I 
112TH CONGRESS 
2D SESSION 
H. R. 6043 
To amend the Public Health Service Act and the Social Security Act to 
extend health information technology assistance eligibility to behavioral 
health, mental health, and substance abuse professionals and facilities, 
and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JUNE 27, 2012 
Mr. MURPHY of Pennsylvania (for himself, Mr. RYAN of Ohio, Mr. MARINO, 
Mr. SULLIVAN, Mrs. BLACKBURN, and Mr. TIBERI) introduced the fol-
lowing bill; which was referred to the Committee on Energy and Com-
merce, and in addition to the Committee on Ways and Means, for a pe-
riod to be subsequently determined by the Speaker, in each case for con-
sideration of such provisions as fall within the jurisdiction of the com-
mittee concerned 
A BILL 
To amend the Public Health Service Act and the Social 
Security Act to extend health information technology as-
sistance eligibility to behavioral health, mental health, 
and substance abuse professionals and facilities, and for 
other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Behavioral Health In-
formation Technology Act of 2012’’. 
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SEC. 2. EXTENSION OF HEALTH INFORMATION TECH-
NOLOGY ASSISTANCE FOR BEHAVIORAL AND 
MENTAL HEALTH AND SUBSTANCE ABUSE. 
Section 3000(3) of the Public Health Service Act (42 
U.S.C. 300jj(3)) is amended by inserting before ‘‘and any 
other category’’ the following: ‘‘behavioral and mental 
health 
professionals 
(as 
defined 
in 
section 
331(a)(3)(E)(i)), a substance abuse professional, a psy-
chiatric hospital (as defined in section 1861(f) of the So-
cial Security Act (42 U.S.C. 1395x(f))), a community 
mental health center meeting the criteria specified in sec-
tion 1913(c), a residential or outpatient mental health or 
substance abuse treatment facility,’’. 
SEC. 3. EXTENSION OF ELIGIBILITY FOR MEDICARE AND 
MEDICAID 
HEALTH 
INFORMATION 
TECH-
NOLOGY IMPLEMENTATION ASSISTANCE. 
(a) PAYMENT INCENTIVES FOR ELIGIBLE PROFES-
SIONALS UNDER MEDICARE.—Section 1848 of the Social 
Security Act (42 U.S.C. 1395w–4) is amended— 
(1) by amending clause (iii) of subsection 
(a)(7)(E) to read as follows: 
‘‘(iii) ELIGIBLE PROFESSIONAL.—The 
term ‘eligible professional’ means any of 
the following: 
‘‘(I) A physician (as defined in 
section 1861(r)). 
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‘‘(II) A clinical psychologist pro-
viding qualified psychologist services 
(as defined in section 1861(ii)).’’; and 
(2) by amending subparagraph (C) of sub-
section (o)(5) to read as follows: 
‘‘(C) ELIGIBLE PROFESSIONAL.—The term 
‘eligible professional’ means any of the fol-
lowing: 
‘‘(i) A physician (as defined in section 
1861(r)). 
‘‘(ii) A clinical psychologist providing 
qualified psychologist services (as defined 
in section 1861(ii)).’’. 
(b) ELIGIBLE HOSPITALS.—Section 1886(n)(6)(B) 
of the Social Security Act (42 U.S.C. 1395ww(n)(6)(B)) 
is amended by inserting before the period at the end the 
following: ‘‘or an inpatient hospital that is a psychiatric 
hospital (as defined in section 1861(f))’’. 
(c) MEDICAID PROVIDERS.—Section 1903(t) of the 
Social Security Act (42 U.S.C. 1396b(t)) is amended as 
follows: 
(1) Paragraph (2)(B) is amended— 
(A) in clause (i), by striking ‘‘, or’’ and in-
serting a semicolon; 
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(B) in clause (ii), by striking the period 
and inserting a semicolon; and 
(C) by adding after clause (ii) the following 
new clauses: 
‘‘(iii) a public hospital that is prin-
cipally a psychiatric hospital (as defined in 
section 1861(f)); 
‘‘(iv) a private hospital that is prin-
cipally a psychiatric hospital (as defined in 
section 1861(f)) and that has at least 10 
percent of its patient volume (as estimated 
in accordance with a methodology estab-
lished by the Secretary) attributable to in-
dividuals 
receiving 
medical 
assistance 
under this title; 
‘‘(v) a community mental health cen-
ter meeting the criteria specified in section 
1913(c) of the Public Health Service Act; 
or 
‘‘(vi) a residential or outpatient men-
tal health or substance abuse treatment fa-
cility that— 
‘‘(I) is accredited by the Joint 
Commission 
on 
Accreditation 
of 
Healthcare Organizations, the Com-
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mission on Accreditation of Rehabili-
tation Facilities, the Council on Ac-
creditation, or any other national ac-
crediting agency recognized by the 
Secretary; and 
‘‘(II) has at least 10 percent of 
its patient volume (as estimated in ac-
cordance with a methodology estab-
lished by the Secretary) attributable 
to individuals receiving medical assist-
ance under this title.’’. 
(2) Paragraph (3)(B) is amended— 
(A) in clause (iv), by striking ‘‘and’’ after 
the semicolon; 
(B) in clause (v), by striking the period 
and inserting ‘‘; and’’; and 
(C) by adding at the end the following new 
clause: 
‘‘(vi) clinical psychologist providing 
qualified psychologist services (as defined 
in section 1861(ii)), if such clinical psy-
chologist is practicing in an outpatient 
clinic that— 
‘‘(I) is led by a clinical psycholo-
gist; and 
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‘‘(II) is not otherwise receiving 
payment under paragraph (1) as a 
Medicaid provider described in para-
graph (2)(B).’’. 
SEC. 4. PROVIDING PROTECTIONS FOR CERTAIN PRO-
VIDERS, VENDORS, AND USERS OF CERTIFIED 
EHR TECHNOLOGY. 
(a) COVERED ENTITIES.— 
(1) COVERED ENTITIES.—For purposes of this 
subsection, a covered entity means, with respect to 
certified EHR technology (as defined in section 
1848(o)(4) of the Social Security Act) and a year, 
any of the following: 
(A) MEANINGFUL EHR USERS.—Any of the 
following, with respect to such year: 
(i) An eligible professional (as defined 
in paragraph (5)(C) of section 1848(o) of 
the Social Security Act) determined to be 
a meaningful EHR user under paragraph 
(2) of such section for the EHR reporting 
period (as defined in paragraph (5)(B) of 
such section) during such year. 
(ii) In the case of a qualifying MA or-
ganization (as defined in paragraph (5) of 
section 1853(l) of such Act), an eligible 
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EHR reporting period (as defined in para-
graph (6)(A) of such section) for a cost re-
porting period beginning during such year. 
(vi) A Medicaid provider (as defined 
in paragraph (2) of section 1903(t) of such 
Act) eligible for payments described in 
paragraph (1) of such section for such 
year. 
(B) HEALTH
INFORMATION
EXCHANGE 
ENTITIES.—Individuals and entities (other than 
States or State designated entities) which dur-
ing such year are health information exchange 
contractors (consisting of technology providers), 
health information exchange participants (con-
sisting of organizations providing supportive 
technology to a health information exchange), 
and other users of health information exchanges 
(consisting of other entities that may be ex-
changing clinical or administrative data). Man-
ufacturers of EHR Software and other health 
information technologies who participate in the 
reporting of adverse events or who otherwise 
contribute relevant patient safety work product 
under subsection (c)(1) of this Act. 
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(C) CERTAIN
OTHER
EHR
USERS.—A 
health care professional who, during such 
year— 
(i) is a user of such certified EHR 
technology; 
(ii) is not eligible for incentive pay-
ments based on meaningful use of such 
technology under title XVIII or XIX of the 
Social Security Act solely because the pro-
fessional is not— 
(I) an eligible professional (as de-
fined in paragraph (5)(C) of section 
1848(o) of such Act); 
(II) an eligible professional de-
scribed in paragraph (2) of section 
1853(l) of such Act, with respect to a 
qualifying MA organization (as de-
fined in paragraph (5) of such sec-
tion); 
(III) an eligible hospital de-
scribed in section 1853(m)(2) of such 
Act, with respect to such a qualifying 
MA organization; 
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(IV) an eligible hospital (as de-
fined in paragraph (6)(B) of section 
1886(n) of such Act); 
(V) a critical access hospital; or 
(VI) a Medicaid provider (as de-
fined in paragraph (2) of section 
1903(t) of such Act); and 
(iii) attests, to the satisfaction of the 
Secretary, that but for the reason de-
scribed in clause (ii), the professional 
would otherwise satisfy criteria to be eligi-
ble for such incentive payments during 
such year. 
(b) IMPROVING PATIENT SAFETY THROUGH ERROR 
REPORTING AND REMEDIATION, AND CLARIFICATION OF 
AUTHORITY.— 
(1) IN GENERAL.—A covered entity may submit 
to a Patient Safety Organization as defined in sec-
tion 921. Title IX of the Public Health Service Act 
(42 U.S.C. 299 et seq.) information on EHR-related 
adverse events with respect to certified EHR tech-
nology as defined in section 3001 of the Public 
Health Service Act (42 U.S.C. 300jj–11) used or 
provided by such entity, as applicable. The utiliza-
tion of patient safety work product shall be for the 
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purpose of providing direct feedback and assistance 
to covered entities to effectively minimize patient 
risk. Patient Safety Organizations may furnish the 
Office of the National Coordinator de-identified re-
ports of their findings for the purposes of tracking 
the number and nature of such adverse events. 
(2) APPLICATION
OF
SAFETY
ORGANIZATION 
PRIVILEGE AND CONFIDENTIALITY PROTECTIONS.— 
In the case of a covered entity that submits to such 
a body information on such an adverse event and in 
the case of the collection and maintenance of such 
information by such a body, the provisions of section 
922 of the Public Health Service Act shall apply to 
such information and to the body and the entity in 
the same manner such provisions apply to patient 
safety work product and a patient safety organiza-
tion and provider under part C of title IX of such 
Act. 
(3) CLARIFICATION OF AUTHORITY.—Certified 
EHR’s shall not be considered a device for purposes 
of the Federal Food, Drug, and Cosmetic Act (21 
U.S.C. 301 et seq.). 
(c) RULES RELATING
TO E-DISCOVERY.—In any 
health care lawsuit against a covered entity that is related 
to an EHR-related adverse event, with respect to certified 
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EHR technology used or provided by the covered entity, 
electronic discovery shall be limited to— 
(1) information that is related to such EHR-re-
lated adverse event; and 
(2) information from the period in which such 
EHR-related adverse event occurred. 
(d) LEGAL
PROTECTIONS
FOR
COVERED
ENTI-
TIES.— 
(1) GENERAL.—For a covered entity described 
in subsection (b), the following protections apply: 
(A) ENCOURAGING
SPEEDY
RESOLUTION 
OF CLAIMS.— 
(i) GENERAL.—A claimant may not 
commence a health care lawsuit against a 
covered entity on any date that is 3 years 
after the date of manifestation of injury or 
1 year after the claimant discovers, or 
through the use of reasonable diligence 
should have discovered, the injury, which-
ever occurs first. This limitation shall be 
tolled to the extent that the claimant is 
able to prove— 
(I) fraud; 
(II) intentional concealment; or 
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(III) the presence of a foreign 
body, which has no therapeutic or di-
agnostic purpose or effect, in the per-
son of the injured person. 
(ii) TREATMENT
OF
A
MINOR.—A 
health care lawsuit by or on behalf of a 
claimant under the age of 17 years at the 
time the injury was suffered may not be 
commenced after the date that is not later 
than 3 years after the date of the alleged 
manifestation of injury except that actions 
by a claimant under the full age of 6 years 
shall be commenced not later than 3 years 
after the date of manifestation of injury or 
prior to the claimant’s 8th birthday, which-
ever provides a longer period. In addition 
to subparagraph (A)(i)(I)–(III), this limi-
tation shall be tolled for claimants under 
the age of 17 years for any period during 
which a parent or guardian and a health 
care provider or health care organization 
have committed fraud or collusion in the 
failure to bring an action on behalf of the 
claimant. 
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(B) EQUITABLE ASSIGNMENT OF RESPON-
SIBILITY.—In any health care lawsuit against a 
covered entity— 
(i) each party to the lawsuit other 
than the claimant that is such a covered 
entity shall be liable for that party’s sev-
eral share of any damages only and not for 
the share of any other person and such 
several share shall be in direct proportion 
to that party’s proportion of responsibility 
for the injury, as determined under clause 
(iii); 
(ii) whenever a judgment of liability is 
rendered as to any such party, a separate 
judgment shall be rendered against each 
such party for the amount allocated to 
such party; and 
(iii) for purposes of this subpara-
graph, the trier of fact shall determine the 
proportion of responsibility of each such 
party for the claimant’s harm. 
(C) SUBSEQUENT REMEDIAL MEASURES.— 
Evidence of subsequent remedial measures to 
an EHR-related adverse event with respect to 
certified EHR technology used or provided by 
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the covered entity (including changes to the cer-
tified EHR system, additional training require-
ments, or changes to standard operating proce-
dures) by a covered entity shall not be admis-
sible in health care lawsuits. 
(D) INCREASED BURDEN OF PROOF PRO-
TECTION
FOR
COVERED
ENTITIES.—Punitive 
damages may, if otherwise permitted by appli-
cable State or Federal law, be awarded against 
any covered entity in a health care lawsuit only 
if it is proven by clear and convincing evidence 
that such entity acted with reckless disregard 
for the health or safety of the claimant. In any 
such health care lawsuit where no judgment for 
compensatory damages is rendered against such 
entity, no punitive damages may be awarded 
with respect to the claim in such lawsuit. 
(E) PROTECTION FROM LIBEL OR SLAN-
DER.—Covered entities and employees, agents 
and representatives of covered entities are im-
mune from civil action for libel or slander aris-
ing from information or entries made in cer-
tified EHR technology and for the transfer of 
such information to another eligible provider, 
hospital or health information exchange, if the 
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information, transfer of information, or entries 
were made in good faith and without malice. 
(e) DEFINITIONS.— 
(1) CLAIMANT.—The term ‘‘claimant’’ means 
any person who brings a health care lawsuit, includ-
ing a person who asserts or claims a right to legal 
or equitable contribution, indemnity, or subrogation, 
arising out of a health care liability claim or action, 
and any person on whose behalf such a claim is as-
serted or such an action is brought, whether de-
ceased, incompetent, or a minor. 
(2) 
COMPENSATORY
DAMAGES.—The 
term 
‘‘compensatory damages’’ means objectively verifi-
able monetary losses incurred as a result of the pro-
visions of, use of, or payment for (or failure to pro-
vide, use, or pay for) health care services or medical 
products, such as past and future medical expenses, 
loss of past and future earnings, cost of obtaining 
domestic services, loss of employment, and loss of 
business or employment opportunities, damages for 
physical and emotional pain, suffering, inconven-
ience, physical impairment, mental anguish, dis-
figurement, loss of enjoyment in life, loss of society 
and companionship, loss of consortium (other than 
loss of domestic service), hedonic damages, injury to 
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reputation, and all other nonpecuniary losses of any 
kind or nature. Such term includes economic dam-
ages and noneconomic damages, as such terms as 
defined in this subsection. 
(3) ECONOMIC DAMAGES.—The term ‘‘economic 
damages’’ means objectively verifiable monetary 
losses incurred as a result of the provisions of, use 
of, or payment for (or failure to provide, use, or pay 
for) health care services or medical products, such as 
past and future medical expenses, loss of past and 
future earnings, cost of obtaining domestic services, 
loss of employment, and loss of business or employ-
ment opportunities. 
(4) CERTIFIED EHR TECHNOLOGY.—The term 
‘‘certified EHR technology’’ has the meaning given 
such term in section 1848(o)(4) of the Social Secu-
rity Act. 
(5) EHR–RELATED
ADVERSE
EVENT.—The 
term ‘‘EHR-related adverse event’’ means, with re-
spect to a provider, a defect, malfunction, or error 
in the certified health information technology or 
electronic health record used by the provider, or in 
the input or output of data maintained through such 
technology or record, that results or could reason-
ably result in harm to a patient. 
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(6) 
HEALTH
CARE
LAWSUIT.—The 
term 
‘‘health care lawsuit’’ means any health care liability 
claim concerning the provision of health care items 
or services or any medical product affecting inter-
state commerce, or any health care liability action 
concerning the provision of health care items or 
services or any medical product affecting interstate 
commerce, brought in a State or Federal court or 
pursuant to an alternative dispute resolution system, 
against a health care provider, a health care organi-
zation, or the manufacturer, distributor, supplier, 
marketer, promoter, or seller of a medical product, 
regardless of the theory of liability on which the 
claim is based, or the number of claimants, plain-
tiffs, defendants, or other parties, or the number of 
claims or causes of action, in which the claimant al-
leges a health care liability claim. Such term does 
not include a claim or action which is based on 
criminal liability; which seeks civil fines or penalties 
paid to Federal, State, or local government; or which 
is grounded in antitrust. 
(7) HEALTH
CARE
LIABILITY
ACTION.—The 
term ‘‘health care liability action’’ means a civil ac-
tion brought in a State or Federal court or pursuant 
to an alternative dispute resolution system, against 
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a health care provider, a health care organization, or 
the manufacturer, distributor, supplier, marketer, 
promoter, or seller of a medical product, regardless 
of the theory of liability on which the claim is based, 
or the number of plaintiffs, defendants, or other par-
ties, or the number of causes of action, in which the 
claimant alleges a health care liability claim. 
(8) HEALTH
CARE
LIABILITY
CLAIM.—The 
term ‘‘health care liability claim’’ means a demand 
by any person, whether or not pursuant to alter-
native dispute resolution, against a health care pro-
vider, health care organization, or the manufacturer, 
distributor, supplier, marketer, promoter, or seller of 
a medical product, including third-party claims, 
cross-claims, counter-claims, or contribution claims, 
which are based upon the provision of, use of, or 
payment for (or the failure to provide, use or pay 
for) health care services or medical products, regard-
less of the theory of liability on which the claim is 
based, or the number of plaintiffs, defendants, or 
other parties, or the number of causes of action. 
(9) HEALTH CARE ORGANIZATION.—The term 
‘‘health care organization’’ means any person or en-
tity which is obligated to provide or pay for health 
benefits under any health plan, including any person 
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intended for humans, and the terms ‘‘drug’’, ‘‘de-
vice’’, and ‘‘biological product’’ have the meanings 
given such terms in sections 201(g)(1) and 201(h) 
of the Federal Food, Drug, and Cosmetic Act (21 
U.S.C. 321(g)(1) and (h)) and section 351(a) of the 
Public Health Service Act (42 U.S.C. 262(a)), re-
spectively, including any component or raw material 
used therein, but excluding health care services. 
(14) 
NONECONOMIC
DAMAGES.—The 
term 
‘‘noneconomic damages’’ means damages for phys-
ical impairment, mental anguish, disfigurement, loss 
of enjoyment of life, loss of society and companion-
ship, loss of consortium (other than loss of domestic 
service), hedonic damages, injury to reputation, and 
all other nonpecuniary losses of any kind of nature. 
(15) PUNITIVE DAMAGES.—The term ‘‘punitive 
damages’’ means damages awarded, for the purpose 
of punishment or deterrence, and not solely for com-
pensatory purposes, against a health care provider, 
health care organization, or a manufacturer, dis-
tributor, or supplier of a medical product. Punitive 
damages are neither economic nor economic dam-
ages. 
(16) STATE.—The term ‘‘State’’ means each of 
the several States, District of Columbia, the Com-
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monwealth of Puerto Rico, the Virgin Islands, 
Guam, American Samoa, the Northern Mariana Is-
lands, the Trust Territory of the Pacific Islands, and 
any other territory or possession of the United 
States, or any political subdivision thereof. 
Æ 
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