[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1685 Introduced in Senate (IS)]

113th CONGRESS
  1st Session
                                S. 1685

 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 SENATE OF THE UNITED STATES

                           November 12, 2013

  Mr. Portman introduced the following bill; which was read twice and 
                  referred to the Committee on Finance

_______________________________________________________________________

                                 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 Coordination Act of 2013''.

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), 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) in subsection (a)(7)--
                    (A) in subparagraph (E), by adding at the end the 
                following new clause:
                            ``(iv) Additional eligible professional.--
                        The term `additional eligible professional' 
                        means a clinical psychologist providing 
                        qualified psychologist services (as defined in 
                        section 1861(ii)).''; and
                    (B) by adding at the end the following new 
                subparagraph:
                    ``(F) Application to additional eligible 
                professionals.--The Secretary shall apply the 
                provisions of this paragraph with respect to an 
                additional eligible professional in the same manner as 
                such provisions apply to an eligible professional, 
                except in applying subparagraph (A)--
                            ``(i) in clause (i), the reference to 2015 
                        shall be deemed a reference to 2019;
                            ``(ii) in clause (ii), the references to 
                        2015, 2016, and 2017 shall be deemed references 
                        to 2019, 2020, and 2021, respectively; and
                            ``(iii) in clause (iii), the reference to 
                        2018 shall be deemed a reference to 2022.''; 
                        and
            (2) in subsection (o)--
                    (A) in paragraph (5), by adding at the end the 
                following new subparagraph:
                    ``(D) Additional eligible professional.--The term 
                `additional eligible professional' means a clinical 
                psychologist providing qualified psychologist services 
                (as defined in section 1861(ii)).''; and
                    (B) by adding at the end the following new 
                paragraph:
            ``(6) Application to additional eligible professionals.--
        The Secretary shall apply the provisions of this subsection 
        with respect to an additional eligible professional in the same 
        manner as such provisions apply to an eligible professional, 
        except in applying--
                    ``(A) paragraph (1)(A)(ii), the reference to 2016 
                shall be deemed a reference to 2020;
                    ``(B) paragraph (1)(B)(ii), the references to 2011 
                and 2012 shall be deemed references to 2015 and 2016, 
                respectively;
                    ``(C) paragraph (1)(B)(iii), the references to 2013 
                shall be deemed references to 2017;
                    ``(D) paragraph (1)(B)(v), the references to 2014 
                shall be deemed references to 2018; and
                    ``(E) paragraph (1)(E), the reference to 2011 shall 
                be deemed a reference to 2015.''.
    (b) Eligible Hospitals.--Section 1886 of the Social Security Act 
(42 U.S.C. 1395ww) is amended--
            (1) in subsection (b)(3)(B)(ix), by adding at the end the 
        following new subclause:
                                    ``(V) The Secretary shall apply the 
                                provisions of this subsection with 
                                respect to an additional eligible 
                                hospital (as defined in subsection 
                                (n)(6)(C)) in the same manner as such 
                                provisions apply to an eligible 
                                hospital, except in applying--
                                            ``(aa) subclause (I), the 
                                        references to 2015, 2016, and 
                                        2017 shall be deemed references 
                                        to 2019, 2020, and 2021, 
                                        respectively; and
                                            ``(bb) subclause (III), the 
                                        reference to 2015 shall be 
                                        deemed a reference to 2019.''; 
                                        and
            (2) in subsection (n)--
                    (A) in paragraph (6), by adding at the end the 
                following new subparagraph:
                    ``(C) Additional eligible hospital.--The term 
                `additional eligible hospital' means an inpatient 
                hospital that is a psychiatric hospital (as defined in 
                section 1861(f)).''; and
                    (B) by adding at the end the following new 
                paragraph:
            ``(7) Application to additional eligible hospitals.--The 
        Secretary shall apply the provisions of this subsection with 
        respect to an additional eligible hospital in the same manner 
        as such provisions apply to an eligible hospital, except in 
        applying--
                    ``(A) paragraph (2)(E)(ii), the references to 2013 
                and 2015 shall be deemed references to 2017 and 2019, 
                respectively; and
                    ``(B) paragraph (2)(G)(i), the reference to 2011 
                shall be deemed a reference to 2015.''.
    (c) Medicaid Providers.--Section 1903(t) of the Social Security Act 
(42 U.S.C. 1396b(t)) is amended--
            (1) in paragraph (2)(B)--
                    (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.''; 
                                and
            (2) in paragraph (3)(B)--
                    (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).''.
    (d) Medicare Advantage Organizations.--Section 1853 of the Social 
Security Act (42 U.S.C. 1395w-23) is amended--
            (1) in subsection (l)--
                    (A) in paragraph (1)--
                            (i) by inserting ``or additional eligible 
                        professionals (as described in paragraph (9))'' 
                        after ``paragraph (2)''; and
                            (ii) by inserting ``and additional eligible 
                        professionals'' before ``under such sections'';
                    (B) in paragraph (3)(B)--
                            (i) in clause (i) in the matter preceding 
                        subclause (I), by inserting ``or an additional 
                        eligible professional described in paragraph 
                        (9)'' after ``paragraph (2)''; and
                            (ii) in clause (ii)--
                                    (I) in the matter preceding 
                                subclause (I), by inserting ``or an 
                                additional eligible professional 
                                described in paragraph (9)'' after 
                                ``paragraph (2)''; and
                                    (II) in subclause (I), by inserting 
                                ``or an additional eligible 
                                professional, respectively,'' after 
                                ``eligible professional'';
                    (C) in paragraph (3)(C), by inserting ``and 
                additional eligible professionals'' after ``all 
                eligible professionals'';
                    (D) in paragraph (4)(D), by adding at the end the 
                following new sentence: ``In the case that a qualifying 
                MA organization attests that not all additional 
                eligible professionals of the organization are 
                meaningful EHR users with respect to an applicable 
                year, the Secretary shall apply the payment adjustment 
                under this paragraph based on the proportion of all 
                such additional eligible professionals of the 
                organization that are not meaningful EHR users for such 
                year.'';
                    (E) in paragraph (6)(A), by inserting ``and, as 
                applicable, each additional eligible professional 
                described in paragraph (9)'' after ``paragraph (2)'';
                    (F) in paragraph (6)(B), by inserting ``and, as 
                applicable, each additional eligible hospital described 
                in paragraph (9)'' after ``subsection (m)(1)'';
                    (G) in paragraph (7)(A), by inserting ``and, as 
                applicable, additional eligible professionals'' after 
                ``eligible professionals'';
                    (H) in paragraph (7)(B), by inserting ``and, as 
                applicable, additional eligible professionals'' after 
                ``eligible professionals'';
                    (I) in paragraph (8)(B), by inserting ``and 
                additional eligible professionals described in 
                paragraph (9)'' after ``paragraph (2)''; and
                    (J) by adding at the end the following new 
                paragraph:
            ``(9) Additional eligible professional described.--With 
        respect to a qualifying MA organization, an additional eligible 
        professional described in this paragraph is an additional 
        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 Medicare 
                patient care services to enrollees of such 
                organization; and
                    ``(II) furnishes at least 80 percent of the 
                professional services of the additional eligible 
                professional covered under this title to enrollees of 
                the organization; and
                    ``(B) furnishes, on average, at least 20 hours per 
                week of patient care services.''; and
            (2) in subsection (m)--
                    (A) in paragraph (1)--
                            (i) by inserting ``or additional eligible 
                        hospitals (as described in paragraph (7))'' 
                        after ``paragraph (2)''; and
                            (ii) by inserting ``and additional eligible 
                        hospitals'' before ``under such sections'';
                    (B) in paragraph (3)(A)(i), by inserting ``or 
                additional eligible hospital'' after ``eligible 
                hospital'';
                    (C) in paragraph (3)(A)(ii), by inserting ``or an 
                additional eligible hospital'' after ``eligible 
                hospital'' in each place it occurs;
                    (D) in paragraph (3)(B)--
                            (i) in clause (i), by inserting ``or an 
                        additional eligible hospital described in 
                        paragraph (7)'' after ``paragraph (2)''; and
                            (ii) in clause (ii)--
                                    (I) in the matter preceding 
                                subclause (I), by inserting ``or an 
                                additional eligible hospital described 
                                in paragraph (7)'' after ``paragraph 
                                (2)''; and
                                    (II) in subclause (I), by inserting 
                                ``or an additional eligible hospital, 
                                respectively,'' after ``eligible 
                                hospital'';
                    (E) in paragraph (4)(A), by inserting ``or one or 
                more additional eligible hospitals (as defined in 
                section 1886(n)), as appropriate,'' after ``section 
                1886(n)(6)(A))'';
                    (F) in paragraph (4)(D), by adding at the end the 
                following new sentence: ``In the case that a qualifying 
                MA organization attests that not all additional 
                eligible hospitals of the organization are meaningful 
                EHR users with respect to an applicable period, the 
                Secretary shall apply the payment adjustment under this 
                paragraph based on the methodology specified by the 
                Secretary, taking into account the proportion of such 
                additional eligible hospitals, or discharges from such 
                hospitals, that are not meaningful EHR users for such 
                period.'';
                    (G) in paragraph (5)(A), by inserting ``and, as 
                applicable, each additional eligible hospital described 
                in paragraph (7)'' after ``paragraph (2)'';
                    (H) in paragraph (5)(B), by inserting ``and 
                additional eligible hospitals, as applicable,'' after 
                ``eligible hospitals'';
                    (I) in paragraph (6)(B), by inserting ``and 
                additional eligible hospitals described in paragraph 
                (7)'' after ``paragraph (2)''; and
                    (J) by adding at the end the following new 
                paragraph:
            ``(7) Additional eligible hospital described.--With respect 
        to a qualifying MA organization, an additional eligible 
        hospital described in this paragraph is an additional eligible 
        hospital (as defined in section 1886(n)(6)(C)) that is under 
        common corporate governance with such organization and serves 
        individuals enrolled under an MA plan offered by such 
        organization.''.

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

    (a) Covered Entities.--
            (1) Covered entities.--For purposes of this section, a 
        covered entity means, with respect to certified EHR technology 
        (as defined in section 1848(o)(4) of the Social Security Act 
        (42 U.S.C. 1395w-4(o)(4))) and a year, any of the following:
                    (A) Meaningful ehr users.--
                            (i) An eligible professional (as defined in 
                        paragraph (5)(C) of section 1848(o) of the 
                        Social Security Act (42 U.S.C. 1395w-4(o))) 
                        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, or an 
                        additional eligible professional (as defined in 
                        paragraph (5)(D) of such section) determined to 
                        be a meaningful EHR user pursuant to paragraph 
                        (6) 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 (42 U.S.C. 1395w-
                        23(l))), an eligible professional described in 
                        paragraph (2) of such section or, as 
                        applicable, an additional eligible professional 
                        described in paragraph (9) 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 so defined), an eligible 
                        hospital described in section 1853(m)(2) of 
                        such Act (42 U.S.C. 1395w-23(m)(2)) or, as 
                        applicable, an additional eligible hospital 
                        described in section 1853(m)(7) of such Act (42 
                        U.S.C. 1395w-23(m)(7)) of the organization 
                        which attests under section 1853(l)(6) of such 
                        Act (42 U.S.C. 1395w-23(l)(6)) 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 
                        (42 U.S.C. 1395ww(n)) 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, or an additional 
                        eligible hospital (as defined in paragraph 
                        (6)(C) of such section) determined to be a 
                        meaningful EHR user under paragraph (7) 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 (42 
                        U.S.C. 1395f(l)(3)) to be a meaningful EHR user 
                        (as would be determined under paragraph (3) of 
                        section 1886(n) of such Act (42 U.S.C. 
                        1395ww(n))) 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 
                        (42 U.S.C. 1396b(t))) 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 electronic health record (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 (b)(1).
                    (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 (42 U.S.C. 1395w-
                                4(o)));
                                    (II) an eligible professional 
                                described in paragraph (2) of section 
                                1853(l) of such Act (42 U.S.C. 1395w-
                                23(l)) or, as applicable, an additional 
                                eligible professional described in 
                                paragraph (9) of such section, with 
                                respect to a qualifying MA organization 
                                (as defined in paragraph (5) of such 
                                section);
                                    (III) an eligible hospital 
                                described in paragraph (2) of section 
                                1853(m) of such Act (42 U.S.C. 1395w-
                                23(m)) or, as applicable, an additional 
                                eligible hospital described in 
                                paragraph (7) of such section, 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 (42 U.S.C. 
                                1395ww(n)));
                                    (V) a critical access hospital;
                                    (VI) a Medicaid provider (as 
                                defined in paragraph (2) of section 
                                1903(t) of such Act (42 U.S.C. 
                                1396b(t)));
                                    (VII) an additional eligible 
                                professional (as defined in paragraph 
                                (5)(D) of section 1848(o) of such Act 
                                (42 U.S.C. 1395w-4(o))); or
                                    (VIII) an additional eligible 
                                hospital (as defined in paragraph 
                                (6)(C) of section 1886(n) of such Act 
                                (42 U.S.C. 1395ww(n))); and
                            (iii) attests, to the satisfaction of the 
                        Secretary of Health and Human Services, 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) Quarterly reporting by patient safety organizations.--
        Paragraph (1) of section 924(b) of the Public Health Service 
        Act (42 U.S.C. 299b-24) is amended by adding at the end the 
        following:
                    ``(H) Not less than quarterly each year, the entity 
                shall submit to the Office of the National Coordinator 
                findings that--
                            ``(i) exclude any individually identifiable 
                        information;
                            ``(ii) are based on information submitted 
                        to the entity by covered entities (as defined 
                        in section 4(a)(1) of the Behavioral Health 
                        Information Technology Coordination Act of 
                        2013);
                            ``(iii) describe the number and nature of 
                        EHR-related adverse events with respect to 
                        certified EHR technology (as such terms are 
                        defined in section 4(e) of such Act) so 
                        reported; and
                            ``(iv) for each such EHR-related adverse 
                        event, identify the type event and the type 
                        electronic health record involved.''.
            (2) Application of safety organization privilege and 
        confidentiality protections.--In the case of a covered entity 
        that submits to a patient safety organization information on an 
        EHR-related adverse event with respect to certified EHR 
        technology, and in the case of the collection and maintenance 
        of such information by a patient safety organization, the 
        provisions of section 922 of the Public Health Service Act (42 
        U.S.C. 299b-22) shall apply to such information and to the 
        organization 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 
        (42 U.S.C. 299b-2 et seq.).
            (3) Clarification of authority.--Certified EHR technology 
        shall not be considered to be 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 
        (a), 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 3 years after the date of the alleged 
                        manifestation of injury except that actions by 
                        a claimant under the age of 6 years may not be 
                        commenced after the date that is 3 years after 
                        the date of manifestation of injury or prior to 
                        the claimant's 8th birthday, whichever provides 
                        a longer period. 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.--In this section:
            (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 are 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 (42 U.S.C. 1395w-
        4(o)(4)).
            (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) Patient safety organization.--The term ``patient 
        safety organization'' has the meaning given to such term in 
        section 921 of the Public Health Service Act (42 U.S.C. 299b-
        21).
            (16) 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.
            (17) State.--The term ``State'' means each of the several 
        States, the 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.
                                 <all>