I 111th CONGRESS 1st Session H. R. 3987 IN THE HOUSE OF REPRESENTATIVES November 3, 2009 Mr. Blunt (for himself, Mr. Barton of Texas, Mr. Burgess, Mrs. Blackburn, and Mr. Gingrey of Georgia) 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 amend titles XI and XVIII of the Social Security Act to promote the use of health information technology to better coordinate health care.
1.
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).
2.
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).
3.
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 1(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 2(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. .