II Calendar No. 20 111th CONGRESS 1st Session S. 350 IN THE SENATE OF THE UNITED STATES January 29, 2009 Mr. Baucus, from the Committee on Finance, reported the following original bill; which was read twice and placed on the calendar A BILL To provide for a portion of the economic recovery package relating to revenue measures, unemployment, and health.

1.

Short title

This Act may be cited as the American Recovery and Reinvestment Act of 2009.

. B

Incentives for the Use of Health Information Technology

I

Medicare program

4201.

Incentives for eligible professionals

(a)

Incentive payments

Section 1848 of the Social Security Act (42 U.S.C. 1395w–4) is amended by adding at the end the following new subsection: (o)

Incentives for adoption and meaningful use of certified EHR technology

(1)

Incentive payments

(A)

In general

(i)

In general

Subject to clause (ii) and the succeeding subparagraphs of this paragraph, with respect to covered professional services furnished by an eligible professional during a payment year (as defined in subparagraph (E)), if the eligible professional is a meaningful EHR user (as determined under paragraph (2)) for the reporting period with respect to such year, in addition to the amount otherwise paid under this part, there also shall be paid to the eligible professional (or to an employer or facility in the cases described in clause (A) of section 1842(b)(6)), from the Federal Supplementary Medical Insurance Trust Fund established under section 1841 an amount equal to 75 percent of the Secretary’s estimate (based on claims submitted not later than 2 months after the end of the payment year) of the allowed charges under this part for all such covered professional services furnished by the eligible professional during such year. (ii)

No incentive payments with respect to years after 2015

No incentive payments may be made under this subsection with respect to a year after 2015. (B)

Limitations on amounts of incentive payments

(i)

In general

In no case shall the amount of the incentive payment provided under this paragraph for an eligible professional for a payment year exceed the applicable amount specified under this subparagraph with respect to such eligible professional and such year. (ii)

Amount

Subject to clauses (iii) through (v), the applicable amount specified in this subparagraph for an eligible professional is as follows: (I)For the first payment year for such professional, $15,000 (or, if the first payment year for such eligible professional is 2011 or 2012, $18,000). (II)For the second payment year for such professional, $12,000. (III)For the third payment year for such professional, $8,000. (IV)For the fourth payment year for such professional, $4,000. (V)For the fifth payment year for such professional, $2,000. (VI)For any succeeding payment year for such professional, $0. (iii)

Phase down for eligible professionals first adopting EHR in 2014

If the first payment year for an eligible professional is 2014, then the amount specified in this subparagraph for a payment year for such professional is the same as the amount specified in clause (ii) for such payment year for an eligible professional whose first payment year is 2013. (iv)

Increase for certain rural eligible professionals

In the case of an eligible professional who predominantly furnishes services under this part in a rural area that is designated by the Secretary (under section 332(a)(1)(A) of the Public Health Service Act) as a health professional shortage area, the amount that would otherwise apply for a payment year for such professional under subclauses (I) through (V) of clause (ii) shall be increased by 25 percent. In implementing the preceding sentence, the Secretary may, as determined appropriate, apply provisions of subsections (m) and (u) of section 1833 in a similar manner as such provisions apply under such subsection. (v)

No incentive payment if first adopting after 2014

If the first payment year for an eligible professional is after 2014 then the applicable amount specified in this subparagraph for such professional for such year and any subsequent year shall be $0. (C)

Non-application to hospital-based eligible professionals

(i)

In general

No incentive payment may be made under this paragraph in the case of a hospital-based eligible professional. (ii)

Hospital-based eligible professional

For purposes of clause (i), the term hospital-based eligible professional means, with respect to covered professional services furnished by an eligible professional during the reporting period for a payment year, an eligible professional, such as a pathologist, anesthesiologist, or emergency physician, who furnishes substantially all of such services in a hospital setting (whether inpatient or outpatient) and through the use of the facilities and equipment, including qualified electronic health records, of the hospital. (D)

Payment

(i)

Form of payment

The payment under this paragraph may be in the form of a single consolidated payment or in the form of such periodic installments as the Secretary may specify. (ii)

Coordination of application of limitation for professionals in different practices

In the case of an eligible professional furnishing covered professional services in more than one practice (as specified by the Secretary), the Secretary shall establish rules to coordinate the incentive payments, including the application of the limitation on amounts of such incentive payments under this paragraph, among such practices. (iii)

Coordination with Medicaid

The Secretary shall seek, to the maximum extent practicable, to avoid duplicative requirements from Federal and State Governments to demonstrate meaningful use of certified EHR technology under this title and title XIX. In doing so, the Secretary may deem satisfaction of State requirements for such meaningful use for a payment year under title XIX to be sufficient to qualify as meaningful use under this subsection and subsection (a)(7) and vice versa. The Secretary may also adjust the reporting periods under such title and such subsections in order to carry out this clause. (E)

Payment year defined

(i)

In general

For purposes of this subsection, the term payment year means a year beginning with 2011. (ii)

First, second, etc. payment year

The term first payment year means, with respect to covered professional services furnished by an eligible professional, the first year for which an incentive payment is made for such services under this subsection. The terms ‘second payment year’, ‘third payment year’, ‘fourth payment year’, and ‘fifth payment year’ mean, with respect to covered professional services furnished by such eligible professional, each successive year immediately following the first payment year for such professional. (2)

Meaningful EHR user

(A)

In general

For purposes of paragraph (1), an eligible professional shall be treated as a meaningful EHR user for a reporting period for a payment year (or, for purposes of subsection (a)(7), for a reporting period under such subsection for a year) if each of the following requirements is met: (i)

Meaningful use of certified EHR technology

The eligible professional demonstrates to the satisfaction of the Secretary, in accordance with subparagraph (C)(i), that during such period the professional is using certified EHR technology in a meaningful manner, which shall include the use of electronic prescribing as determined to be appropriate by the Secretary. (ii)

Information exchange

The eligible professional demonstrates to the satisfaction of the Secretary, in accordance with subparagraph (C)(i), that during such period such certified EHR technology is connected in a manner that provides, in accordance with law and standards applicable to the exchange of information, for the electronic exchange of health information to improve the quality of health care, such as promoting care coordination. (iii)

Reporting on measures using EHR

Subject to subparagraph (B)(ii) and using such certified EHR technology, the eligible professional submits information for such period, in a form and manner specified by the Secretary, on such clinical quality measures and such other measures as selected by the Secretary under subparagraph (B)(i). The Secretary may provide for the use of alternative means for meeting the requirements of clauses (i), (ii), and (iii) in the case of an eligible professional furnishing covered professional services in a group practice (as defined by the Secretary). The Secretary shall seek to improve the use of electronic health records and health care quality over time by requiring more stringent measures of meaningful use selected under this paragraph.(B)

Reporting on measures

(i)

Selection

The Secretary shall select measures for purposes of subparagraph (A)(iii) but only consistent with the following: (I)The Secretary shall provide preference to clinical quality measures that have been endorsed by the entity with a contract with the Secretary under section 1890(a). (II)Prior to any measure being selected under this subparagraph, the Secretary shall publish in the Federal Register such measure and provide for a period of public comment on such measure. (ii)

Limitation

The Secretary may not require the electronic reporting of information on clinical quality measures under subparagraph (A)(iii) unless the Secretary has the capacity to accept the information electronically, which may be on a pilot basis. (iii)

Coordination of reporting of information

In selecting such measures, and in establishing the form and manner for reporting measures under subparagraph (A)(iii), the Secretary shall seek to avoid redundant or duplicative reporting otherwise required, including reporting under subsection (k)(2)(C). (C)

Demonstration of meaningful use of certified EHR technology and information exchange

(i)

In general

A professional may satisfy the demonstration requirement of clauses (i) and (ii) of subparagraph (A) through means specified by the Secretary, which may include— (I)an attestation; (II)the submission of claims with appropriate coding (such as a code indicating that a patient encounter was documented using certified EHR technology); (III)a survey response; (IV)reporting under subparagraph (A)(iii); and (V)other means specified by the Secretary. (ii)

Use of part D data

Notwithstanding sections 1860D–15(d)(2)(B) and 1860D–15(f)(2), the Secretary may use data regarding drug claims submitted for purposes of section 1860D–15 that are necessary for purposes of subparagraph (A). (3)

Application

(A)

Physician reporting system rules

Paragraphs (5), (6), and (8) of subsection (k) shall apply for purposes of this subsection in the same manner as they apply for purposes of such subsection. (B)

Coordination with other payments

The provisions of this subsection shall not be taken into account in applying the provisions of subsection (m) of this section and of section 1833(m) and any payment under such provisions shall not be taken into account in computing allowable charges under this subsection. (C)

Limitations on review

There shall be no administrative or judicial review under section 1869, section 1878, or otherwise of the determination of any incentive payment under this subsection and the payment adjustment under subsection (a)(7), including the determination of a meaningful EHR user under paragraph (2), a limitation under paragraph (1)(B), and the exception under subsection (a)(7)(B). (D)

Posting on website

The Secretary shall post on the Internet website of the Centers for Medicare & Medicaid Services, in an easily understandable format, a list of the names, business addresses, and business phone numbers of the eligible professionals who are meaningful EHR users and, as determined appropriate by the Secretary, of group practices receiving incentive payments under paragraph (1). (4)

Certified EHR technology defined

For purposes of this section, the term certified EHR technology means a qualified electronic health record (as defined in 3000(13) of the Public Health Service Act) that is certified pursuant to section 3001(c)(5) of such Act as meeting standards adopted under section 3004 of such Act that are applicable to the type of record involved (as determined by the Secretary, such as an ambulatory electronic health record for office-based physicians or an inpatient hospital electronic health record for hospitals). (5)

Definitions

For purposes of this subsection: (A)

Covered professional services

The term covered professional services has the meaning given such term in subsection (k)(3). (B)

Eligible professional

The term eligible professional means a physician, as defined in section 1861(r). (C)

Reporting period

The term reporting period means any period (or periods), with respect to a payment year, as specified by the Secretary. . (b)

Incentive payment adjustment

Section 1848(a) of the Social Security Act (42 U.S.C. 1395w–4(a)) is amended by adding at the end the following new paragraph: (7)

Incentives for meaningful use of certified EHR technology

(A)

Adjustment

(i)

In general

Subject to subparagraphs (B) and (D), with respect to covered professional services furnished by an eligible professional during 2015 or any subsequent payment year, if the eligible professional is not a meaningful EHR user (as determined under subsection (o)(2)) for a reporting period for the year, the fee schedule amount for such services furnished by such professional during the year (including the fee schedule amount for purposes of determining a payment based on such amount) shall be equal to the applicable percent of the fee schedule amount that would otherwise apply to such services under this subsection (determined after application of paragraph (3) but without regard to this paragraph). (ii)

Applicable percent

Subject to clause (iii), for purposes of clause (i), the term applicable percent means— (I)for 2015, 99 percent (or, in the case of an eligible professional who was subject to the application of the payment adjustment under section 1848(a)(5) for 2014, 98 percent); (II)for 2016, 98 percent; and (III)for 2017 and each subsequent year, 97 percent. (iii)

Authority to decrease applicable percentage for 2018 and subsequent years

For 2018 and each subsequent year, if the Secretary finds that the proportion of eligible professionals who are meaningful EHR users (as determined under subsection (o)(2)) is less than 75 percent, the applicable percent shall be decreased by 1 percentage point from the applicable percent in the preceding year, but in no case shall the applicable percent be less than 95 percent. (B)

Significant hardship exception

The Secretary may, on a case-by-case basis, exempt an eligible professional from the application of the payment adjustment under subparagraph (A) if the Secretary determines, subject to annual renewal, that compliance with the requirement for being a meaningful EHR user would result in a significant hardship, such as in the case of an eligible professional who practices in a rural area without sufficient Internet access. In no case may an eligible professional be granted an exemption under this subparagraph for more than 5 years. (C)

Application of physician reporting system rules

Paragraphs (5), (6), and (8) of subsection (k) shall apply for purposes of this paragraph in the same manner as they apply for purposes of such subsection. (D)

Non-application to hospital-based eligible professionals

No payment adjustment may be made under subparagraph (A) in the case of hospital-based eligible professionals (as defined in subsection (o)(1)(C)(ii)). (E)

Definitions

For purposes of this paragraph: (i)

Covered professional services

The term covered professional services has the meaning given such term in subsection (k)(3). (ii)

Eligible professional

The term eligible professional means a physician, as defined in section 1861(r). (iii)

Reporting period

The term reporting period means, with respect to a year, a period specified by the Secretary. . (c)

Application to certain MA-affiliated eligible professionals

Section 1853 of the Social Security Act (42 U.S.C. 1395w–23) is amended by adding at the end the following new subsection: (l)

Application of eligible professional incentives for certain MA Organizations for adoption and meaningful use of certified EHR technology

(1)

In general

Subject to paragraphs (3) and (4), in the case of a qualifying MA organization, the provisions of sections 1848(o) and 1848(a)(7) shall apply with respect to eligible professionals described in paragraph (2) of the organization who the organization attests under paragraph (6) to be meaningful EHR users in a similar manner as they apply to eligible professionals under such sections. Incentive payments under paragraph (3) shall be made to and payment adjustments under paragraph (4) shall apply to such qualifying organizations. (2)

Eligible professional described

With respect to a qualifying MA organization, an eligible professional described in this paragraph is an eligible professional (as defined for purposes of section 1848(o)) who— (A)(i)is employed by the organization; or (ii)(I)is employed by, or is a partner of, an entity that through contract with the organization furnishes at least 80 percent of the entity’s patient care services to enrollees of such organization; and (II)furnishes at least 75 percent of the professional services of the eligible professional to enrollees of the organization; and (B)furnishes, on average, at least 20 hours per week of patient care services. (3)

Eligible professional incentive payments

(A)

In general

In applying section 1848(o) under paragraph (1), instead of the additional payment amount under section 1848(o)(1)(A) and subject to subparagraph (B), the Secretary may substitute an amount determined by the Secretary to the extent feasible and practical to be similar to the estimated amount in the aggregate that would be payable if payment for services furnished by such professionals was payable under part B instead of this part. (B)

Avoiding duplication of payments

(i)

In general

If an eligible professional described in paragraph (2) is eligible for the maximum incentive payment under section 1848(o)(1)(A) for the same payment period, the payment incentive shall be made only under such section and not under this subsection. (ii)

Methods

In the case of an eligible professional described in paragraph (2) who is eligible for an incentive payment under section 1848(o)(1)(A) but is not described in clause (i) for the same payment period, the Secretary shall develop a process— (I)to ensure that duplicate payments are not made with respect to an eligible professional both under this subsection and under section 1848(o)(1)(A); and (II)to collect data from Medicare Advantage organizations to ensure against such duplicate payments. (C)

Fixed schedule for application of limitation on incentive payments for all eligible professionals

In applying section 1848(o)(1)(B)(ii) under subparagraph (A), in accordance with rules specified by the Secretary, a qualifying MA organization shall specify a year (not earlier than 2011) that shall be treated as the first payment year for all eligible professionals with respect to such organization. (D)

Cap for economies of scale

In no case may an incentive payment be made under this subsection, including under subparagraph (A), to a qualifying MA organization with respect to more than 5,000 eligible professionals of the organization. (4)

Payment adjustment

(A)

In general

In applying section 1848(a)(7) under paragraph (1), instead of the payment adjustment being an applicable percent of the fee schedule amount for a year under such section, subject to subparagraph (D), the payment adjustment under paragraph (1) shall be equal to the percent specified in subparagraph (B) for such year of the payment amount otherwise provided under this section for such year. (B)

Specified percent

The percent specified under this subparagraph for a year is 100 percent minus a number of percentage points equal to the product of— (i)a percentage equal to 100 percent reduced by the applicable percent (under section 1848(a)(7)(A)(ii)) for the year; and (ii)a percentage equal to the Secretary’s estimate of the proportion for the year, of the expenditures under parts A and B that are not attributable to this part, that are attributable to expenditures for physicians’ services. (C)

Application of payment adjustment

In the case that a qualifying MA organization attests that not all eligible professionals of the organization are meaningful EHR users with respect to a year, the Secretary shall apply the payment adjustment under this paragraph based on the proportion of all eligible professionals of the organization that are not meaningful EHR users for such year. If the number of eligible professionals of the organization that are not meaningful EHR users for such year exceeds 5,000, such number shall be reduced to 5,000 for purposes of determining the proportion under the preceding sentence. (5)

Qualifying ma organization defined

In this subsection and subsection (m), the term qualifying MA organization means a Medicare Advantage organization that is organized as a health maintenance organization (as defined in section 2791(b)(3) of the Public Health Service Act). (6)

Meaningful EHR user attestation

For purposes of this subsection and subsection (m), a qualifying MA organization shall submit an attestation, in a form and manner specified by the Secretary which may include the submission of such attestation as part of submission of the initial bid under section 1854(a)(1)(A)(iv), identifying— (A)whether each eligible professional described in paragraph (2), with respect to such organization is a meaningful EHR user (as defined in section 1848(o)(2)) for a year specified by the Secretary; and (B)whether each eligible hospital described in subsection (m)(1), with respect to such organization, is a meaningful EHR user (as defined in section 1886(n)(3)) for an applicable period specified by the Secretary. (7)

Posting on website

The Secretary shall post on the Internet website of the Centers for Medicare & Medicaid Services, in an easily understandable format, a list of the names, business addresses, and business phone numbers of— (A)each qualifying MA organization receiving an incentive payment under this subsection for eligible professionals of the organization; and (B)the eligible professionals of such organization for which such incentive payment is based. . (d)

Conforming amendments

Section 1853 of the Social Security Act (42 U.S.C. 1395w–23) is amended— (1)in subsection (a)(1)(A), by striking and (i) and inserting (i), and (l); (2)in subsection (c)— (A)in paragraph (1)(D)(i), by striking section 1886(h) and inserting sections 1848(o) and 1886(h); and (B)in paragraph (6)(A), by inserting after under part B, the following: excluding expenditures attributable to subsections (a)(7) and (o) of section 1848,; and (3)in subsection (f), by inserting and for payments under subsection (l) after with the organization. (e)

Conforming amendments to e-prescribing

(1)Section 1848(a)(5)(A) of the Social Security Act (42 U.S.C. 1395w–4(a)(5)(A)) is amended— (A)in clause (i), by striking or any subsequent year and inserting , 2013, or 2014; and (B)in clause (ii), by striking and each subsequent year. (2)Section 1848(m)(2) of such Act (42 U.S.C. 1395w–4(m)(2)) is amended— (A)in subparagraph (A), by striking For 2009 and inserting Subject to subparagraph (D), for 2009; and (B)by adding at the end the following new subparagraph: (D)

Limitation with respect to EHR incentive payments

The provisions of this paragraph shall not apply to an eligible professional (or, in the case of a group practice under paragraph (3)(C), to the group practice) if, for the reporting period the eligible professional (or group practice) receives an incentive payment under subsection (o)(1)(A) with respect to a certified EHR technology (as defined in subsection (o)(4)) that has the capability of electronic prescribing. . (f)

Providing assistance to eligible professionals and certain hospitals

(1)

In general

The Secretary of Health and Human Services shall provide assistance to eligible professionals (as defined in section 1848(o)(5), as added by subsection (a)), Medicaid providers (as defined in section 1903(t)(2) of such Act, as added by section 4211(a)), and eligible hospitals (as defined in section 1886(n)(6)(A) of such Act, as added by section 4202(a)) located in rural or other medically underserved areas to successfully choose, implement, and use certified EHR technology (as defined in section 1848(o)(4) of the Social Security Act, as added by section 4201(a)). (2)

Use of entities with expertise

To the extent practicable, the Secretary shall provide such assistance through entities that have expertise in the choice, implementation, and use of such certified EHR technology.

4202.

Incentives for hospitals

(a)

Incentive payment

Section 1886 of the Social Security Act (42 U.S.C. 1395ww) is amended by adding at the end the following new subsection: (n)

Incentives for adoption and meaningful use of certified EHR technology

(1)

In general

Subject to the succeeding provisions of this subsection, with respect to inpatient hospital services furnished by an eligible hospital during a payment year (as defined in paragraph (2)(G)), if the eligible hospital is a meaningful EHR user (as determined under paragraph (3)) for the reporting period with respect to such year, in addition to the amount otherwise paid under this section, there also shall be paid to the eligible hospital, from the Federal Hospital Insurance Trust Fund established under section 1817, an amount equal to the applicable amount specified in paragraph (2)(A) for the hospital for such payment year. (2)

Payment amount

(A)

In general

Subject to the succeeding subparagraphs of this paragraph, the applicable amount specified in this subparagraph for an eligible hospital for a payment year is equal to the product of the following: (i)

Initial amount

The sum of— (I)the base amount specified in subparagraph (B); plus (II)the discharge related amount specified in subparagraph (C) for a 12-month period selected by the Secretary with respect to such payment year. (ii)

Medicare share

The Medicare share as specified in subparagraph (D) for the hospital for a period selected by the Secretary with respect to such payment year. (iii)

Transition factor

The transition factor specified in subparagraph (E) for the hospital for the payment year. (B)

Base amount

The base amount specified in this subparagraph is $2,000,000. (C)

Discharge related amount

The discharge related amount specified in this subparagraph for a 12-month period selected by the Secretary shall be determined as the sum of the amount, based upon total discharges (regardless of any source of payment) for the period, for each discharge up to the 23,000th discharge as follows: (i)For the 1,150th through the 9,200th discharge, $200. (ii)For the 9,201st through the 13,800th discharge, 50 percent of the amount specified in clause (i). (iii)For the 13,801st through the 23,000th discharge, 30 percent of the amount specified in clause (i). (D)

Medicare share

The Medicare share specified under this subparagraph for a hospital for a period selected by the Secretary for a payment year is equal to the fraction— (i)the numerator of which is the sum (for such period and with respect to the hospital) of— (I)the number of inpatient-bed-days (as established by the Secretary) which are attributable to individuals with respect to whom payment may be made under part A; and (II)the number of inpatient-bed-days (as so established) which are attributable to individuals who are enrolled with a Medicare Advantage organization under part C; and (ii)the denominator of which is the product of— (I)the total number of inpatient-bed-days with respect to the hospital during such period; and (II)the total amount of the hospital’s charges during such period, not including any charges that are attributable to charity care (as such term is used for purposes of hospital cost reporting under this title), divided by the total amount of the hospital’s charges during such period. Insofar as the Secretary determines that data are not available on charity care necessary to calculate the portion of the formula specified in clause (ii)(II), the Secretary shall use data on uncompensated care and may adjust such data so as to be an appropriate proxy for charity care including a downward adjustment to eliminate bad debt data from uncompensated care data. In the absence of the data necessary, with respect to a hospital, for the Secretary to compute the amount described in clause (ii)(II), the amount under such clause shall be deemed to be 1. In the absence of data, with respect to a hospital, necessary to compute the amount described in clause (i)(II), the amount under such clause shall be deemed to be 0.(E)

Transition factor specified

(i)

In general

Subject to clause (ii), the transition factor specified in this subparagraph for an eligible hospital for a payment year is as follows: (I)For the first payment year for such hospital, 1. (II)For the second payment year for such hospital, 3/4. (III)For the third payment year for such hospital, ½. (IV)For the fourth payment year for such hospital, 1/4. (V)For any succeeding payment year for such hospital, 0. (ii)

Phase down for eligible hospitals first adopting EHR after 2013

If the first payment year for an eligible hospital is after 2013, then the transition factor specified in this subparagraph for a payment year for such hospital is the same as the amount specified in clause (i) for such payment year for an eligible hospital for which the first payment year is 2013. If the first payment year for an eligible hospital is after 2015 then the transition factor specified in this subparagraph for such hospital and for such year and any subsequent year shall be 0. (F)

Form of payment

The payment under this subsection for a payment year may be in the form of a single consolidated payment or in the form of such periodic installments as the Secretary may specify. (G)

Payment year defined

(i)

In general

For purposes of this subsection, the term payment year means a fiscal year beginning with fiscal year 2011. (ii)

First, second, etc. payment year

The term first payment year means, with respect to inpatient hospital services furnished by an eligible hospital, the first fiscal year for which an incentive payment is made for such services under this subsection. The terms second payment year, third payment year, and fourth payment year mean, with respect to an eligible hospital, each successive year immediately following the first payment year for that hospital. (3)

Meaningful EHR user

(A)

In general

For purposes of paragraph (1), an eligible hospital shall be treated as a meaningful EHR user for a reporting period for a payment year (or, for purposes of subsection (b)(3)(B)(ix), for a reporting period under such subsection for a fiscal year) if each of the following requirements are met: (i)

Meaningful use of certified EHR technology

The eligible hospital demonstrates to the satisfaction of the Secretary, in accordance with subparagraph (C)(i), that during such period the hospital is using certified EHR technology in a meaningful manner. (ii)

Information exchange

The eligible hospital demonstrates to the satisfaction of the Secretary, in accordance with subparagraph (C)(i), that during such period such certified EHR technology is connected in a manner that provides, in accordance with law and standards applicable to the exchange of information, for the electronic exchange of health information to improve the quality of health care, such as promoting care coordination. (iii)

Reporting on measures using EHR

Subject to subparagraph (B)(ii) and using such certified EHR technology, the eligible hospital submits information for such period, in a form and manner specified by the Secretary, on such clinical quality measures and such other measures as selected by the Secretary under subparagraph (B)(i). The Secretary shall seek to improve the use of electronic health records and health care quality over time by requiring more stringent measures of meaningful use selected under this paragraph.(B)

Reporting on measures

(i)

Selection

The Secretary shall select measures for purposes of subparagraph (A)(iii) but only consistent with the following: (I)The Secretary shall provide preference to clinical quality measures that have been selected for purposes of applying subsection (b)(3)(B)(viii) or that have been endorsed by the entity with a contract with the Secretary under section 1890(a). (II)Prior to any measure (other than a clinical quality measure that has been selected for purposes of applying subsection (b)(3)(B)(viii)) being selected under this subparagraph, the Secretary shall publish in the Federal Register such measure and provide for a period of public comment on such measure. (ii)

Limitations

The Secretary may not require the electronic reporting of information on clinical quality measures under subparagraph (A)(iii) unless the Secretary has the capacity to accept the information electronically, which may be on a pilot basis. (iii)

Coordination of reporting of information

In selecting such measures, and in establishing the form and manner for reporting measures under subparagraph (A)(iii), the Secretary shall seek to avoid redundant or duplicative reporting with reporting otherwise required, including reporting under subsection (b)(3)(B)(viii). (C)

Demonstration of meaningful use of certified EHR technology and information exchange

(i)

In general

A hospital may satisfy the demonstration requirement of clauses (i) and (ii) of subparagraph (A) through means specified by the Secretary, which may include— (I)an attestation; (II)the submission of claims with appropriate coding (such as a code indicating that inpatient care was documented using certified EHR technology); (III)a survey response; (IV)reporting under subparagraph (A)(iii); and (V)other means specified by the Secretary. (ii)

Use of part D data

Notwithstanding sections 1860D–15(d)(2)(B) and 1860D–15(f)(2), the Secretary may use data regarding drug claims submitted for purposes of section 1860D–15 that are necessary for purposes of subparagraph (A). (4)

Application

(A)

Limitations on review

There shall be no administrative or judicial review under section 1869, section 1878, or otherwise of the determination of any incentive payment under this subsection and the payment adjustment under subsection (b)(3)(B)(ix), including the determination of a meaningful EHR user under paragraph (3), determination of measures applicable to services furnished by eligible hospitals under this subsection, and the exception under subsection (b)(3)(B)(ix)(II). (B)

Posting on website

The Secretary shall post on the Internet website of the Centers for Medicare & Medicaid Services, in an easily understandable format, a list of the names of the eligible hospitals that are meaningful EHR users under this subsection or subsection (b)(3)(B)(ix) and other relevant data as determined appropriate by the Secretary. The Secretary shall ensure that a hospital has the opportunity to review the other relevant data that are to be made public with respect to the hospital prior to such data being made public. (5)

Certified EHR technology defined

The term certified EHR technology has the meaning given such term in section 1848(o)(4). (6)

Definitions

For purposes of this subsection: (A)

Eligible hospital

The term eligible hospital means— (i)a subsection (d) hospital; and (ii)a critical access hospital (as defined in section 1861(mm)(1)). (B)

Reporting period

The term reporting period means any period (or periods), with respect to a payment year, as specified by the Secretary. . (b)

Incentive market basket adjustment

(1)

In general

Section 1886(b)(3)(B) of the Social Security Act (42 U.S.C. 1395ww(b)(3)(B)) is amended— (A)in clause (viii)(I), by inserting (or, beginning with fiscal year 2016, by one-quarter) after 2.0 percentage points; and (B)by adding at the end the following new clause: (ix)(I)For purposes of clause (i) for fiscal year 2015 and each subsequent fiscal year, in the case of an eligible hospital (as defined in subsection (n)(6)(A)) that is not a meaningful EHR user (as defined in subsection (n)(3)) for the reporting period for such fiscal year, three-quarters of the applicable percentage increase otherwise applicable under clause (i) for such fiscal year shall be reduced by 331/3 percent for fiscal year 2015, 662/3 percent for fiscal year 2016, and 100 percent for fiscal year 2017 and each subsequent fiscal year. Such reduction shall apply only with respect to the fiscal year involved and the Secretary shall not take into account such reduction in computing the applicable percentage increase under clause (i) for a subsequent fiscal year. (II)The Secretary may, on a case-by-case basis, exempt a subsection (d) hospital from the application of subclause (I) with respect to a fiscal year if the Secretary determines, subject to annual renewal, that requiring such hospital to be a meaningful EHR user during such fiscal year would result in a significant hardship, such as in the case of a hospital in a rural area without sufficient Internet access. In no case may a hospital be granted an exemption under this subclause for more than 5 years. (III)For fiscal year 2015 and each subsequent fiscal year, a State in which hospitals are paid for services under section 1814(b)(3) shall adjust the payments to each subsection (d) hospital in the State that is not a meaningful EHR user (as defined in subsection (n)(3)) in a manner that is designed to result in an aggregate reduction in payments to hospitals in the State that is equivalent to the aggregate reduction that would have occurred if payments had been reduced to each subsection (d) hospital in the State in a manner comparable to the reduction under the previous provisions of this clause. The State shall report to the Secretary the methodology it will use to make the payment adjustment under the previous sentence. (IV)For purposes of this clause, the term reporting period means, with respect to a fiscal year, any period (or periods), with respect to the fiscal year, as specified by the Secretary. . (2)

Critical access hospitals

Section 1814(l) of the Social Security Act (42 U.S.C. 1395f(l)) is amended— (A)in subparagraph (1), by striking paragraph (2) and inserting paragraphs (2) and (3); and (B)by adding at the end the following new paragraph: (3)(A)Subject to subparagraph (B), for fiscal year 2015 and each subsequent fiscal year, in the case of a critical access hospital that is not a meaningful EHR user (as defined in section 1886(n)(3)) for the reporting period for such fiscal year, paragraph (1) shall be applied by substituting the applicable percent under subparagraph (C) for the percent described in such paragraph (1). (B)The Secretary may, on a case-by-case basis, exempt a critical access hospital from the application of subparagraph (A) with respect to a fiscal year if the Secretary determines, subject to annual renewal, that requiring such hospital to be a meaningful EHR user during such fiscal year would result in a significant hardship, such as in the case of a hospital in a rural area without sufficient Internet access. In no case may a hospital be granted an exemption under this subparagraph for more than 5 years. (C)The percent described in this subparagraph is— (i)for fiscal year 2015, 100.66 percent; (ii)for fiscal year 2016, 100.33 percent; and (iii)for fiscal year 2017 and each subsequent fiscal year, 100 percent. . (c)

Application to certain MA-affiliated eligible hospitals

Section 1853 of the Social Security Act (42 U.S.C. 1395w–23), as amended by section 4201(c), is further amended by adding at the end the following new subsection: (m)

Application of eligible hospital incentives for certain MA organizations for adoption and meaningful use of certified EHR technology

(1)

Application

Subject to paragraphs (3) and (4), in the case of a qualifying MA organization, the provisions of sections 1814(l)(3), 1886(n), and 1886(b)(3)(B)(ix) shall apply with respect to eligible hospitals described in paragraph (2) of the organization which the organization attests under subsection (l)(6) to be meaningful EHR users in a similar manner as they apply to eligible hospitals under such sections. Incentive payments under paragraph (3) shall be made to and payment adjustments under paragraph (4) shall apply to such qualifying organizations. (2)

Eligible hospital described

With respect to a qualifying MA organization, an eligible hospital described in this paragraph is an eligible hospital (as defined in section 1886(n)(6)(A)) that is under common corporate governance with such organization and serves individuals enrolled under an MA plan offered by such organization. (3)

Eligible hospital incentive payments

(A)

In general

In applying section 1886(n)(2) under paragraph (1), instead of the additional payment amount under section 1886(n)(2), there shall be substituted an amount determined by the Secretary to be similar to the estimated amount in the aggregate that would be payable if payment for services furnished by such hospitals was payable under part A instead of this part. In implementing the previous sentence, the Secretary— (i)shall, insofar as data to determine the discharge related amount under section 1886(n)(2)(C) for an eligible hospital are not available to the Secretary, use such alternative data and methodology to estimate such discharge related amount as the Secretary determines appropriate; and (ii)shall, insofar as data to determine the medicare share described in section 1886(n)(2)(D) for an eligible hospital are not available to the Secretary, use such alternative data and methodology to estimate such share, which data and methodology may include use of the inpatient bed days (or discharges) with respect to an eligible hospital during the appropriate period which are attributable to both individuals for whom payment may be made under part A or individuals enrolled in an MA plan under a Medicare Advantage organization under this part as a proportion of the total number of patient-bed-days (or discharges) with respect to such hospital during such period. (B)

Avoiding duplication of payments

(i)

In general

In the case of a hospital that for a payment year is an eligible hospital described in paragraph (2) and for which at least one-third of their discharges (or bed-days) of Medicare patients for the year are covered under part A, payment for the payment year shall be made only under section 1886(n) and not under this subsection. (ii)

Methods

In the case of a hospital that is an eligible hospital described in paragraph (2) and also is eligible for an incentive payment under section 1886(n) but is not described in clause (i) for the same payment period, the Secretary shall develop a process— (I)to ensure that duplicate payments are not made with respect to an eligible hospital both under this subsection and under section 1886(n); and (II)to collect data from Medicare Advantage organizations to ensure against such duplicate payments. (4)

Payment adjustment

(A)Subject to paragraph (3), in the case of a qualifying MA organization (as defined in section 1853(l)(5)), if, according to the attestation of the organization submitted under subsection (l)(6) for an applicable period, one or more eligible hospitals (as defined in section 1886(n)(6)(A)) that are under common corporate governance with such organization and that serve individuals enrolled under a plan offered by such organization are not meaningful EHR users (as defined in section 1886(n)(3)) with respect to a period, the payment amount payable under this section for such organization for such period shall be the percent specified in subparagraph (B) for such period of the payment amount otherwise provided under this section for such period. (B)

Specified percent

The percent specified under this subparagraph for a year is 100 percent minus a number of percentage points equal to the product of— (i)the number of the percentage point reduction effected under section 1886(b)(3)(B)(ix)(I) for the period; and (ii)the Medicare hospital expenditure proportion specified in subparagraph (C) for the year. (C)

Medicare hospital expenditure proportion

The Medicare hospital expenditure proportion under this subparagraph for a year is the Secretary’s estimate of the proportion, of the expenditures under parts A and B that are not attributable to this part, that are attributable to expenditures for inpatient hospital services. (D)

Application of payment adjustment

In the case that a qualifying MA organization attests that not all eligible hospitals are meaningful EHR users with respect to an applicable period, the Secretary shall apply the payment adjustment under this paragraph based on a methodology specified by the Secretary, taking into account the proportion of such eligible hospitals, or discharges from such hospitals, that are not meaningful EHR users for such period. (5)

Posting on website

The Secretary shall post on the Internet website of the Centers for Medicare & Medicaid Services, in an easily understandable format, — (A)a list of the names, business addresses, and business phone numbers of each qualifying MA organization receiving an incentive payment under this subsection for eligible hospitals described in paragraph (2); and (B)a list of the names of the eligible hospitals for which such incentive payment is based. . (d)

Conforming amendments

(1)Section 1814(b) of the Social Security Act (42 U.S.C. 1395f(b)) is amended— (A)in paragraph (3), in the matter preceding subparagraph (A), by inserting , subject to section 1886(d)(3)(B)(ix)(III), after then; and (B)by adding at the end the following: For purposes of applying paragraph (3), there shall be taken into account incentive payments, and payment adjustments under subsection (b)(3)(B)(ix) or (n) of section 1886.. (2)Section 1851(i)(1) of the Social Security Act (42 U.S.C. 1395w–21(i)(1)) is amended by striking and 1886(h)(3)(D) and inserting 1886(h)(3)(D), and 1853(m). (3)Section 1853 of the Social Security Act (42 U.S.C. 1395w–23), as amended by section 4311(d)(1), is amended— (A)in subsection (c)— (i)in paragraph (1)(D)(i), by striking 1848(o) and inserting , 1848(o), and 1886(n); and (ii)in paragraph (6)(A), by inserting and subsections (b)(3)(B)(ix) and (n) of section 1886 after section 1848; and (B)in subsection (f), by inserting and subsection (m) after under subsection (l).

4203.

Premium hold harmless and implementation funding

(a)

Premium hold harmless

(1)

In general

Section 1839(a)(1) of the Social Security Act (42 U.S.C. 1395r(a)(1)) is amended by adding at the end the following: In applying this paragraph there shall not be taken into account additional payments under section 1848(o) and section 1853(l)(3) and the Government contribution under section 1844(a)(3).. (2)

Payment

Section 1844(a) of such Act (42 U.S.C. 1395w(a)) is amended— (A)in paragraph (2), by striking the period at the end and inserting ; plus; and (B)by adding at the end the following new paragraph: (3)a Government contribution equal to the amount of payment incentives payable under sections 1848(o) and 1853(l)(3). . (b)

Implementation funding

In addition to funds otherwise available, out of any funds in the Treasury not otherwise appropriated, there are appropriated to the Secretary of Health and Human Services for the Center for Medicare & Medicaid Services Program Management Account, $100,000,000 for each of fiscal years 2009 through 2015 and $45,000,000 for each succeeding fiscal year through fiscal year 2018, which shall be available for purposes of carrying out the provisions of (and amendments made by) this part. Amounts appropriated under this subsection for a fiscal year shall be available until expended.

4204.

Non-application of phased-out indirect medical education (IME) adjustment factor for fiscal year 2009

(a)

In general

Section 412.322 of title 42, Code of Federal Regulations, shall be applied without regard to paragraph (c) of such section, and the Secretary of Health and Human Services shall recompute payments for discharges occurring on or after October 1, 2008, as if such paragraph had never been in effect. (b)

No effect on subsequent years

Nothing in subsection (a) shall be construed as having any effect on the application of paragraph (d) of section 412.322 of title 42, Code of Federal Regulations.

4205.

Study on application of EHR payment incentives for providers not receiving other incentive payments

(a)

Study

(1)

In general

The Secretary of Health and Human Services shall conduct a study to determine the extent to which and manner in which payment incentives (such as under title XVIII or XIX of the Social Security Act) and other funding for purposes of implementing and using certified EHR technology (as defined in section 1848(o)(4) of the Social Security Act, as added by section 4311(a)) should be made available to health care providers who are receiving minimal or no payment incentives or other funding under this Act, under title XVIII or XIX of such Act, or otherwise, for such purposes. (2)

Details of study

Such study shall include an examination of— (A)the adoption rates of certified EHR technology (as so defined) by such health care providers; (B)the clinical utility of such technology by such health care providers; (C)whether the services furnished by such health care providers are appropriate for or would benefit from the use of such technology; (D)the extent to which such health care providers work in settings that might otherwise receive an incentive payment or other funding under this Act, title XVIII or XIX of the Social Security Act, or otherwise; (E)the potential costs and the potential benefits of making payment incentives and other funding available to such health care providers; and (F)any other issues the Secretary deems to be appropriate. (b)

Report

Not later than June 30, 2010, the Secretary shall submit to Congress a report on the findings and conclusions of the study conducted under subsection (a).

4206.

Study on availability of open source health information technology systems

(a)

In general

(1)

Study

The Secretary of Health and Human Services shall, in consultation with the Under Secretary for Health of the Veterans Health Administration, the Director of the Indian Health Service, the Secretary of Defense, the Director of the Agency for Healthcare Research and Quality, the Administrator of the Health Resources and Services Administration, and the Chairman of the Federal Communications Commission, conduct a study on— (A)the current availability of open source health information technology systems to Federal safety net providers (including small, rural providers); (B)the total cost of ownership of such systems in comparison to the cost of proprietary commercial products available; (C)the ability of such systems to respond to the needs of, and be applied to, various populations (including children and disabled individuals); and (D)the capacity of such systems to facilitate interoperability. (2)

Considerations

In conducting the study under paragraph (1), the Secretary of Health and Human Services shall take into account the circumstances of smaller health care providers, health care providers located in rural or other medically underserved areas, and safety net providers that deliver a significant level of health care to uninsured individuals, Medicaid beneficiaries, SCHIP beneficiaries, and other vulnerable individuals. (b)

Report

Not later than October 1, 2010, the Secretary of Health and Human Services shall submit to Congress a report on the findings and the conclusions of the study conducted under subsection (a), together with recommendations for such legislation and administrative action as the Secretary determines appropriate.

II

Medicaid Funding

4211.

Medicaid provider EHR adoption and operation payments; implementation funding

(a)

In general

Section 1903 of the Social Security Act (42 U.S.C. 1396b) is amended— (1)in subsection (a)(3)— (A)by striking and at the end of subparagraph (D); (B)by striking plus at the end of subparagraph (E) and inserting and; and (C)by adding at the end the following new subparagraph: (F)(i)100 percent of so much of the sums expended during such quarter as are attributable to payments for certified EHR technology (and support services including maintenance and training that is for, or is necessary for the adoption and operation of, such technology) by Medicaid providers described in subsection (t)(1); and (ii)90 percent of so much of the sums expended during such quarter as are attributable to payments for reasonable administrative expenses related to the administration of payments described in clause (i) if the State meets the condition described in subsection (t)(9); plus ; and (2)by inserting after subsection (s) the following new subsection: (t)(1)(A)For purposes of subsection (a)(3)(F), the payments for certified EHR technology (and support services including maintenance that is for, or is necessary for the operation of, such technology) by Medicaid providers described in this paragraph are payments made by the State in accordance with this subsection of the applicable percent of the net allowable costs of Medicaid providers (as defined in paragraph (2)) for such technology (and support services). (B)For purposes of subparagraph (A), the term applicable percent means— (i)in the case of a Medicaid provider described in paragraph (2)(A), 85 percent; (ii)in the case of a Medicaid provider described in clause (i) or (ii) of paragraph (2)(B), 100 percent; and (iii)in the case of a Medicaid provider described in clause (iii) of paragraph (2)(B), a percent specified by the Secretary, but not less than 85 percent. (2)In this subsection and subsection (a)(3)(F), the term Medicaid provider means— (A)an eligible professional (as defined in paragraph (3)(B)) who is not hospital-based and has at least 30 percent of the professional’s patient volume (as estimated in accordance with standards established by the Secretary) attributable to individuals who are receiving medical assistance under this title; and (B)(i)a children’s hospital, (ii)an acute-care hospital that is not described in clause (i) and that has at least 10 percent of the hospital’s patient volume (as estimated in accordance with standards established by the Secretary) attributable to individuals who are receiving medical assistance under this title, or (iii)Federally-qualified health center or rural health clinic that has at least 30 percent of the center’s or clinic’s patient volume (as estimated in accordance with standards established by the Secretary) attributable to individuals who are receiving medical assistance under this title. An eligible professional shall not qualify as a Medicaid provider under this subsection unless the professional has waived, in a manner specified by the Secretary, any right to payment under section 1848(o) with respect to the adoption or support of certified EHR technology by the eligible professional. In applying clauses (ii) and (iii) of subparagraph (B), the standards established by the Secretary for patient volume shall include individuals enrolled in a Medicaid managed care plan (under section 1903(m) or section 1932).(3)In this subsection and subsection (a)(3)(F): (A)The term certified EHR technology means a qualified electronic health record (as defined in 3000(13) of the Public Health Service Act) that is certified pursuant to section 3001(c)(5) of such Act as meeting standards adopted under section 3004 of such Act that are applicable to the type of record involved (as determined by the Secretary, such as an ambulatory electronic health record for office-based physicians or an inpatient hospital electronic health record for hospitals). (B)The term eligible professional means a physician as defined in paragraphs (1) and (2) of section 1861(r), and includes a nurse mid-wife and a nurse practitioner. (C)The term hospital-based means, with respect to an eligible professional, a professional (such as a pathologist, anesthesiologist, or emergency physician) who furnishes substantially all of the individual’s professional services in a hospital setting (whether inpatient or outpatient) and through the use of the facilities and equipment, including qualified electronic health records, of the hospital. (4)(A)The term allowable costs means, with respect to certified EHR technology of a Medicaid provider, costs of such technology (and support services including maintenance and training that is for, or is necessary for the adoption and operation of, such technology) as determined by the Secretary to be reasonable. (B)The term net allowable costs means allowable costs reduced by any payment that is made to the Medicaid provider involved from any other source that is directly attributable to payment for certified EHR technology or services described in subparagraph (A). (C)In no case shall— (i)the aggregate allowable costs under this subsection (covering one or more years) with respect to a Medicaid provider described in paragraph (2)(A) for purchase and initial implementation of certified EHR technology (and services described in subparagraph (A)) exceed $25,000 or include costs over a period of longer than 5 years; (ii)for costs not described in clause (i) relating to the operation, maintenance, or use of certified EHR technology, the annual allowable costs under this subsection with respect to such a Medicaid provider for costs not described in clause (i) for any year exceed $10,000; (iii)payment described in paragraph (1) for costs described in clause (ii) be made with respect to such a Medicaid provider over a period of more than 5 years; (iv)the aggregate allowable costs under this subsection with respect to such a Medicaid provider for all costs exceed $75,000; or (v)the allowable costs, whether for purchase and initial implementation, maintenance, or otherwise, for a Medicaid provider described in paragraph (2)(B)(iii) exceed such aggregate or annual limitation as the Secretary shall establish, based on an amount determined by the Secretary as being adequate to adopt and maintain certified EHR technology, consistent with paragraph (6). (5)Payments described in paragraph (1) are not in accordance with this subsection unless the following requirements are met: (A)The State provides assurances satisfactory to the Secretary that amounts received under subsection (a)(3)(F) with respect to costs of a Medicaid provider are paid directly to such provider without any deduction or rebate. (B)Such Medicaid provider is responsible for payment of the costs described in such paragraph that are not provided under this title. (C)With respect to payments to such Medicaid provider for costs other than costs related to the initial adoption of certified EHR technology, the Medicaid provider demonstrates meaningful use of certified EHR technology through a means that is approved by the State and acceptable to the Secretary, and that may be based upon the methodologies applied under section 1848(o) or 1886(n). In establishing such means, which may include the reporting of clinical quality measures to the State, the State shall ensure that populations with unique needs, such as children, are appropriately addressed. (D)To the extent specified by the Secretary, the certified EHR technology is compatible with State or Federal administrative management systems. (6)(A)In no case shall the payments described in paragraph (1), with respect to a hospital, exceed in the aggregate the product of— (i)the overall hospital EHR amount for the hospital computed under subparagraph (B); and (ii)the Medicaid share for such hospital computed under subparagraph (C). (B)For purposes of this paragraph, the overall hospital EHR amount, with respect to a hospital, is the sum of the applicable amounts specified in section 1886(n)(2)(A) for such hospital for the first 4 payment years (as estimated by the Secretary) determined as if the Medicare share specified in clause (ii) of such section were 1. The Secretary shall publish in the Federal Register the overall hospital EHR amount for each hospital eligible for payments under this subsection. In computing amounts under clause (ii) for payment years after the first payment year, the Secretary shall assume that in subsequent payment years discharges increase at the average annual rate of growth of the most recent three years for which discharge data are available. (C)The Medicaid share computed under this subparagraph, for a hospital for a period specified by the Secretary, shall be calculated in the same manner as the Medicare share under section 1886(n)(2)(D) for such a hospital and period, except that there shall be substituted for the numerator under clause (i) of such section the amount that is equal to the number of inpatient-bed-days (as established by the Secretary) which are attributable to individuals who are receiving medical assistance under this title and who are not described in section 1886(n)(2)(D)(i). In computing inpatient-bed-days under the previous sentence, the Secretary shall take into account inpatient-bed-days attributable to inpatient-bed-days that are paid for individuals enrolled in a Medicaid managed care plan (under section 1903(m) or section 1932). (7)With respect to health care providers other than hospitals, the Secretary shall establish and implement a detailed process to ensure coordination of the different programs for payment of such health care providers for adoption or use of health information technology (including certified EHR technology), as well as payments for such health care providers provided under this title or title XVIII, to assure no duplication of funding. The Secretary shall promulgate regulations to carry out the preceding sentence. (8)In carrying out paragraph (5)(C), the State and Secretary shall seek, to the maximum extent practicable, to avoid duplicative requirements from Federal and State Governments to demonstrate meaningful use of certified EHR technology under this title and title XVIII. In doing so, the Secretary may deem satisfaction of requirements for such meaningful use for a payment year under title XVIII to be sufficient to qualify as meaningful use under this subsection. The Secretary may also specify the reporting periods under this subsection in order to carry out this paragraph. (9)In order to be provided Federal financial participation under subsection (a)(3)(F)(ii), a State must demonstrate to the satisfaction of the Secretary, that the State— (A)is using the funds provided for the purposes of administering payments under this subsection, including tracking of meaningful use by Medicaid providers; (B)is conducting adequate oversight of the program under this subsection, including routine tracking of meaningful use attestations and reporting mechanisms; and (C)is pursuing initiatives to encourage the adoption of certified EHR technology to promote health care quality and the exchange of health care information under this title, subject to applicable laws and regulations governing such exchange. (10)The Secretary shall periodically submit reports to the Committee on Energy and Commerce of the House of Representatives and the Committee on Finance of the Senate on status, progress, and oversight of payments under paragraph (1). . (b)

Implementation funding

In addition to funds otherwise available, out of any funds in the Treasury not otherwise appropriated, there are appropriated to the Secretary of Health and Human Services for the Center for Medicare & Medicaid Services Program Management Account, $40,000,000 for each of fiscal years 2009 through 2015 and $20,000,000 for each succeeding fiscal year through fiscal year 2018, which shall be available for purposes of carrying out the provisions of (and the amendments made by) this part. Amounts appropriated under this subsection for a fiscal year shall be available until expended. (c)

HHS report on implementation of detailed process To assure no duplication of funding

Not later than July 1, 2012, the Secretary of Health and Human Services shall submit to Congress a report on the establishment and implementation of the detailed process under section 1903(t)(7) of the Social Security Act, as added by subsection (a), together with recommendations for such legislation and administrative action as the Secretary determines appropriate.

January 29, 2009 Read twice and placed on the calendar