollment fee, 
premium, or similar charge, and no deduction, 
copayment, cost sharing, or similar charge shall 
be imposed against an Indian who is furnished 
an item or service directly by the Indian Health 
Service, an Indian Tribe, Tribal Organization, 
or Urban Indian Organization or through refer-
ral under contract health services for which 
payment may be made under this title. 
‘‘(B) NO REDUCTION IN AMOUNT OF PAY-
MENT TO INDIAN HEALTH PROVIDERS.—Pay-
ment due under this title to the Indian Health 
Service, an Indian Tribe, Tribal Organization,
645 
or Urban Indian Organization, or a health care 
provider through referral under contract health 
services for the furnishing of an item or service 
to an Indian who is eligible for assistance under 
such title, may not be reduced by the amount 
of any enrollment fee, premium, or similar 
charge, or any deduction, copayment, cost shar-
ing, or similar charge that would be due from 
the Indian but for the operation of subpara-
graph (A). 
‘‘(2) RULE
OF
CONSTRUCTION.—Nothing in 
this subsection shall be construed as restricting the 
application of any other limitations on the imposi-
tion of premiums or cost sharing that may apply to 
an individual receiving medical assistance under this 
title who is an Indian.’’. 
(2) 
CONFORMING
AMENDMENT.—Section 
1916A(b)(3) of such Act (42 U.S.C. 1396o–1(b)(3)) 
is amended— 
(A) in subparagraph (A), by adding at the 
end the following new clause: 
‘‘(vi) An Indian who is furnished an 
item or service directly by the Indian 
Health Service, an Indian Tribe, Tribal 
Organization or Urban Indian Organiza-
646 
tion or through referral under contract 
health services.’’; and 
(B) in subparagraph (B), by adding at the 
end the following new clause: 
‘‘(ix) Items and services furnished to 
an Indian directly by the Indian Health 
Service, an Indian Tribe, Tribal Organiza-
tion or Urban Indian Organization or 
through referral under contract health 
services.’’. 
(3) EFFECTIVE DATE.—The amendments made 
by this subsection shall take effect on October 1, 
2009. 
(b) TREATMENT OF CERTAIN PROPERTY FROM RE-
SOURCES FOR MEDICAID AND CHIP ELIGIBILITY.— 
(1) MEDICAID.—Section 1902 of the Social Se-
curity Act (42 U.S.C. 1396a), as amended by sec-
tion 3003(a) of the Health Insurance Assistance for 
the Unemployed Act of 2009, is amended by adding 
at the end the following new subsection: 
‘‘(ee) Notwithstanding any other requirement of this 
title or any other provision of Federal or State law, a State 
shall disregard the following property from resources for 
purposes of determining the eligibility of an individual who 
is an Indian for medical assistance under this title:
647 
‘‘(1) Property, including real property and im-
provements, that is held in trust, subject to Federal 
restrictions, or otherwise under the supervision of 
the Secretary of the Interior, located on a reserva-
tion, including any federally recognized Indian 
Tribe’s reservation, pueblo, or colony, including 
former reservations in Oklahoma, Alaska Native re-
gions established by the Alaska Native Claims Set-
tlement Act, and Indian allotments on or near a res-
ervation as designated and approved by the Bureau 
of Indian Affairs of the Department of the Interior. 
‘‘(2) For any federally recognized Tribe not de-
scribed in paragraph (1), property located within the 
most recent boundaries of a prior Federal reserva-
tion. 
‘‘(3) Ownership interests in rents, leases, royal-
ties, or usage rights related to natural resources (in-
cluding extraction of natural resources or harvesting 
of timber, other plants and plant products, animals, 
fish, and shellfish) resulting from the exercise of fed-
erally protected rights. 
‘‘(4) Ownership interests in or usage rights to 
items not covered by paragraphs (1) through (3) 
that have unique religious, spiritual, traditional, or 
cultural significance or rights that support subsist-
648 
ence or a traditional lifestyle according to applicable 
tribal law or custom.’’. 
(2) APPLICATION TO CHIP.—Section 2107(e)(1) 
of such Act (42 U.S.C. 1397gg(e)(1)) is amended by 
adding at the end the following new subparagraph: 
‘‘(E) Section 1902(ff) (relating to dis-
regard of certain property for purposes of mak-
ing eligibility determinations).’’. 
(c) CONTINUATION OF CURRENT LAW PROTECTIONS 
OF CERTAIN INDIAN PROPERTY FROM MEDICAID ESTATE 
RECOVERY.—Section 1917(b)(3) of the Social Security 
Act (42 U.S.C. 1396p(b)(3)) is amended— 
(1) by inserting ‘‘(A)’’ after ‘‘(3)’’; and 
(2) by adding at the end the following new sub-
paragraph: 
‘‘(B) The standards specified by the Sec-
retary under subparagraph (A) shall require 
that the procedures established by the State 
agency under subparagraph (A) exempt income, 
resources, and property that are exempt from 
the application of this subsection as of April 1, 
2003, under manual instructions issued to carry 
out this subsection (as in effect on such date) 
because of the Federal responsibility for Indian 
Tribes and Alaska Native Villages. Nothing in
649 
this subparagraph shall be construed as pre-
venting the Secretary from providing additional 
estate recovery exemptions under this title for 
Indians.’’. 
SEC. 5005. CONSULTATION ON MEDICAID AND CHIP. 
(a) IN GENERAL.—Section 1139 of the Social Secu-
rity Act (42 U.S.C. 1320b–9) is amended to read as fol-
lows: 
‘‘CONSULTATION WITH TRIBAL TECHNICAL ADVISORY 
GROUP (TTAG) 
‘‘SEC. 1139. The Secretary shall maintain within the 
Centers for Medicaid & Medicare Services (CMS) a Tribal 
Technical Advisory Group, which was first established in 
accordance with requirements of the charter dated Sep-
tember 30, 2003, and the Secretary shall include in such 
Group a representative of the Urban Indian Organizations 
and the Service. The representative of the Urban Indian 
Organization shall be deemed to be an elected officer of 
a tribal government for purposes of applying section 
204(b) of the Unfunded Mandates Reform Act of 1995 
(2 U.S.C. 1534(b)).’’. 
(b) SOLICITATION OF ADVICE UNDER MEDICAID AND 
CHIP.— 
(1) MEDICAID STATE PLAN AMENDMENT.—Sec-
tion 1902(a) of the Social Security Act (42 U.S.C. 
1396a(a)) is amended—
650 
(A) in paragraph (70), by striking ‘‘and’’ 
at the end; 
(B) in paragraph (71), by striking the pe-
riod at the end and inserting ‘‘; and’’; and 
(C) by inserting after paragraph (71), the 
following new paragraph: 
‘‘(72) in the case of any State in which 1 or 
more Indian Health Programs or Urban Indian Or-
ganizations furnishes health care services, provide 
for a process under which the State seeks advice on 
a regular, ongoing basis from designees of such In-
dian Health Programs and Urban Indian Organiza-
tions on matters relating to the application of this 
title that are likely to have a direct effect on such 
Indian Health Programs and Urban Indian Organi-
zations and that— 
‘‘(A) shall include solicitation of advice 
prior to submission of any plan amendments, 
waiver requests, and proposals for demonstra-
tion projects likely to have a direct effect on In-
dians, Indian Health Programs, or Urban In-
dian Organizations; and 
‘‘(B) may include appointment of an advi-
sory committee and of a designee of such In-
dian Health Programs and Urban Indian Orga-
651 
nizations to the medical care advisory com-
mittee advising the State on its State plan 
under this title.’’. 
(2) APPLICATION TO CHIP.—Section 2107(e)(1) 
of such Act (42 U.S.C. 1397gg(e)(1)), as amended 
by section 5004(b), is amended by adding at the end 
the following new subparagraph: 
‘‘(F) Section 1902(a)(72) (relating to re-
quiring certain States to seek advice from des-
ignees of Indian Health Programs and Urban 
Indian Organizations).’’. 
(c) RULE
OF
CONSTRUCTION.—Nothing in the 
amendments made by this section shall be construed as 
superseding existing advisory committees, working groups, 
guidance, or other advisory procedures established by the 
Secretary of Health and Human Services or by any State 
with respect to the provision of health care to Indians. 
SEC. 5006. TEMPORARY INCREASE IN DSH ALLOTMENTS 
DURING RECESSION. 
Section 1923(f)(3) of the Social Security Act (42 
U.S.C. 1396r–4(f)(3)) is amended— 
(1) in subparagraph (A), by striking ‘‘para-
graph (6)’’ and inserting ‘‘paragraph (6) and sub-
paragraph (E)’’; and
652 
(2) by adding at the end the following new sub-
paragraph: 
‘‘(E) TEMPORARY
INCREASE
IN
ALLOT-
MENTS DURING RECESSION.— 
‘‘(i) IN GENERAL.—Subject to clause 
(ii), the DSH allotment for any State— 
‘‘(I) for fiscal year 2009 is equal 
to 102.5 percent of the DSH allot-
ment that would be determined under 
this paragraph for the State for fiscal 
year 2009 without application of this 
subparagraph, notwithstanding sub-
paragraph (B); 
‘‘(II) for fiscal year 2010 is equal 
to 102.5 percent of the DSH allot-
ment for the State for fiscal year 
2009, as determined under subclause 
(I); and 
‘‘(III) for each succeeding fiscal 
year is equal to the DSH allotment 
for the State under this paragraph de-
termined without applying subclauses 
(I) and (II). 
‘‘(ii) APPLICATION.—Clause (i) shall 
not apply to a State for a year in the case
653 
that the DSH allotment for such State for 
such year under this paragraph determined 
without applying clause (i) would grow 
higher than the DSH allotment specified 
under clause (i) for the State for such 
year.’’. 
TITLE VI—BROADBAND 
COMMUNICATIONS 
SEC. 6001. INVENTORY OF BROADBAND SERVICE CAPA-
BILITY AND AVAILABILITY. 
(a) ESTABLISHMENT.—To provide a comprehensive 
nationwide inventory of existing broadband service capa-
bility and availability, the National Telecommunications 
and Information Administration (‘‘NTIA’’) shall develop 
and maintain a broadband inventory map of the United 
States that identifies and depicts the geographic extent 
to which broadband service capability is deployed and 
available from a commercial provider or public provider 
throughout each State. 
(b) PUBLIC AVAILABILITY AND INTERACTIVITY.— 
Not later than 2 years after the date of enactment of this 
Act, the NTIA shall make the broadband inventory map 
developed and maintained pursuant to this section acces-
sible by the public on a World Wide Web site of the NTIA 
in a form that is interactive and searchable.
654 
SEC. 6002. WIRELESS AND BROADBAND DEPLOYMENT 
GRANT PROGRAMS. 
(a) GRANTS AUTHORIZED.— 
(1) IN GENERAL.—The National Telecommuni-
cations and Information Administration (‘‘NTIA’’) 
is authorized to carry out a program to award 
grants to eligible entities for the non-recurring costs 
associated with the deployment of broadband infra-
structure in rural, suburban, and urban areas, in ac-
cordance with the requirements of this section. 
(2) PROGRAM WEBSITE.—The NTIA shall de-
velop and maintain a website to make publicly avail-
able information about the program described in 
paragraph (1), including— 
(A) each prioritization report submitted by 
a State under subsection (b); 
(B) a list of eligible entities that have ap-
plied for a grant under this section, and the 
area or areas the entity proposes to serve; and 
(C) the status of each such application, 
whether approved, denied, or pending. 
(b) STATE PRIORITIES.— 
(1) PRIORITIES
REPORT
SUBMISSION.—Not 
later than 75 days after the date of enactment of 
this section, each State intending to participate in 
the program under this section shall submit to the
655 
NTIA a report indicating the geographic areas of 
the State which— 
(A) for the purposes of determining the 
need for Wireless Deployment Grants under 
subsection (c), the State considers to have the 
greatest priority for— 
(i) wireless voice service in unserved 
areas; and 
(ii) advanced wireless broadband serv-
ice in underserved areas; and 
(B) for the purposes of determining the 
need for Broadband Deployment Grants under 
subsection (d), the State considers to have the 
greatest priority for— 
(i) 
basic 
broadband 
service 
in 
unserved areas; and 
(ii) advanced broadband service in un-
derserved areas. 
(2) LIMITATION.—The unserved and under-
served areas identified by a State in the report re-
quired by this subsection shall not represent, in the 
aggregate, more than 20 percent of the population 
of such State. 
(c) WIRELESS DEPLOYMENT GRANTS.—
656 
(1) AUTHORIZED ACTIVITY.—The NTIA shall 
award Wireless Deployment Grants in accordance 
with this subsection from amounts authorized for 
Wireless Deployment Grants by this subtitle to eligi-
ble entities to deploy necessary infrastructure for the 
provision of wireless voice service or advanced wire-
less broadband service to end users in designated 
areas. 
(2) GRANT
DISTRIBUTION.—The NTIA shall 
seek to distribute grants, to the extent possible, so 
that 25 percent of the grants awarded under this 
subsection shall be awarded to eligible entities for 
providing wireless voice service to unserved areas 
and 75 percent of grants awarded under this sub-
section shall be awarded to eligible entities for pro-
viding advanced wireless broadband service to under-
served areas. 
(d) BROADBAND DEPLOYMENT GRANTS.— 
(1) AUTHORIZED ACTIVITY.—The NTIA shall 
award Broadband Deployment Grants in accordance 
with this subsection from amounts authorized for 
Broadband Deployment Grants by this subtitle to el-
igible entities to deploy necessary infrastructure for 
the provision of basic broadband service or advanced 
broadband service to end users in designated areas.
657 
(2) GRANT
DISTRIBUTION.—The NTIA shall 
seek to distribute grants, to the extent possible, so 
that 25 percent of the grants awarded under this 
subsection shall be awarded to eligible entities for 
providing basic broadband service to unserved areas 
and 75 percent of grants awarded under this sub-
section shall be awarded to eligible entities for pro-
viding advanced broadband service to underserved 
areas. 
(e) GRANT REQUIREMENTS.—The NTIA shall— 
(1) adopt rules to protect against unjust enrich-
ment; and 
(2) ensure that grant recipients— 
(A) meet buildout requirements; 
(B) maximize use of the supported infra-
structure by the public; 
(C) operate basic and advanced broadband 
service networks on an open access basis; 
(D) operate advanced wireless broadband 
service on a wireless open access basis; and 
(E) adhere to the principles contained in 
the Federal Communications Commission’s 
broadband policy statement (FCC 05–151, 
adopted August 5, 2005). 
(f) APPLICATIONS.—
658 
(1) SUBMISSION.—To be considered for a grant 
awarded under subsection (c) or (d), an eligible enti-
ty shall submit to the NTIA an application at such 
time, in such manner, and containing such informa-
tion and assurances as the NTIA may require. Such 
an application shall include— 
(A) a cost-study estimate for serving the 
particular geographic area to be served by the 
entity; 
(B) a proposed build-out schedule to resi-
dential households and small businesses in the 
area; 
(C) for applicants for Wireless Deployment 
Grants under subsection (c), a build-out sched-
ule for geographic coverage of such areas; and 
(D) any other requirements the NTIA 
deems necessary. 
(2) SELECTION.— 
(A) NOTIFICATION.—The NTIA shall no-
tify each eligible entity that has submitted a 
complete application whether the entity has 
been approved or denied for a grant under this 
section in a timely fashion.