money penalty under section 321. The Secretary
may not initiate an action under this section with re-
spect to any violation described in section 321 after
the expiration of the 6-year period beginning on the
date on which such violation was alleged to have oc-
curred. The Secretary may initiate an action under
this section by serving notice of the action in any
manner authorized by Rule 4 of the Federal Rules
of Civil Procedure.
(2) NOTICE
AND
OPPORTUNITY
FOR
HEAR-
ING.—The Secretary shall not make a determination
adverse to any person under paragraph (1) until the
person has been given written notice and an oppor-
tunity for the determination to be made on the
record after a hearing at which the person is entitled
to be represented by counsel, to present witnesses,
and to cross-examine witnesses against the person.
(3) ESTOPPEL.—In a proceeding under para-
graph (1) that—
(A) is against a person who has been con-
victed (whether upon a verdict after trial or
upon a plea of guilty or nolo contendere) of a
crime under section 2801 of title 18, United
States Code; and
(B) involves the same conduct as in the
criminal action;
the person is estopped from denying the essential
elements of the criminal offense.
(4) SANCTIONS
FOR
FAILURE
TO
COMPLY.—
The official conducting a hearing under this section
may sanction a person, including any party or attor-
ney, for failing to comply with an order or proce-
dure, failing to defend an action, or other mis-
conduct as would interfere with the speedy, orderly,
or fair conduct of the hearing. Such sanction shall
reasonably relate to the severity and nature of the
failure or misconduct. Such sanction may include—
(A) in the case of refusal to provide or per-
mit discovery, drawing negative factual infer-
ences or treating such refusal as an admission
by deeming the matter, or certain facts, to be
established;
(B) prohibiting a party from introducing
certain evidence or otherwise supporting a par-
ticular claim or defense;
(C) striking pleadings, in whole or in part;
(D) staying the proceedings;
(E) dismissal of the action;
(F) entering a default judgment;
(G) ordering the party or attorney to pay
attorneys’ fees and other costs caused by the
failure or misconduct; and
(H) refusing to consider any motion or
other action which is not filed in a timely man-
ner.
(b) SCOPE
OF
PENALTY.—In determining the
amount or scope of any penalty imposed pursuant to sec-
tion 321, the Secretary shall take into account—
(1) the nature of claims and the circumstances
under which they were presented;
(2) the degree of culpability, history of prior of-
fenses, and financial condition of the person against
whom the claim is brought; and
(3) such other matters as justice may require.
(c) REVIEW OF DETERMINATION.—
(1) IN
GENERAL.—Any person adversely af-
fected by a determination of the Secretary under
this section may obtain a review of such determina-
tion in the United States Court of Appeals for the
circuit in which the person resides, or in which the
claim was presented, by filing in such court (within
60 days following the date the person is notified of
the determination of the Secretary a written petition
requesting that the determination be modified or set
aside.
(2) FILING OF RECORD.—A copy of the petition
filed under paragraph (1) shall be forthwith trans-
mitted by the clerk of the court to the Secretary,
and thereupon the Secretary shall file in the Court
the record in the proceeding as provided in section
2112 of title 28, United States Code. Upon such fil-
ing, the court shall have jurisdiction of the proceed-
ing and of the question determined therein, and
shall have the power to make and enter upon the
pleadings, testimony, and proceedings set forth in
such record a decree affirming, modifying, remand-
ing for further consideration, or setting aside, in
whole or in part, the determination of the Secretary
and enforcing the same to the extent that such order
is affirmed or modified.
(3) CONSIDERATION OF OBJECTIONS.—No ob-
jection that has not been raised before the Secretary
with respect to a determination described in para-
graph (1) shall be considered by the court, unless
the failure or neglect to raise such objection shall be
excused because of extraordinary circumstances.
(4) FINDINGS.—The findings of the Secretary
with respect to questions of fact in an action under
this subsection, if supported by substantial evidence
on the record considered as a whole, shall be conclu-
sive. If any party shall apply to the court for leave
to adduce additional evidence and shall show to the
satisfaction of the court that such additional evi-
dence is material and that there were reasonable
grounds for the failure to adduce such evidence in
the hearing before the Secretary, the court may
order such additional evidence to be taken before the
Secretary and to be made a part of the record. The
Secretary may modify findings as to the facts, or
make new findings, by reason of additional evidence
so taken and filed, and shall file with the court such
modified or new findings, and such findings with re-
spect to questions of fact, if supported by substan-
tial evidence on the record considered as a whole,
and the recommendations of the Secretary, if any,
for the modification or setting aside of the original
order, shall be conclusive.
(5) EXCLUSIVE JURISDICTION.—Upon the filing
of the record with the court under paragraph (2),
the jurisdiction of the court shall be exclusive and its
judgment and decree shall be final, except that the
same shall be subject to review by the Supreme
Court of the United States, as provided for in sec-
tion 1254 of title 28, United States Code.
(d) RECOVERY OF PENALTIES.—
(1) IN
GENERAL.—Civil money penalties im-
posed under this chapter may be compromised by
the Secretary and may be recovered in a civil action
in the name of the United States brought in United
States district court for the district where the claim
was presented, or where the claimant resides, as de-
termined by the Secretary. Amounts recovered under
this section shall be paid to the Secretary and depos-
ited as miscellaneous receipts of the Treasury of the
United States.
(2) DEDUCTION FROM AMOUNTS OWING.—The
amount of any penalty, when finally determined
under this section, or the amount agreed upon in
compromise under paragraph (1), may be deducted
from any sum then or later owing by the United
States or a State to the person against whom the
penalty has been assessed.
(e) DETERMINATION FINAL.—A determination by
the Secretary to impose a penalty under section 321 shall
be final upon the expiration of the 60-day period referred
to in subsection (c)(1). Matters that were raised or that
could have been raised in a hearing before the Secretary
or in an appeal pursuant to subsection (c) may not be
raised as a defense to a civil action by the United States
to collect a penalty under section 321.
(f) SUBPOENA AUTHORITY.—
(1) IN
GENERAL.—For the purpose of any
hearing, investigation, or other proceeding author-
ized or directed under this section, or relative to any
other matter within the jurisdiction of the Secretary
hereunder, the Secretary shall have the power to
issue subpoenas requiring the attendance and testi-
mony of witnesses and the production of any evi-
dence that relates to any matter under investigation
or in question. Such attendance of witnesses and
production of evidence at the designated place of
such hearing, investigation, or other proceeding may
be required from any place in the United States or
in any Territory or possession thereof.
(2) SERVICE.—Subpoenas of the Secretary
under paragraph (1) shall be served by anyone au-
thorized by the Secretary by delivering a copy there-
of to the individual named therein.
(3) PROOF OF SERVICE.—A verified return by
the individual serving the subpoena under this sub-
section setting forth the manner of service shall be
proof of service.
(4) FEES.—Witnesses subpoenaed under this
subsection shall be paid the same fees and mileage
as are paid witnesses in the district court of the
United States.
(5) REFUSAL TO OBEY.—In case of contumacy
by, or refusal to obey a subpoena duly served upon,
any person, any district court of the United States
for the judicial district in which such person charged
with contumacy or refusal to obey is found or re-
sides or transacts business, upon application by the
Secretary, shall have jurisdiction to issue an order
requiring such person to appear and give testimony,
or to appear and produce evidence, or both. Any fail-
ure to obey such order of the court may be punished
by the court as contempt thereof.
(g) INJUNCTIVE RELIEF.—Whenever the Secretary
has reason to believe that any person has engaged, is en-
gaging, or is about to engage in any activity which makes
the person subject to a civil monetary penalty under sec-
tion 321, the Secretary may bring an action in an appro-
priate district court of the United States (or, if applicable,
a United States court of any territory) to enjoin such ac-
tivity, or to enjoin the person from concealing, removing,
encumbering, or disposing of assets which may be required
in order to pay a civil monetary penalty if any such pen-
alty were to be imposed or to seek other appropriate relief.
(h) AGENCY.—A principal is jointly and severally lia-
ble with the principal’s agent for penalties under section
321 for the actions of the principal’s agent acting within
the scope of the agency.
SEC. 323. CIVIL ACTION BY INDIVIDUALS.
(a) IN GENERAL.—Any individual whose rights under
this Act have been knowingly or negligently violated may
bring a civil action to recover—
(1) such preliminary and equitable relief as the
court determines to be appropriate; and
(2) the greater of compensatory damages or liq-
uidated damages of $5,000.
(b) PUNITIVE DAMAGES.—In any action brought
under this section in which the individual has prevailed
because of a knowing violation of a provision of this Act,
the court may, in addition to any relief awarded under
subsection (a), award such punitive damages as may be
warranted.
(c) ATTORNEY’S FEES.—In the case of a civil action
brought under subsection (a) in which the individual has
substantially prevailed, the court may assess against the
respondent a reasonable attorney’s fee and other litigation
costs and expenses (including expert fees) reasonably in-
curred.
(d) LIMITATION.—No action may be commenced
under this section more than 3 years after the date on
which the violation was or should reasonably have been
discovered.
(e) AGENCY.—A principal is jointly and severally lia-
ble with the principal’s agent for damages under this sec-
tion for the actions of the principal’s agent acting within
the scope of the agency.
(f) ADDITIONAL REMEDIES.—The equitable relief or
damages that may be available under this section shall be
in additional to any other lawful remedy or award avail-
able.
TITLE IV—MISCELLANEOUS
SEC. 401. RELATIONSHIP TO OTHER LAWS.
(a) FEDERAL AND STATE LAWS.—Nothing in this
Act shall be construed as preempting, superseding, or re-
pealing, explicitly or implicitly, other Federal or State laws
or regulations relating to protected health information or
relating to an individual’s access to protected health infor-
mation or health care services, if such laws or regulations
provide protections for the rights of individuals to the pri-
vacy of, and access to, their health information that are
greater than those provided for in this Act.
(b) PRIVILEGES.—Nothing in this Act shall be con-
strued to preempt or modify any provisions of State statu-
tory or common law to the extent that such law concerns
a privilege of a witness or person in a court of that State.
This Act shall not be construed to supersede or modify
any provision of Federal statutory or common law to the
extent such law concerns a privilege of a witness or person
in a court of the United States. Authorizations pursuant
to section 202 shall not be construed as a waiver of any
such privilege.
(c) CERTAIN DUTIES UNDER LAW.—Nothing in this
Act shall be construed to preempt, supersede, or modify
the operation of any State law that—
(1) provides for the reporting of vital statistics
such as birth or death information;
(2) requires the reporting of abuse or neglect
information about any individual;
(3) regulates the disclosure or reporting of in-
formation concerning an individual’s mental health;
or
(4) governs a minor’s rights to access protected
health information or health care services.
(d) FEDERAL PRIVACY ACT.—
(1) MEDICAL
EXEMPTIONS.—Section 552a of
title 5, United States Code, is amended by adding
at the end the following:
‘‘(w) CERTAIN
PROTECTED
HEALTH
INFORMA-
TION.—The head of an agency that is a health care pro-
vider, health plan, health oversight agency, employer, in-
surer, health or life insurer, school or university, or person
who receives protected health information under section
204 of the Medical Information Privacy and Security Act
shall promulgate rules, in accordance with the require-
ments (including general notice) of subsections (b)(1),
(b)(2), (b)(3), (c), (e) of section 553 of this title, to ex-
empt a system of records within the agency, to the extent
that the system of records contains protected health infor-
mation (as defined in section 4 of such Act), from all pro-
visions of this section except subsections (b)(6), (d),
(e)(1), (e)(2), subparagraphs (A) through (C) and (E)
through (I) of subsection (e)(4), and subsections (e)(5),
(e)(6), (e)(9), (e)(12), (l), (n), (o), (p), (r), and (u).’’.
(2) 
TECHNICAL
AMENDMENT.—Section
552a(f)(3) of title 5, United States Code, is amend-
ed by striking ‘‘pertaining to him,’’ and all that fol-
lows through the semicolon and inserting ‘‘pertain-
ing to the individual.’’