562
Title VI, Subtitle E
lating to health research), or 6417 (relating to emer-
gency circumstances); or
(3) is necessary for the purpose of providing for
payment for health care that has been provided to
an individual.
SEC. 6443. STANDARDS FOR ELECTRONIC DOCUMENTS AND
COMMUNICATIONS.
(a) STANDARDS.—Not later than July 1, 1996, the
Secretary, after notice and opportunity for public com-
ment and in consultation with appropriate private stand-
ard-setting organizations and other interested parties,
shall establish standards with respect to the creation,
transmission, receipt, and maintenance, in electronic and
magnetic form, of each type of written document specifi-
cally required or authorized under this subtitle. Where a
signature is required under any other provision of this
part, such standards shall provide for an electronic or
magnetic substitute that serves the functional equivalent
of a signature.
(b) TREATMENT OF COMPLYING DOCUMENTS AND
COMMUNICATIONS.—An electronic or magnetic document
or communication that satisfies the standards established
under subsection (a) with respect to such document or
communication shall be treated as satisfying the require-
563
Title VI, Subtitle E
ments of this subtitle that apply to an equivalent written
document.
SEC. 6444. DUTIES AND AUTHORITIES OF AFFILIATED PER-
SONS.
(a) REQUIREMENTS ON TRUSTEES.—
(1) PROVISION OF INFORMATION.—A health in-
formation trustee may provide protected health in-
formation to a person who, with respect to the trust-
ee, is an affiliated person and may permit the affili-
ated person to use such information, only for the
purpose of conducting, supporting, or facilitating an
activity that the trustee is authorized to undertake.
(2) NOTICE TO AFFILIATED PERSON.—A health
information trustee shall notify a person who, with
respect to the trustee, is an affiliated person of any
duties under this subtitle that the affiliated person
is required to fulfill and of any authorities under
this subtitle that the affiliated person is authorized
to exercise.
(b) DUTIES OF AFFILIATED PERSONS.—
(1) IN
GENERAL.—An affiliated person shall
fulfill any duty under this subtitle that—
(A) the health information trustee with
whom the person has an agreement or relation-
564
Title VI, Subtitle E
ship described in section 6400(c)(1)(C) is re-
quired to fulfill; and
(B) the person has undertaken to fulfill
pursuant to such agreement or relationship.
(2) CONSTRUCTION
OF
OTHER
PARTS.—With
respect to a duty described in paragraph (1) that an
affiliated person is required to fulfill, the person
shall be considered a health information trustee for
purposes of this subtitle. The person shall be subject
to part 5 (relating to enforcement) with respect to
any such duty that the person fails to fulfill.
(3) EFFECT ON TRUSTEE.—An agreement or
relationship with an affiliated person does not relieve
a health information trustee of any duty or liability
under this subtitle.
(c) AUTHORITIES OF AFFILIATED PERSONS.—
(1) IN
GENERAL.—An affiliated person may
only exercise an authority under this subtitle that
the health information trustee with whom the person
is affiliated may exercise and that the person has
been given by the trustee pursuant to an agreement
or relationship described in section 6400(c)(1)(C).
With respect to any such authority, the person shall
be considered a health information trustee for pur-
poses of this subtitle. The person shall be subject to
565
Title VI, Subtitle E
part 5 (relating to enforcement) with respect to any
act that exceeds such authority.
(2) EFFECT ON TRUSTEE.—An agreement or
relationship with an affiliated person does not affect
the authority of a health information trustee under
this subtitle.
SEC. 6445. AGENTS AND ATTORNEYS.
(a) IN GENERAL.—Except as provided in subsections
(b) and (c), a person who is authorized by law (on grounds
other than an individual’s minority), or by an instrument
recognized under law, to act as an agent, attorney, proxy,
or other legal representative for a protected individual or
the estate of a protected individual, or otherwise to exer-
cise the rights of the individual or estate, may, to the ex-
tent authorized, exercise and discharge the rights of the
individual or estate under this subtitle.
(b) HEALTH CARE POWER OF ATTORNEY.—A person
who is authorized by law (on grounds other than an indi-
vidual’s minority), or by an instrument recognized under
law, to make decisions about the provision of health care
to an individual who is incapacitated may exercise and dis-
charge the rights of the individual under this subtitle to
the extent necessary to effectuate the terms or purposes
of the grant of authority.
566
Title VI, Subtitle E
(c) NO COURT DECLARATION.—If a health care pro-
vider determines that an individual, who has not been de-
clared to be legally incompetent, suffers from a medical
condition that prevents the individual from acting know-
ingly or effectively on the individual’s own behalf, the right
of the individual to authorize disclosure under section
6412 may be exercised and discharged in the best interest
of the individual by—
(1) a person described in subsection (b) with re-
spect to the individual;
(2) a person described in subsection (a) with re-
spect to the individual, but only if a person de-
scribed in paragraph (1) cannot be contacted after
a reasonable effort;
(3) the next of kin of the individual, but only
if a person described in paragraph (1) or (2) cannot
be contacted after a reasonable effort; or
(4) the health care provider, but only if a per-
son described in paragraph (1), (2), or (3) cannot be
contacted after a reasonable effort.
SEC. 6446. MINORS.
(a) INDIVIDUALS WHO ARE 18 OR LEGALLY CAPA-
BLE.—In the case of an individual—
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Title VI, Subtitle E
(1) who is 18 years of age or older, all rights
of the individual shall be exercised by the individual,
except as provided in section 6445; or
(2) who, acting alone, has the legal capacity to
apply for and obtain health care and has sought
such care, the individual shall exercise all rights of
an individual under this subtitle with respect to pro-
tected health information relating to such care.
(b) INDIVIDUALS UNDER 18.—Except as provided in
subsection (a)(2), in the case of an individual who is—
(1) under 14 years of age, all the individual’s
rights under this subtitle shall be exercised through
the parent or legal guardian of the individual; or
(2) 14, 15, 16, or 17 years of age, the right of
inspection (under section 6401), the right of amend-
ment (under section 6402), and the right to author-
ize disclosure of protected health information (under
section 6412) of the individual may be exercised ei-
ther by the individual or by the parent or legal
guardian of the individual.
SEC. 
6447. 
MAINTENANCE 
OF 
CERTAIN 
PROTECTED
HEALTH INFORMATION.
(a) IN GENERAL.—A State shall establish a process
under which the protected health information described in
subsection (b) that is maintained by a person described
568
Title VI, Subtitle E
in subsection (c) is delivered to, and maintained by, the
State or an individual or entity designated by the State.
(b) 
INFORMATION
DESCRIBED.—The 
protected
health information referred to in subsection (a) is pro-
tected health information that—
(1) is recorded in any form or medium;
(2) is created by—
(A) a health care provider; or
(B) a health benefit plan sponsor that pro-
vides benefits in the form of items and services
to enrollees and not in the form of reimburse-
ment for items and services; and
(3) relates in any way to the past, present, or
future physical or mental health or condition or
functional status of a protected individual or the
provision of health care to a protected individual.
(c) PERSONS DESCRIBED.—A person referred to in
subsection (a) is any of the following:
(1) A health care facility previously located in
the State that has closed.
(2) A professional practice previously operated
by a health care provider in the State that has
closed.
(3) A health benefit plan sponsor that—
569
Title VI, Subtitle E
(A) previously provided benefits in the
form of items and services to enrollees in the
State; and
(B) has ceased to do business.
PART 5—ENFORCEMENT
SEC. 6451. CIVIL ACTIONS.
(a) IN GENERAL.—Any individual whose right under
this subtitle has been knowingly or negligently violated—
(1) by a health information trustee, or any
other person, who is not described in paragraph (2),
(3), (4), or (5) may maintain a civil action for actual
damages and for equitable relief against the health
information trustee or other person;
(2) by an officer or employee of the United
States while the officer or employee was acting with-
in the scope of the office or employment may main-
tain a civil action for actual damages and for equi-
table relief against the United States;
(3) by an officer or employee of any government
authority of a State that has waived its sovereign
immunity to a claim for damages resulting from a
violation of this subtitle while the officer or employee
was acting within the scope of the office or employ-
ment may maintain a civil action for actual damages
570
Title VI, Subtitle E
and for equitable relief against the State govern-
ment;
(4) by an officer or employee of a government
of a State that is not described in paragraph (3)
may maintain a civil action for actual damages and
for equitable relief against the officer or employee;
or
(5) by an officer or employee of a government
authority while the officer or employee was not act-
ing within the scope of the office or employment
may maintain a civil action for actual damages and
for equitable relief against the officer or employee.
(b) KNOWING VIOLATIONS.—Any individual entitled
to recover actual damages under this section because of
a knowing violation of a provision of this subtitle (other
than subsection (c) or (d) of section 6411) shall be entitled
to recover the amount of the actual damages demonstrated
or $5,000, whichever is greater.
(c) ACTUAL DAMAGES.—For purposes of this section,
the term ‘‘actual damages’’ includes damages paid to com-
pensate an individual for nonpecuniary losses such as
physical and mental injury as well as damages paid to
compensate for pecuniary losses.
(d) PUNITIVE DAMAGES; ATTORNEY’S FEES.—In
any action brought under this section in which the com-
571
Title VI, Subtitle E
plainant has prevailed because of a knowing violation of
a provision of this subtitle (other than subsection (c) or
(d) of section 6411), the court may, in addition to any
relief awarded under subsections (a) and (b), award such
punitive damages as may be warranted. In such an action,
the court, in its discretion, may allow the prevailing party
a reasonable attorney’s fee (including expert fees) as part
of the costs, and the United States shall be liable for costs
the same as a private person.
(e) LIMITATION.—A civil action under this section
may not be commenced more than 2 years after the date
on which the aggrieved individual discovered the violation
or the date on which the aggrieved individual had a rea-
sonable opportunity to discover the violation, whichever oc-
curs first.
(f) INSPECTION AND AMENDMENT.—If a health in-
formation trustee has established a formal internal proce-
dure that allows an individual who has been denied inspec-
tion or amendment of protected health information to ap-
peal the denial, the individual may not maintain a civil
action in connection with the denial until the earlier of—
(1) the date the appeal procedure has been ex-
hausted; or
(2) the date that is 4 months after the date on
which the appeal procedure was initiated.
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Title VI, Subtitle E
(g) NO
LIABILITY
FOR
PERMISSIBLE
DISCLO-
SURES.—A health information trustee who makes a disclo-
sure of protected health information about a protected in-
dividual that is permitted by this subtitle and not other-
wise prohibited by State or Federal statute shall not be
liable to the individual for the disclosure under common
law.
(h) NO LIABILITY
FOR INSTITUTIONAL REVIEW
BOARD DETERMINATIONS.—If the members of a certified
institutional review board have in good faith determined
that an approved health research project is of sufficient
importance so as to outweigh the intrusion into the privacy
of an individual pursuant to section 6416(a)(1), the mem-
bers, the board, and the parent institution of the board
shall not be liable to the individual as a result of such
determination.
(i) GOOD FAITH RELIANCE ON CERTIFICATION.—A
health information trustee who relies in good faith on a
certification by a government authority or other person
and discloses protected health information about an indi-
vidual in accordance with this subtitle shall not be liable
to the individual for such disclosure.
SEC. 6452. CIVIL MONEY PENALTIES.
(a) VIOLATION.—Any health information trustee who
the Secretary determines has demonstrated a pattern or
573
Title VI, Subtitle E
practice of failure to comply with the provisions of this
subtitle shall be subject, in addition to any other penalties
that may be prescribed by law, to a civil money penalty
of not more than $10,000 for each such failure. In deter-
mining the amount of any penalty to be assessed under
the procedures established under subsection (b), the Sec-
retary shall take into account the previous record of com-
pliance of the person being assessed with the applicable
requirements of this subtitle and the gravity of the
violation.
(b) PROCEDURES FOR IMPOSITION OF PENALTIES.—
The provisions of section 1128A of the Social Security Act
(other than subsections (a) and (b)) shall apply to the im-
position of a civil monetary penalty under this section in
the same manner as such provisions apply with respect
to the imposition of a penalty under section 1128A of such
Act.
SEC. 6453. ALTERNATIVE DISPUTE RESOLUTION.
(a) IN GENERAL.—Not later than July 1, 1996, the
Secretary shall, by regulation, develop alternative dispute
resolution methods for use by individuals, health informa-
tion trustees, and other persons in resolving claims under
section 6451.
(b) EFFECT ON INITIATION OF CIVIL ACTIONS.—
574
Title VI, Subtitle E
(1) IN GENERAL.—Subject to paragraph (2),
the regulations established under subsection (a) may
provide that an individual alleging that a right of
the individual under this subtitle has been violated
shall pursue at least one alternative dispute resolu-
tion method developed under such subsection as a
condition precedent to commencing a civil action
under section 6451.
(2) LIMITATION.—Such regulations may not re-
quire an individual to refrain from commencing a
civil action to pursue one or more alternative dispute
resolution method for a period that is greater than
6 months.
(3) SUSPENSION
OF
STATUTE
OF
LIMITA-
TIONS.—The regulations established by the Sec-
retary under subsection (a) may provide that a pe-
riod in which an individual described in paragraph
(1) pursues (as defined by the Secretary) an alter-
native dispute resolution method under this section
shall be excluded in computing the period of limita-
tions under section 6451(e).
(c) METHODS.—The methods under subsection (a)
shall include at least the following:
(1) ARBITRATION.—The use of arbitration.
(2) MEDIATION.—The use of mediation.
575
Title VI, Subtitle E
(3) EARLY OFFERS OF SETTLEMENT.—The use
of a process under which parties make early offers
of settlement.
(d) STANDARDS FOR ESTABLISHING METHODS.—In
developing alternative dispute resolution methods under
subsection (a), the Secretary shall ensure that the meth-
ods promote the resolution of claims in a manner that—
(1) is affordable for the parties involved;
(2) provides for timely and fair resolution of
claims; and
(3) provides for reasonably convenient access to
dispute resolution for individuals.
SEC. 6454. AMENDMENTS TO CRIMINAL LAW.
(a) IN GENERAL.—Title 18, United States Code, is
amended by inserting after chapter 89 the following:
‘‘CHAPTER 90—PROTECTED HEALTH
INFORMATION
‘‘Sec.
‘‘1831. Definitions.
‘‘1832. Obtaining protected health information under false pretenses.
‘‘1833. Monetary gain from obtaining protected health information under false
pretenses.
‘‘1834. Knowing and unlawful obtaining of protected health information.
‘‘1835. Monetary gain from knowing and unlawful obtaining of protected health
information.
‘‘1836. Knowing and unlawful use or disclosure of protected health information.
‘‘1837. Monetary gain from knowing and unlawful sale, transfer, or use of pro-
tected health information.
‘‘§ 1831. Definitions
‘‘As used in this chapter—
576
Title VI, Subtitle E
‘‘(1) the term ‘health information trustee’ has
the meaning given such term in section 6400(b)(5)
of the Bipartisan Health Care Reform Act of 1994;
‘‘(2) the term ‘protected health information’ has
the meaning given such term in section 6400(a)(3)
of such Act; and
‘‘(3) the term ‘protected individual’ has the
meaning given such term in section 6400(a)(4) of
such Act.
‘‘§ 1832. 
Obtaining 
protected 
health 
information
under false pretenses
‘‘Whoever under false pretenses—
‘‘(1) requests or obtains protected health infor-
mation from a health information trustee; or
‘‘(2) obtains from a protected individual an au-
thorization for the disclosure of protected health in-
formation about the individual maintained by a
health information trustee;
shall be fined under this title or imprisoned not more than
5 years, or both.
‘‘§ 1833. Monetary gain from obtaining protected
health information under false pretenses
‘‘Whoever under false pretenses—
‘‘(1) requests or obtains protected health infor-
mation from a health information trustee with the
577
Title VI, Subtitle E
intent to sell, transfer, or use such information for
profit or monetary gain; or
‘‘(2) obtains from a protected individual an au-
thorization for the disclosure of protected health in-
formation about the individual maintained by a
health information trustee with the intent to sell,
transfer, or use such authorization for profit or
monetary gain;
and knowingly sells, transfers, or uses such information
or authorization for profit or monetary gain shall be fined
under this title or imprisoned not more than 10 years, or
both.
‘‘§ 1834. Knowing and unlawful obtaining of pro-
tected health information
‘‘Whoever knowingly obtains protected health infor-
mation from a health information trustee in violation of
subtitle E of title VI of the Bipartisan Health Care Re-
form Act of 1994, knowing that such obtaining is unlaw-
ful, shall be fined under this title or imprisoned not more
than 5 years, or both.
‘‘§ 1835. Monetary gain from knowing and unlawful
obtaining of protected health information
‘‘Whoever knowingly—
‘‘(1) obtains protected health information from
a health information trustee in violation of subtitle
578
Title VI, Subtitle E
E of title VI of the Bipartisan Health Care Reform
Act of 1994, knowing that such obtaining is unlaw-
ful and with the intent to sell, transfer, or use such
information for profit or monetary gain; and
‘‘(2) knowingly sells, transfers, or uses such in-
formation for profit or monetary gain;
shall be fined under this title or imprisoned not more than
10 years, or both.
‘‘§ 1836. Knowing and unlawful use or disclosure of
protected health information
‘‘Whoever knowingly uses or discloses protected
health information in violation of subtitle E of title VI of
the Bipartisan Health Care Reform Act of 1994, knowing
that such use or disclosure is unlawful, shall be fined
under this title or imprisoned not more than 5 years, or
both.
‘‘§ 1837. Monetary gain from knowing and unlawful
sale, transfer, or use of protected health
information
‘‘Whoever knowingly sells, transfers, or uses pro-
tected health information in violation of subtitle E of title
VI of the Bipartisan Health Care Reform Act of 1994,
knowing that such sale, transfer, or use is unlawful, shall
be fined under this title or imprisoned not more than 10
years, or both.’’.