[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5885 Introduced in House (IH)]







110th CONGRESS
  2d Session
                                H. R. 5885

             To promote a better health information system.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 24, 2008

 Mr. Burgess introduced the following bill; which was referred to the 
 Committee on Energy and Commerce, and in addition to the Committee on 
   Ways and Means, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
             To promote a better health information system.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Health Information 
Technology Promotion Act of 2008''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title and table of contents.
Sec. 2. Preserving privacy and security laws.
 TITLE I--PROMOTING THE USE OF HEALTH INFORMATION TECHNOLOGY TO BETTER 
                         COORDINATE HEALTH CARE

Sec. 101. Safe harbors to antikickback civil penalties and criminal 
                            penalties for provision of Health 
                            Information Technology and training 
                            services.
Sec. 102. Exception to limitation on certain physician referrals (under 
                            Stark) for provision of Health Information 
                            Technology and training services to health 
                            care professionals.
Sec. 103. Rules of construction regarding use of consortia.
                    TITLE II--ADDITIONAL PROVISIONS

Sec. 201. Promotion of telehealth services.
Sec. 202. Study and report on expansion of home health-related 
                            telehealth services.
Sec. 203. Study and report on store and forward technology for 
                            telehealth.
Sec. 204. Ensuring health care providers participating in PHSA 
                            programs, Medicaid, SCHIP, or the MCH 
                            program may maintain health information in 
                            electronic form.
Sec. 205. Ensuring health care providers participating in the Medicare 
                            program may maintain health information in 
                            electronic form.
Sec. 206. Study and report on State, regional, and community health 
                            information exchanges.
Sec. 207. Promoting Health Information Technology as a tool for chronic 
                            disease management.

SEC. 2. PRESERVING PRIVACY AND SECURITY LAWS.

    Nothing in this Act (or the amendments made by this Act) shall be 
construed to affect the scope, substance, or applicability of section 
264(c) of the Health Insurance Portability and Accountability Act of 
1996 and any regulation issued pursuant to such section.

 TITLE I--PROMOTING THE USE OF HEALTH INFORMATION TECHNOLOGY TO BETTER 
                         COORDINATE HEALTH CARE

SEC. 101. SAFE HARBORS TO ANTIKICKBACK CIVIL PENALTIES AND CRIMINAL 
              PENALTIES FOR PROVISION OF HEALTH INFORMATION TECHNOLOGY 
              AND TRAINING SERVICES.

    (a) For Civil Penalties.--Section 1128A of the Social Security Act 
(42 U.S.C. 1320a-7a) is amended--
            (1) in subsection (b), by adding at the end the following 
        new paragraph:
    ``(4) For purposes of this subsection, inducements to reduce or 
limit services described in paragraph (1) shall not include the 
practical or other advantages resulting from health information 
technology or related installation, maintenance, support, or training 
services.''; and
            (2) in subsection (i), by adding at the end the following 
        new paragraph:
            ``(8) The term `health information technology' means 
        hardware, software, license, right, intellectual property, 
        equipment, or other information technology (including new 
        versions, upgrades, and connectivity) designed or provided 
        primarily for the electronic creation, maintenance, or exchange 
        of health information to better coordinate care or improve 
        health care quality, efficiency, or research.''.
    (b) For Criminal Penalties.--Section 1128B of such Act (42 U.S.C. 
1320a-7b) is amended--
            (1) in subsection (b)(3)--
                    (A) in subparagraph (G), by striking ``and'' at the 
                end;
                    (B) in the subparagraph (H) added by section 237(d) 
                of the Medicare Prescription Drug, Improvement, and 
                Modernization Act of 2003 (Public Law 108-173; 117 
                Stat. 2213)--
                            (i) by moving such subparagraph 2 ems to 
                        the left; and
                            (ii) by striking the period at the end and 
                        inserting a semicolon;
                    (C) in the subparagraph (H) added by section 431(a) 
                of such Act (117 Stat. 2287)--
                            (i) by redesignating such subparagraph as 
                        subparagraph (I);
                            (ii) by moving such subparagraph 2 ems to 
                        the left; and
                            (iii) by striking the period at the end and 
                        inserting ``; and''; and
                    (D) by adding at the end the following new 
                subparagraph:
            ``(J) any nonmonetary remuneration (in the form of health 
        information technology, as defined in section 1128A(i)(8), or 
        related installation, maintenance, support, or training 
        services) made to a person by a specified entity (as defined in 
        subsection (g)) if--
                    ``(i) the provision of such remuneration is without 
                an agreement between the parties or legal condition 
                that--
                            ``(I) limits or restricts the use of the 
                        health information technology to services 
                        provided by the physician to individuals 
                        receiving services at the specified entity;
                            ``(II) limits or restricts the use of the 
                        health information technology in conjunction 
                        with other health information technology; or
                            ``(III) conditions the provision of such 
                        remuneration on the referral of patients or 
                        business to the specified entity;
                    ``(ii) such remuneration is arranged for in a 
                written agreement that is signed by the parties 
                involved (or their representatives) and that specifies 
                the remuneration solicited or received (or offered or 
                paid) and states that the provision of such 
                remuneration is made for the primary purpose of better 
                coordination of care or improvement of health quality, 
                efficiency, or research; and
                    ``(iii) the specified entity providing the 
                remuneration (or a representative of such entity) has 
                not taken any action to disable any basic feature of 
                any hardware or software component of such remuneration 
                that would permit interoperability.''; and
            (2) by adding at the end the following new subsection:
    ``(g) Specified Entity Defined.--For purposes of subsection 
(b)(3)(J), the term `specified entity' means an entity that is a 
hospital, group practice, prescription drug plan sponsor, a Medicare 
Advantage organization, or any other such entity specified by the 
Secretary, considering the goals and objectives of this section, as 
well as the goals to better coordinate the delivery of health care and 
to promote the adoption and use of health information technology.''.
    (c) Effective Date and Effect on State Laws.--
            (1) Effective date.--The amendments made by subsections (a) 
        and (b) shall take effect on the date that is 120 days after 
        the date of the enactment of this Act.
            (2) Preemption of state laws.--No State (as defined in 
        section 1101(a) of the Social Security Act (42 U.S.C. 1301(a)) 
        for purposes of title XI of such Act) shall have in effect a 
        State law that imposes a criminal or civil penalty for a 
        transaction described in section 1128A(b)(4) or section 
        1128B(b)(3)(J) of such Act, as added by subsections (a)(1) and 
        (b), respectively, if the conditions described in the 
        respective provision, with respect to such transaction, are 
        met.
    (d) Study and Report To Assess Effect of Safe Harbors on Health 
System.--
            (1) In general.--The Secretary of Health and Human Services 
        shall conduct a study to determine the impact of each of the 
        safe harbors described in paragraph (3). In particular, the 
        study shall examine the following:
                    (A) The effectiveness of each safe harbor in 
                increasing the adoption of health information 
                technology.
                    (B) The types of health information technology 
                provided under each safe harbor.
                    (C) The extent to which the financial or other 
                business relationships between providers under each 
                safe harbor have changed as a result of the safe harbor 
                in a way that adversely affects or benefits the health 
                care system or choices available to consumers.
                    (D) The impact of the adoption of health 
                information technology on health care quality, cost, 
                and access under each safe harbor.
            (2) Report.--Not later than three years after the effective 
        date described in subsection (c)(1), the Secretary of Health 
        and Human Services shall submit to Congress a report on the 
        study under paragraph (1).
            (3) Safe harbors described.--For purposes of paragraphs (1) 
        and (2), the safe harbors described in this paragraph are--
                    (A) the safe harbor under section 1128A(b)(4) of 
                such Act (42 U.S.C. 1320a-7a(b)(4)), as added by 
                subsection (a)(1); and
                    (B) the safe harbor under section 1128B(b)(3)(J) of 
                such Act (42 U.S.C. 1320a-7b(b)(3)(J)), as added by 
                subsection (b).

SEC. 102. EXCEPTION TO LIMITATION ON CERTAIN PHYSICIAN REFERRALS (UNDER 
              STARK) FOR PROVISION OF HEALTH INFORMATION TECHNOLOGY AND 
              TRAINING SERVICES TO HEALTH CARE PROFESSIONALS.

    (a) In General.--Section 1877(b) of the Social Security Act (42 
U.S.C. 1395nn(b)) is amended by adding at the end the following new 
paragraph:
            ``(6) Information technology and training services.--
                    ``(A) In general.--Any nonmonetary remuneration (in 
                the form of health information technology or related 
                installation, maintenance, support or training 
                services) made by a specified entity to a physician 
                if--
                            ``(i) the provision of such remuneration is 
                        without an agreement between the parties or 
                        legal condition that--
                                    ``(I) limits or restricts the use 
                                of the health information technology to 
                                services provided by the physician to 
                                individuals receiving services at the 
                                specified entity;
                                    ``(II) limits or restricts the use 
                                of the health information technology in 
                                conjunction with other health 
                                information technology; or
                                    ``(III) conditions the provision of 
                                such remuneration on the referral of 
                                patients or business to the specified 
                                entity;
                            ``(ii) such remuneration is arranged for in 
                        a written agreement that is signed by the 
                        parties involved (or their representatives) and 
                        that specifies the remuneration made and states 
                        that the provision of such remuneration is made 
                        for the primary purpose of better coordination 
                        of care or improvement of health quality, 
                        efficiency, or research; and
                            ``(iii) the specified entity (or a 
                        representative of such entity) has not taken 
                        any action to disable any basic feature of any 
                        hardware or software component of such 
                        remuneration that would permit 
                        interoperability.
                    ``(B) Health information technology defined.--For 
                purposes of this paragraph, the term `health 
                information technology' means hardware, software, 
                license, right, intellectual property, equipment, or 
                other information technology (including new versions, 
                upgrades, and connectivity) designed or provided 
                primarily for the electronic creation, maintenance, or 
                exchange of health information to better coordinate 
                care or improve health care quality, efficiency, or 
                research.
                    ``(C) Specified entity defined.--For purposes of 
                this paragraph, the term `specified entity' means an 
                entity that is a hospital, group practice, prescription 
                drug plan sponsor, a Medicare Advantage organization, 
                or any other such entity specified by the Secretary, 
                considering the goals and objectives of this section, 
                as well as the goals to better coordinate the delivery 
                of health care and to promote the adoption and use of 
                health information technology.''.
    (b) Effective Date; Effect on State Laws.--
            (1) Effective date.--The amendment made by subsection (a) 
        shall take effect on the date that is 120 days after the date 
        of the enactment of this Act.
            (2) Preemption of state laws.--No State (as defined in 
        section 1101(a) of the Social Security Act (42 U.S.C. 1301(a)) 
        for purposes of title XI of such Act) shall have in effect a 
        State law that imposes a criminal or civil penalty for a 
        transaction described in section 1877(b)(6) of such Act, as 
        added by subsection (a), if the conditions described in such 
        section, with respect to such transaction, are met.
    (c) Study and Report To Assess Effect of Exception on Health 
System.--
            (1) In general.--The Secretary of Health and Human Services 
        shall conduct a study to determine the impact of the exception 
        under section 1877(b)(6) of such Act (42 U.S.C. 1395nn(b)(6)), 
        as added by subsection (a). In particular, the study shall 
        examine the following:
                    (A) The effectiveness of the exception in 
                increasing the adoption of health information 
                technology.
                    (B) The types of health information technology 
                provided under the exception.
                    (C) The extent to which the financial or other 
                business relationships between providers under the 
                exception have changed as a result of the exception in 
                a way that adversely affects or benefits the health 
                care system or choices available to consumers.
                    (D) The impact of the adoption of health 
                information technology on health care quality, cost, 
                and access under the exception.
            (2) Report.--Not later than three years after the effective 
        date described in subsection (b)(1), the Secretary of Health 
        and Human Services shall submit to Congress a report on the 
        study under paragraph (1).

SEC. 103. RULES OF CONSTRUCTION REGARDING USE OF CONSORTIA.

    (a) Application to Safe Harbor From Criminal Penalties.--Section 
1128B(b)(3) of the Social Security Act (42 U.S.C. 1320a-7b(b)(3)) is 
amended by adding after and below subparagraph (J), as added by section 
101(b)(1), the following: ``For purposes of subparagraph (J), nothing 
in such subparagraph shall be construed as preventing a specified 
entity, consistent with the specific requirements of such subparagraph, 
from forming a consortium composed of health care providers, payers, 
employers, and other interested entities to collectively purchase and 
donate health information technology, or from offering health care 
providers a choice of health information technology products in order 
to take into account the varying needs of such providers receiving such 
products.''.
    (b) Application to Stark Exception.--Paragraph (6) of section 
1877(b) of the Social Security Act (42 U.S.C. 1395nn(b)), as added by 
section 102(a), is amended by adding at the end the following new 
subparagraph:
                    ``(D) Rule of construction.--For purposes of 
                subparagraph (A), nothing in such subparagraph shall be 
                construed as preventing a specified entity, consistent 
                with the specific requirements of such subparagraph, 
                from--
                            ``(i) forming a consortium composed of 
                        health care providers, payers, employers, and 
                        other interested entities to collectively 
                        purchase and donate health information 
                        technology; or
                            ``(ii) offering health care providers a 
                        choice of health information technology 
                        products in order to take into account the 
                        varying needs of such providers receiving such 
                        products.''.

                    TITLE II--ADDITIONAL PROVISIONS

SEC. 201. PROMOTION OF TELEHEALTH SERVICES.

    (a) Facilitating the Provision of Telehealth Services Across State 
Lines.--The Secretary of Health and Human Services shall, in 
coordination with physicians, health care practitioners, patient 
advocates, and representatives of States, encourage and facilitate the 
adoption of State reciprocity agreements for practitioner licensure in 
order to expedite the provision across State lines of telehealth 
services.
    (b) Report.--Not later than 18 months after the date of the 
enactment of this Act, the Secretary of Health and Human Services shall 
submit to Congress a report on the actions taken to carry out 
subsection (a).
    (c) State Defined.--For purposes of this subsection, the term 
``State'' has the meaning given that term for purposes of title XVIII 
of the Social Security Act.

SEC. 202. STUDY AND REPORT ON EXPANSION OF HOME HEALTH-RELATED 
              TELEHEALTH SERVICES.

    (a) Study.--The Secretary of Health and Human Services shall 
conduct a study to determine the feasibility, advisability, and the 
costs of--
            (1) including coverage and payment for home health-related 
        telehealth services as part of home health services under title 
        XVIII of the Social Security Act; and
            (2) expanding the list of sites described in paragraph 
        (4)(C)(ii) of section 1834(m) of the Social Security Act (42 
        U.S.C. 1395m(m)) to include county mental health clinics or 
        other publicly funded mental health facilities for the purpose 
        of payment under such section for the provision of telehealth 
        services at such clinics or facilities.
    (b) Specifics of Study.--Such study shall demonstrate whether the 
changes described in paragraphs (1) and (2) of subsection (a) will 
result in the following:
            (1) Enhanced health outcomes for individuals with one or 
        more chronic conditions.
            (2) Health outcomes for individuals furnished telehealth 
        services or home health-related telehealth services that are at 
        least comparable to the health outcomes for individuals 
        furnished similar items and services by a health care provider 
        at the same location of the individual or at the home of the 
        individual, respectively.
            (3) Facilitation of communication of more accurate clinical 
        information between health care providers.
            (4) Closer monitoring of individuals by health care 
        providers.
            (5) Overall reduction in expenditures for health care items 
        and services.
            (6) Improved access to health care.
    (c) Home Health-Related Telehealth Services Defined.--For purposes 
of this section, the term ``home health-related telehealth services'' 
means technology-based professional consultations, patient monitoring, 
patient training services, clinical observation, patient assessment, 
and any other health services that utilize telecommunications 
technologies. Such term does not include a telecommunication that 
consists solely of a telephone audio conversation, facsimile, 
electronic text mail, or consultation between two health care 
providers.
    (d) Report.--Not later than 18 months after the date of the 
enactment of this Act, the Secretary of Health and Human Services shall 
submit to Congress a report on the study conducted under subsection (a) 
and shall include in such report such recommendations for legislation 
or administration action as the Secretary determines appropriate.

SEC. 203. STUDY AND REPORT ON STORE AND FORWARD TECHNOLOGY FOR 
              TELEHEALTH.

    (a) Study.--The Secretary of Health and Human Services, acting 
through the Director of the Office for the Advancement of Telehealth, 
shall conduct a study on the use of store and forward technologies 
(that provide for the asynchronous transmission of health care 
information in single or multimedia formats) in the provision of 
telehealth services. Such study shall include an assessment of the 
feasibility, advisability, and the costs of expanding the use of such 
technologies for use in the diagnosis and treatment of certain 
conditions.
    (b) Report.--Not later than 18 months after the date of the 
enactment of this Act, the Secretary of Health and Human Services shall 
submit to Congress a report on the study conducted under subsection (a) 
and shall include in such report such recommendations for legislation 
or administration action as the Secretary determines appropriate.

SEC. 204. ENSURING HEALTH CARE PROVIDERS PARTICIPATING IN PHSA 
              PROGRAMS, MEDICAID, SCHIP, OR THE MCH PROGRAM MAY 
              MAINTAIN HEALTH INFORMATION IN ELECTRONIC FORM.

    Part B of title II of the Public Health Service Act is amended by 
adding at the end the following new section:

``SEC. 249. ENSURING HEALTH CARE PROVIDERS MAY MAINTAIN HEALTH 
              INFORMATION IN ELECTRONIC FORM.

    ``(a) In General.--Any health care provider that participates in a 
health care program that receives Federal funds under this Act, or 
under title V, XIX, or XXI of the Social Security Act, shall be deemed 
as meeting any requirement for the maintenance of data in paper form 
under such program (whether or not for purposes of management, billing, 
reporting, reimbursement, or otherwise) if the required data is 
maintained in an electronic form.
    ``(b) Relation to State Laws.--Beginning on the date that is one 
year after the date of the enactment of this section, subsection (a) 
shall supersede any contrary provision of State law.
    ``(c) Construction.--Nothing in this section shall be construed 
as--
            ``(1) requiring health care providers to maintain or submit 
        data in electronic form;
            ``(2) preventing a State from permitting health care 
        providers to maintain or submit data in paper form; or
            ``(3) preventing a State from requiring health care 
        providers to maintain or submit data in electronic form.''.

SEC. 205. ENSURING HEALTH CARE PROVIDERS PARTICIPATING IN THE MEDICARE 
              PROGRAM MAY MAINTAIN HEALTH INFORMATION IN ELECTRONIC 
              FORM.

    Section 1871 of the Social Security Act (42 U.S.C. 1395hh) is 
amended by adding at the end the following new subsection:
    ``(g)(1) Any provider of services or supplier shall be deemed as 
meeting any requirement for the maintenance of data in paper form under 
this title (whether or not for purposes of management, billing, 
reporting, reimbursement, or otherwise) if the required data is 
maintained in an electronic form.
    ``(2) Nothing in this subsection shall be construed as requiring 
health care providers to maintain or submit data in electronic form.''.

SEC. 206. STUDY AND REPORT ON STATE, REGIONAL, AND COMMUNITY HEALTH 
              INFORMATION EXCHANGES.

    (a) Study.--The Secretary of Health and Human Services shall 
conduct a study on issues related to the development, operation, and 
implementation of State, regional, and community health information 
exchanges. Such study shall include the following, with respect to such 
health information exchanges:
            (1) Profiles detailing the current stages of such health 
        information exchanges with respect to the progression of the 
        development, operation, implementation, organization, and 
        governance of such exchanges.
            (2) The impact of such exchanges on health care quality, 
        safety, and efficiency, including--
                    (A) any impact on the coordination of health 
                information and services across health care providers 
                and other organizations relevant to health care;
                    (B) any impact on the availability of health 
                information at the point-of-care to make timely medical 
                decisions;
                    (C) any benefits with respect to the promotion of 
                wellness, disease prevention, and chronic disease 
                management;
                    (D) any improvement with respect to public health 
                preparedness and response;
                    (E) any impact on the widespread adoption of 
                interoperable health information technology, including 
                electronic health records;
                    (F) any contributions to achieving an Internet-
                based national health information network;
                    (G) any contribution of health information 
                exchanges to consumer access and to consumers' use of 
                their health information; and
                    (H) any impact on the operation of--
                            (i) the Medicare and Medicaid programs 
                        under title XVIII and XIX, respectively, of the 
                        Social Security Act;
                            (ii) the State Children's Health Insurance 
                        Program (SCHIP) under title XXI of such Act;
                            (iii) disproportionate share hospitals 
                        described in section 1923 of such Act;
                            (iv) Federally-qualified health centers; or
                            (v) managed care plans, if a significant 
                        number of the plan's enrollees are 
                        beneficiaries in the Medicaid program or State 
                        Children's Health Insurance Program under title 
                        XIX or XXI, respectively, of such Act.
            (3) Best practice models for financing, incentivizing, and 
        sustaining such health information exchanges.
            (4) Information identifying the common principles, 
        policies, tools, and standards used (or proposed) in the public 
        and private sectors to support the development, operation, and 
        implementation of such health information exchanges.
            (5) A description of any areas in which Federal Government 
        leadership is needed to support growth and sustainability of 
        such health information exchanges.
    (b) Report.--Not later than one year after the date of enactment of 
this Act, the Secretary of Health and Human Services shall submit to 
Congress a report on the study described in subsection (a), including 
such recommendations as the Secretary determines appropriate to 
facilitate the development, operation, and implementation of health 
information exchanges.

SEC. 207. PROMOTING HEALTH INFORMATION TECHNOLOGY AS A TOOL FOR CHRONIC 
              DISEASE MANAGEMENT.

    (a) In General.--The Secretary of Health and Human Services shall 
establish a two-year project to demonstrate the impact of health 
information technology on disease management for individuals entitled 
to medical assistance under a State plan under title XIX of the Social 
Security Act.
    (b) Structure of Project.--The project under subsection (a) shall--
            (1) create a web-based virtual case management tool that 
        provides access to best practices for managing chronic disease; 
        and
            (2) provide chronic disease patients and caregivers access 
        to their own medical records and to a single source of 
        information on chronic disease.
    (c) Competition.--Not later than the date that is 90 days after the 
date of the enactment of this Act, the Secretary of Health and Human 
Services shall seek proposals from States to carry out the project 
under subsection (a). The Secretary shall select not less than four of 
such proposals submitted, and at least one proposal selected shall 
include a regional approach that features access to an integrated 
hospital information system in at least two adjoining States and that 
permits the measurement of health outcomes.
    (d) Report.--Not later than the date that is 90 days after the last 
day of the project under subsection (a), the Secretary of Health and 
Human Services shall submit to Congress a report on such project and 
shall include in such report the amount of any cost-savings resulting 
from the project and such recommendations for legislation or 
administrative action as the Secretary determines appropriate.
                                 <all>