[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6043 Introduced in House (IH)]

112th CONGRESS
  2d Session
                                H. R. 6043

 To amend the Public Health Service Act and the Social Security Act to 
    extend health information technology assistance eligibility to 
behavioral health, mental health, and substance abuse professionals and 
                  facilities, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 27, 2012

Mr. Murphy of Pennsylvania (for himself, Mr. Ryan of Ohio, Mr. Marino, 
Mr. Sullivan, Mrs. Blackburn, and Mr. Tiberi) 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 the Public Health Service Act and the Social Security Act to 
    extend health information technology assistance eligibility to 
behavioral health, mental health, and substance abuse professionals and 
                  facilities, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Behavioral Health Information 
Technology Act of 2012''.

SEC. 2. EXTENSION OF HEALTH INFORMATION TECHNOLOGY ASSISTANCE FOR 
              BEHAVIORAL AND MENTAL HEALTH AND SUBSTANCE ABUSE.

    Section 3000(3) of the Public Health Service Act (42 U.S.C. 
300jj(3)) is amended by inserting before ``and any other category'' the 
following: ``behavioral and mental health professionals (as defined in 
section 331(a)(3)(E)(i)), a substance abuse professional, a psychiatric 
hospital (as defined in section 1861(f) of the Social Security Act (42 
U.S.C. 1395x(f))), a community mental health center meeting the 
criteria specified in section 1913(c), a residential or outpatient 
mental health or substance abuse treatment facility,''.

SEC. 3. EXTENSION OF ELIGIBILITY FOR MEDICARE AND MEDICAID HEALTH 
              INFORMATION TECHNOLOGY IMPLEMENTATION ASSISTANCE.

    (a) Payment Incentives for Eligible Professionals Under Medicare.--
Section 1848 of the Social Security Act (42 U.S.C. 1395w-4) is 
amended--
            (1) by amending clause (iii) of subsection (a)(7)(E) to 
        read as follows:
                            ``(iii) Eligible professional.--The term 
                        `eligible professional' means any of the 
                        following:
                                    ``(I) A physician (as defined in 
                                section 1861(r)).
                                    ``(II) A clinical psychologist 
                                providing qualified psychologist 
                                services (as defined in section 
                                1861(ii)).''; and
            (2) by amending subparagraph (C) of subsection (o)(5) to 
        read as follows:
                    ``(C) Eligible professional.--The term `eligible 
                professional' means any of the following:
                            ``(i) A physician (as defined in section 
                        1861(r)).
                            ``(ii) A clinical psychologist providing 
                        qualified psychologist services (as defined in 
                        section 1861(ii)).''.
    (b) Eligible Hospitals.--Section 1886(n)(6)(B) of the Social 
Security Act (42 U.S.C. 1395ww(n)(6)(B)) is amended by inserting before 
the period at the end the following: ``or an inpatient hospital that is 
a psychiatric hospital (as defined in section 1861(f))''.
    (c) Medicaid Providers.--Section 1903(t) of the Social Security Act 
(42 U.S.C. 1396b(t)) is amended as follows:
            (1) Paragraph (2)(B) is amended--
                    (A) in clause (i), by striking ``, or'' and 
                inserting a semicolon;
                    (B) in clause (ii), by striking the period and 
                inserting a semicolon; and
                    (C) by adding after clause (ii) the following new 
                clauses:
                            ``(iii) a public hospital that is 
                        principally a psychiatric hospital (as defined 
                        in section 1861(f));
                            ``(iv) a private hospital that is 
                        principally a psychiatric hospital (as defined 
                        in section 1861(f)) and that has at least 10 
                        percent of its patient volume (as estimated in 
                        accordance with a methodology established by 
                        the Secretary) attributable to individuals 
                        receiving medical assistance under this title;
                            ``(v) a community mental health center 
                        meeting the criteria specified in section 
                        1913(c) of the Public Health Service Act; or
                            ``(vi) a residential or outpatient mental 
                        health or substance abuse treatment facility 
                        that--
                                    ``(I) is accredited by the Joint 
                                Commission on Accreditation of 
                                Healthcare Organizations, the 
                                Commission on Accreditation of 
                                Rehabilitation Facilities, the Council 
                                on Accreditation, or any other national 
                                accrediting agency recognized by the 
                                Secretary; and
                                    ``(II) has at least 10 percent of 
                                its patient volume (as estimated in 
                                accordance with a methodology 
                                established by the Secretary) 
                                attributable to individuals receiving 
                                medical assistance under this title.''.
            (2) Paragraph (3)(B) is amended--
                    (A) in clause (iv), by striking ``and'' after the 
                semicolon;
                    (B) in clause (v), by striking the period and 
                inserting ``; and''; and
                    (C) by adding at the end the following new clause:
                            ``(vi) clinical psychologist providing 
                        qualified psychologist services (as defined in 
                        section 1861(ii)), if such clinical 
                        psychologist is practicing in an outpatient 
                        clinic that--
                                    ``(I) is led by a clinical 
                                psychologist; and
                                    ``(II) is not otherwise receiving 
                                payment under paragraph (1) as a 
                                Medicaid provider described in 
                                paragraph (2)(B).''.

SEC. 4. PROVIDING PROTECTIONS FOR CERTAIN PROVIDERS, VENDORS, AND USERS 
              OF CERTIFIED EHR TECHNOLOGY.

    (a) Covered Entities.--
            (1) Covered entities.--For purposes of this subsection, a 
        covered entity means, with respect to certified EHR technology 
        (as defined in section 1848(o)(4) of the Social Security Act) 
        and a year, any of the following:
                    (A) Meaningful ehr users.--Any of the following, 
                with respect to such year:
                            (i) An eligible professional (as defined in 
                        paragraph (5)(C) of section 1848(o) of the 
                        Social Security Act) determined to be a 
                        meaningful EHR user under paragraph (2) of such 
                        section for the EHR reporting period (as 
                        defined in paragraph (5)(B) of such section) 
                        during such year.
                            (ii) In the case of a qualifying MA 
                        organization (as defined in paragraph (5) of 
                        section 1853(l) of such Act), an eligible 
                        professional described in paragraph (2) of such 
                        section of the organization who the 
                        organization attests under paragraph (6) of 
                        such section to be a meaningful EHR user for 
                        such year.
                            (iii) In the case of a qualifying MA 
                        organization (as defined in paragraph (5) of 
                        section 1853(l) of such Act), an eligible 
                        hospital described in section 1853(m)(2) of 
                        such Act of the organization which attests 
                        under section 1853(l)(6) of such Act to be a 
                        meaningful EHR user for the applicable period 
                        with respect to such year.
                            (iv) An eligible hospital (as defined in 
                        paragraph (6)(B) of section 1886(n) of such 
                        Act) determined to be a meaningful EHR user 
                        under paragraph (3) of such section for the EHR 
                        reporting period (as defined in paragraph 
                        (6)(A) of such section) with respect to such 
                        year.
                            (v) A critical access hospital determined 
                        pursuant to section 1814(l)(3) of such Act to 
                        be a meaningful EHR user (as would be 
                        determined under paragraph (3) of section 
                        1886(n) of such Act) for an EHR reporting 
                        period (as defined in paragraph (6)(A) of such 
                        section) for a cost reporting period beginning 
                        during such year.
                            (vi) A Medicaid provider (as defined in 
                        paragraph (2) of section 1903(t) of such Act) 
                        eligible for payments described in paragraph 
                        (1) of such section for such year.
                    (B) Health information exchange entities.--
                Individuals and entities (other than States or State 
                designated entities) which during such year are health 
                information exchange contractors (consisting of 
                technology providers), health information exchange 
                participants (consisting of organizations providing 
                supportive technology to a health information 
                exchange), and other users of health information 
                exchanges (consisting of other entities that may be 
                exchanging clinical or administrative data). 
                Manufacturers of EHR Software and other health 
                information technologies who participate in the 
                reporting of adverse events or who otherwise contribute 
                relevant patient safety work product under subsection 
                (c)(1) of this Act.
                    (C) Certain other ehr users.--A health care 
                professional who, during such year--
                            (i) is a user of such certified EHR 
                        technology;
                            (ii) is not eligible for incentive payments 
                        based on meaningful use of such technology 
                        under title XVIII or XIX of the Social Security 
                        Act solely because the professional is not--
                                    (I) an eligible professional (as 
                                defined in paragraph (5)(C) of section 
                                1848(o) of such Act);
                                    (II) an eligible professional 
                                described in paragraph (2) of section 
                                1853(l) of such Act, with respect to a 
                                qualifying MA organization (as defined 
                                in paragraph (5) of such section);
                                    (III) an eligible hospital 
                                described in section 1853(m)(2) of such 
                                Act, with respect to such a qualifying 
                                MA organization;
                                    (IV) an eligible hospital (as 
                                defined in paragraph (6)(B) of section 
                                1886(n) of such Act);
                                    (V) a critical access hospital; or
                                    (VI) a Medicaid provider (as 
                                defined in paragraph (2) of section 
                                1903(t) of such Act); and
                            (iii) attests, to the satisfaction of the 
                        Secretary, that but for the reason described in 
                        clause (ii), the professional would otherwise 
                        satisfy criteria to be eligible for such 
                        incentive payments during such year.
    (b) Improving Patient Safety Through Error Reporting and 
Remediation, and Clarification of Authority.--
            (1) In general.--A covered entity may submit to a Patient 
        Safety Organization as defined in section 921. Title IX of the 
        Public Health Service Act (42 U.S.C. 299 et seq.) information 
        on EHR-related adverse events with respect to certified EHR 
        technology as defined in section 3001 of the Public Health 
        Service Act (42 U.S.C. 300jj-11) used or provided by such 
        entity, as applicable. The utilization of patient safety work 
        product shall be for the purpose of providing direct feedback 
        and assistance to covered entities to effectively minimize 
        patient risk. Patient Safety Organizations may furnish the 
        Office of the National Coordinator de-identified reports of 
        their findings for the purposes of tracking the number and 
        nature of such adverse events.
            (2) Application of safety organization privilege and 
        confidentiality protections.--In the case of a covered entity 
        that submits to such a body information on such an adverse 
        event and in the case of the collection and maintenance of such 
        information by such a body, the provisions of section 922 of 
        the Public Health Service Act shall apply to such information 
        and to the body and the entity in the same manner such 
        provisions apply to patient safety work product and a patient 
        safety organization and provider under part C of title IX of 
        such Act.
            (3) Clarification of authority.--Certified EHR's shall not 
        be considered a device for purposes of the Federal Food, Drug, 
        and Cosmetic Act (21 U.S.C. 301 et seq.).
    (c) Rules Relating to E-Discovery.--In any health care lawsuit 
against a covered entity that is related to an EHR-related adverse 
event, with respect to certified EHR technology used or provided by the 
covered entity, electronic discovery shall be limited to--
            (1) information that is related to such EHR-related adverse 
        event; and
            (2) information from the period in which such EHR-related 
        adverse event occurred.
    (d) Legal Protections for Covered Entities.--
            (1) General.--For a covered entity described in subsection 
        (b), the following protections apply:
                    (A) Encouraging speedy resolution of claims.--
                            (i) General.--A claimant may not commence a 
                        health care lawsuit against a covered entity on 
                        any date that is 3 years after the date of 
                        manifestation of injury or 1 year after the 
                        claimant discovers, or through the use of 
                        reasonable diligence should have discovered, 
                        the injury, whichever occurs first. This 
                        limitation shall be tolled to the extent that 
                        the claimant is able to prove--
                                    (I) fraud;
                                    (II) intentional concealment; or
                                    (III) the presence of a foreign 
                                body, which has no therapeutic or 
                                diagnostic purpose or effect, in the 
                                person of the injured person.
                            (ii) Treatment of a minor.--A health care 
                        lawsuit by or on behalf of a claimant under the 
                        age of 17 years at the time the injury was 
                        suffered may not be commenced after the date 
                        that is not later than 3 years after the date 
                        of the alleged manifestation of injury except 
                        that actions by a claimant under the full age 
                        of 6 years shall be commenced not later than 3 
                        years after the date of manifestation of injury 
                        or prior to the claimant's 8th birthday, 
                        whichever provides a longer period. In addition 
                        to subparagraph (A)(i)(I)-(III), this 
                        limitation shall be tolled for claimants under 
                        the age of 17 years for any period during which 
                        a parent or guardian and a health care provider 
                        or health care organization have committed 
                        fraud or collusion in the failure to bring an 
                        action on behalf of the claimant.
                    (B) Equitable assignment of responsibility.--In any 
                health care lawsuit against a covered entity--
                            (i) each party to the lawsuit other than 
                        the claimant that is such a covered entity 
                        shall be liable for that party's several share 
                        of any damages only and not for the share of 
                        any other person and such several share shall 
                        be in direct proportion to that party's 
                        proportion of responsibility for the injury, as 
                        determined under clause (iii);
                            (ii) whenever a judgment of liability is 
                        rendered as to any such party, a separate 
                        judgment shall be rendered against each such 
                        party for the amount allocated to such party; 
                        and
                            (iii) for purposes of this subparagraph, 
                        the trier of fact shall determine the 
                        proportion of responsibility of each such party 
                        for the claimant's harm.
                    (C) Subsequent remedial measures.--Evidence of 
                subsequent remedial measures to an EHR-related adverse 
                event with respect to certified EHR technology used or 
                provided by the covered entity (including changes to 
                the certified EHR system, additional training 
                requirements, or changes to standard operating 
                procedures) by a covered entity shall not be admissible 
                in health care lawsuits.
                    (D) Increased burden of proof protection for 
                covered entities.--Punitive damages may, if otherwise 
                permitted by applicable State or Federal law, be 
                awarded against any covered entity in a health care 
                lawsuit only if it is proven by clear and convincing 
                evidence that such entity acted with reckless disregard 
                for the health or safety of the claimant. In any such 
                health care lawsuit where no judgment for compensatory 
                damages is rendered against such entity, no punitive 
                damages may be awarded with respect to the claim in 
                such lawsuit.
                    (E) Protection from libel or slander.--Covered 
                entities and employees, agents and representatives of 
                covered entities are immune from civil action for libel 
                or slander arising from information or entries made in 
                certified EHR technology and for the transfer of such 
                information to another eligible provider, hospital or 
                health information exchange, if the information, 
                transfer of information, or entries were made in good 
                faith and without malice.
    (e) Definitions.--
            (1) Claimant.--The term ``claimant'' means any person who 
        brings a health care lawsuit, including a person who asserts or 
        claims a right to legal or equitable contribution, indemnity, 
        or subrogation, arising out of a health care liability claim or 
        action, and any person on whose behalf such a claim is asserted 
        or such an action is brought, whether deceased, incompetent, or 
        a minor.
            (2) Compensatory damages.--The term ``compensatory 
        damages'' means objectively verifiable monetary losses incurred 
        as a result of the provisions of, use of, or payment for (or 
        failure to provide, use, or pay for) health care services or 
        medical products, such as past and future medical expenses, 
        loss of past and future earnings, cost of obtaining domestic 
        services, loss of employment, and loss of business or 
        employment opportunities, damages for physical and emotional 
        pain, suffering, inconvenience, physical impairment, mental 
        anguish, disfigurement, loss of enjoyment in life, loss of 
        society and companionship, loss of consortium (other than loss 
        of domestic service), hedonic damages, injury to reputation, 
        and all other nonpecuniary losses of any kind or nature. Such 
        term includes economic damages and noneconomic damages, as such 
        terms as defined in this subsection.
            (3) Economic damages.--The term ``economic damages'' means 
        objectively verifiable monetary losses incurred as a result of 
        the provisions of, use of, or payment for (or failure to 
        provide, use, or pay for) health care services or medical 
        products, such as past and future medical expenses, loss of 
        past and future earnings, cost of obtaining domestic services, 
        loss of employment, and loss of business or employment 
        opportunities.
            (4) Certified ehr technology.--The term ``certified EHR 
        technology'' has the meaning given such term in section 
        1848(o)(4) of the Social Security Act.
            (5) EHR-Related adverse event.--The term ``EHR-related 
        adverse event'' means, with respect to a provider, a defect, 
        malfunction, or error in the certified health information 
        technology or electronic health record used by the provider, or 
        in the input or output of data maintained through such 
        technology or record, that results or could reasonably result 
        in harm to a patient.
            (6) Health care lawsuit.--The term ``health care lawsuit'' 
        means any health care liability claim concerning the provision 
        of health care items or services or any medical product 
        affecting interstate commerce, or any health care liability 
        action concerning the provision of health care items or 
        services or any medical product affecting interstate commerce, 
        brought in a State or Federal court or pursuant to an 
        alternative dispute resolution system, against a health care 
        provider, a health care organization, or the manufacturer, 
        distributor, supplier, marketer, promoter, or seller of a 
        medical product, regardless of the theory of liability on which 
        the claim is based, or the number of claimants, plaintiffs, 
        defendants, or other parties, or the number of claims or causes 
        of action, in which the claimant alleges a health care 
        liability claim. Such term does not include a claim or action 
        which is based on criminal liability; which seeks civil fines 
        or penalties paid to Federal, State, or local government; or 
        which is grounded in antitrust.
            (7) Health care liability action.--The term ``health care 
        liability action'' means a civil action brought in a State or 
        Federal court or pursuant to an alternative dispute resolution 
        system, against a health care provider, a health care 
        organization, or the manufacturer, distributor, supplier, 
        marketer, promoter, or seller of a medical product, regardless 
        of the theory of liability on which the claim is based, or the 
        number of plaintiffs, defendants, or other parties, or the 
        number of causes of action, in which the claimant alleges a 
        health care liability claim.
            (8) Health care liability claim.--The term ``health care 
        liability claim'' means a demand by any person, whether or not 
        pursuant to alternative dispute resolution, against a health 
        care provider, health care organization, or the manufacturer, 
        distributor, supplier, marketer, promoter, or seller of a 
        medical product, including third-party claims, cross-claims, 
        counter-claims, or contribution claims, which are based upon 
        the provision of, use of, or payment for (or the failure to 
        provide, use or pay for) health care services or medical 
        products, regardless of the theory of liability on which the 
        claim is based, or the number of plaintiffs, defendants, or 
        other parties, or the number of causes of action.
            (9) Health care organization.--The term ``health care 
        organization'' means any person or entity which is obligated to 
        provide or pay for health benefits under any health plan, 
        including any person or entity acting under a contract or 
        arrangement with a health care organization to provide or 
        administer any health benefit.
            (10) Health care provider.--The term ``health care 
        provider'' means any person or entity required by State or 
        Federal laws or regulations to be licensed, registered, or 
        certified to provide health care services, and being either so 
        licensed, registered, or certified, or exempted from such 
        requirement by other statute or regulation.
            (11) Health care items or services.--The term ``health care 
        items or services'' means any items or services provided by a 
        health care organization, provider, or by any individual 
        working under the supervision of a health care provider, that 
        relates to the diagnosis, prevention, or treatment of any human 
        disease or impairment, or the assessment or care of the health 
        of human beings.
            (12) Malicious intent to injure.--The term ``malicious 
        intent to injure'' means intentionally causing or attempting to 
        cause physical injury other than providing health care items or 
        services.
            (13) Medical product.--The term ``medical product'' means a 
        drug, device, or biological product intended for humans, and 
        the terms ``drug'', ``device'', and ``biological product'' have 
        the meanings given such terms in sections 201(g)(1) and 201(h) 
        of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
        321(g)(1) and (h)) and section 351(a) of the Public Health 
        Service Act (42 U.S.C. 262(a)), respectively, including any 
        component or raw material used therein, but excluding health 
        care services.
            (14) Noneconomic damages.--The term ``noneconomic damages'' 
        means damages for physical impairment, mental anguish, 
        disfigurement, loss of enjoyment of life, loss of society and 
        companionship, loss of consortium (other than loss of domestic 
        service), hedonic damages, injury to reputation, and all other 
        nonpecuniary losses of any kind of nature.
            (15) Punitive damages.--The term ``punitive damages'' means 
        damages awarded, for the purpose of punishment or deterrence, 
        and not solely for compensatory purposes, against a health care 
        provider, health care organization, or a manufacturer, 
        distributor, or supplier of a medical product. Punitive damages 
        are neither economic nor economic damages.
            (16) State.--The term ``State'' means each of the several 
        States, District of Columbia, the Commonwealth of Puerto Rico, 
        the Virgin Islands, Guam, American Samoa, the Northern Mariana 
        Islands, the Trust Territory of the Pacific Islands, and any 
        other territory or possession of the United States, or any 
        political subdivision thereof.
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