[Congressional Record Volume 166, Number 208 (Wednesday, December 9, 2020)]
[House]
[Pages H7088-H7092]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 REQUIRING SECRETARY OF HEALTH AND HUMAN SERVICES TO CONSIDER CERTAIN 
                     RECOGNIZED SECURITY PRACTICES

  Mr. PALLONE. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 7898) to amend title XXX of the Public Health Services Act 
to provide for a technical correction to provide the Inspector General 
of the Department of Health and Human Service certain authorities with 
respect to investigations of information blocking, and for other 
purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 7898

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

     SECTION 1. RECOGNITION OF SECURITY PRACTICES.

       Part 1 of subtitle D of the Health Information Technology 
     for Economic and Clinical Health Act (42 U.S.C. 17931 et 
     seq.) is amended by adding at the end the following:

     ``SEC. 13412. RECOGNITION OF SECURITY PRACTICES.

       ``(a) In General.--Consistent with the authority of the 
     Secretary under sections 1176 and 1177 of the Social Security 
     Act, when making determinations relating to fines under such 
     section 1176 (as amended by section 13410) or such section 
     1177, decreasing the length and extent of an audit under 
     section 13411, or remedies otherwise agreed to by the 
     Secretary, the Secretary shall consider whether the covered 
     entity or business associate has adequately demonstrated that 
     it had, for not less than the previous 12 months, recognized 
     security practices in place that may--

[[Page H7089]]

       ``(1) mitigate fines under section 1176 of the Social 
     Security Act (as amended by section 13410);
       ``(2) result in the early, favorable termination of an 
     audit under section 13411; and
       ``(3) mitigate the remedies that would otherwise be agreed 
     to in any agreement with respect to resolving potential 
     violations of the HIPAA Security rule (part 160 of title 45 
     Code of Federal Regulations and subparts A and C of part 164 
     of such title) between the covered entity or business 
     associate and the Department of Health and Human Services.
       ``(b) Definition and Miscellaneous Provisions.--
       ``(1) Recognized security practices.--The term `recognized 
     security practices' means the standards, guidelines, best 
     practices, methodologies, procedures, and processes developed 
     under section 2(c)(15) of the National Institute of Standards 
     and Technology Act, the approaches promulgated under section 
     405(d) of the Cybersecurity Act of 2015, and other programs 
     and processes that address cybersecurity and that are 
     developed, recognized, or promulgated through regulations 
     under other statutory authorities. Such practices shall be 
     determined by the covered entity or business associate, 
     consistent with the HIPAA Security rule (part 160 of title 45 
     Code of Federal Regulations and subparts A and C of part 164 
     of such title).
       ``(2) Limitation.--Nothing in this section shall be 
     construed as providing the Secretary authority to increase 
     fines under section 1176 of the Social Security Act (as 
     amended by section 13410), or the length, extent or quantity 
     of audits under section 13411, due to a lack of compliance 
     with the recognized security practices.
       ``(3) No liability for nonparticipation.--Subject to 
     paragraph (4), nothing in this section shall be construed to 
     subject a covered entity or business associate to liability 
     for electing not to engage in the recognized security 
     practices defined by this section.
       ``(4) Rule of construction.--Nothing in this section shall 
     be construed to limit the Secretary's authority to enforce 
     the HIPAA Security rule (part 160 of title 45 Code of Federal 
     Regulations and subparts A and C of part 164 of such title), 
     or to supersede or conflict with an entity or business 
     associate's obligations under the HIPAA Security rule.''.

     SEC. 2. TECHNICAL CORRECTION.

       (a) In General.--Section 3022(b) of the Public Health 
     Service Act (42 U.S.C. 300jj-52(b)) is amended by adding at 
     the end the following new paragraph:
       ``(4) Application of authorities under inspector general 
     act of 1978.--In carrying out this subsection, the Inspector 
     General shall have the same authorities as provided under 
     section 6 of the Inspector General Act of 1978 (5 U.S.C. 
     App.).''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect as if included in the enactment of the 21st 
     Century Cures Act (Public Law 114-255).
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New 
Jersey (Mr. Pallone) and the gentleman from Oregon (Mr. Walden) each 
will control 20 minutes.
  The Chair recognizes the gentleman from New Jersey.


                             General Leave

  Mr. PALLONE. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days in which to revise and extend their remarks and 
to include extraneous material on H.R. 7898.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New Jersey?
  There was no objection.
  Mr. PALLONE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, in 2016, the Energy and Commerce Committee led the 
charge in passing the 21st Century Cures Act.
  In addition to investing billions in cutting-edge research and opioid 
abuse prevention and treatment, the Cures Act also included several 
provisions related to improving the interoperability of health 
information technology. Specifically, the act defined the practice of 
information blocking. It also provided the Department of Health and 
Human Services Office of the Inspector General, or OIG, with the 
authority to investigate and levy penalties on entities found to be 
engaging in information blocking.
  Examples of information blocking could include a developer placing 
unnecessary restrictions on authorized exchanges of information. 
Another example would be when a developer implements their electronic 
health record, EHR, technology in such a nonstandard way that it 
becomes incredibly difficult to exchange a patient's health information 
with a system not owned by that developer.
  Practices like these simply stand in the way of patients accessing 
their own data and carrying their data with them as they move between 
plans and providers.
  I am pleased that the Office of the National Coordinator for Health 
Information Technology, ONC, and the OIG have worked since the passage 
of the Cures Act to implement these important policies.
  The bill before us today, H.R. 7898, provides for a technical 
correction to the Cures Act to ensure that the OIG has the authority 
they fully need to enforce the information blocking prohibitions.
  H.R. 7898 also includes another health IT-related policy that was 
part of a bipartisan, bicameral health agreement released by the Energy 
and Commerce Committee and the Senate Committee on Health, Education, 
Labor, and Pensions last December.
  This policy incentivizes healthcare entities to adopt strong 
cybersecurity practices by encouraging the Secretary of HHS to consider 
entities' adoption of recognized cybersecurity practices when 
conducting audits or administering HIPAA fines.
  Cyberattacks are increasingly a major concern for healthcare 
providers. It is important that we acknowledge those providers that are 
acting in good faith and doing everything in their power to safeguard 
patient data.
  This provision encourages providers to follow widely recognized best 
practices in the field with the goal of helping all providers be better 
prepared for potential cybersecurity attacks.
  These both are commonsense policies, and I urge my colleagues to join 
me in supporting them. I reserve the balance of my time.
  Mr. WALDEN. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise today in support of H.R. 7898, a technical 
corrections bill introduced by Dr. Burgess.
  The 21st Century Cures Act had a major provision, led by Dr. Burgess, 
regarding information blocking. This is a process where a healthcare 
provider or an electronic healthcare record vendor will not move a 
patient's data between care settings or erects significant 
technological or financial barriers to do so.
  The 21st Century Cures Act was significant in that it banned the 
practice of information blocking, which is a key patient protection and 
an effort to transform our healthcare delivery system. Patient access 
and control over personal health information should be at the center of 
our efforts in securing high-quality and patient-driven care.
  The Energy and Commerce Committee delivered this win for patients, 
and today, we need to make a minor but very important technical 
correction to ensure our policy is enforced.
  H.R. 7898 would clarify the authority of the Department of Health and 
Human Services inspector general regarding information blocking, to 
make crystal clear that the IG has the authority to enforce this ban, 
to go after bad actors, and to protect patient access to personal 
health data.
  Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. 
Burgess), the author of this provision and our ranking member, the top 
member on the Republican side, on the Health Subcommittee.
  Mr. BURGESS. Mr. Speaker, I thank the gentleman for the recognition.
  Mr. Speaker, I rise in support of H.R. 7898, once again, to clarify 
the enforcement and investigative authorities of the inspector general 
at the Department of Health and Human Services with respect to health 
record information blocking.
  In 2016, as has been stated, Congress passed the bipartisan 21st 
Century Cures Act with the goal of closing the gap between innovation 
and our Nation's regulatory process. Throughout the drafting of Cures, 
I made it a priority to address important health information technology 
issues, including interoperability and the prevention of information 
blocking.
  I am a physician, but I am also a patient, and I am acutely aware of 
the frustrations surrounding the difficulty of a patient accessing 
their medical records. Patients should control their own medical data. 
Yet, if a patient and their doctor have difficulty in accessing 
electronic health records, the patient's care may suffer.
  In the Cures bill, Congress provided the tools necessary for doctors 
and patients to better coordinate their care through the sharing of 
patient data.

  The Office of the National Coordinator for Health Information 
Technology promulgated a rule that outlines what is permissible. This 
rule,

[[Page H7090]]

which was finalized this past May, aims to allow patients to seamlessly 
access their electronic health information.
  This bill, H.R. 7898, is needed in order to ensure that there is a 
smooth and effective implementation and to allow for the inspector 
general of the Department of Health and Human Services to enforce this 
rule.
  In the context of this coronavirus pandemic, I think we have all seen 
the importance of allowing the efficient flow of a patient's medical 
records so that patients and their doctors can have informed 
conversations about their care plans.
  Also of importance is ensuring patient privacy and ensuring that it 
is protected and that information is secure. H.R. 7898 builds on the 
sections of the 21st Century Cures Act and encourages healthcare 
entities to adopt strong cybersecurity practices, which are essential 
in protecting patient data from bad actors.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. WALDEN. Mr. Speaker, I yield the gentleman from Texas an 
additional 1 minute.
  Mr. BURGESS. Mr. Speaker, I thank the gentleman for yielding.
  Finally, I would like to point to the bipartisan, bicameral support 
of H.R. 7898, which was included in title V of the Lower Health Care 
Costs package in the Senate. We have both Chambers and both parties 
coming to an agreement, and that is a positive sign. It certainly 
indicates the importance of this legislation.
  It is for these reasons that I encourage Members to vote in favor of 
H.R. 7898. Again, I thank the ranking member for his years of 
friendship and service to the committee.
  Mr. PALLONE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I was hoping I wasn't going to have to make this 
statement about Greg Walden retiring because I really didn't want him 
to retire. I guess I kept hoping that he wouldn't or that he would 
still be here in some fashion--and he will be in some fashion.
  But I wanted to thank him for 20 years of extraordinary service on 
the Energy and Commerce Committee, in particular. And I want to 
particularly thank him for his leadership and friendship over the last 
4 years as he served as the top Republican on the committee.
  During those first 2 years, he chaired the committee, and then over 
the last 2 years, he served as the ranking member. Our committee, as he 
knows and I think a lot of people know, has a long and proud tradition 
of bipartisanship, and Greg has really been a great partner, 
particularly over the last year as we faced the unprecedented 
challenges of COVID-19.
  We have worked very closely over the last 11 months on all the 
legislation that was signed into law to respond to the pandemic. Among 
those laws was the CARES Act, which provided essential assistance to 
the American people, healthcare workers, hospitals, small businesses, 
and State and local government. We have taken some significant steps, 
but the work continues as we hope to complete another COVID-19 relief 
package in the coming days before we adjourn.
  Prior to the pandemic this year, we were able to come together over 
the last 4 years, thanks to Greg's leadership, to pass a lot of other 
substantial bills that actually became law.
  We passed comprehensive legislation to address the opioid epidemic by 
expanding treatment to people fighting opioid use disorder and 
supporting those affected by the opioid crisis.
  We reauthorized the Safe Drinking Water Act for the first time in 20 
years.
  We eliminated annoying robocalls--I don't know, ``eliminating'' may 
not be accurate, but we eliminated a lot of them.
  We passed the RAY BAUM'S Act, named after the late Republican staff 
director of the committee and Greg's longtime friend, which 
reauthorized the Federal Communications Commission for the first time 
in 28 years.
  I know the law is very important to Greg, not only because it was 
named after Ray but also because of Greg's longtime love for 
broadcasting.
  Of course, not everything is bipartisan. He will probably never 
forget his initiation as chairman. His first full committee markup--as 
was already mentioned by other colleagues--was the longest markup in 
the Energy and Commerce Committee's history, 27 hours as we debated the 
Republican Affordable Care Act repeal bill. That was really baptism by 
fire.
  At the end of the day, I am going to remember Greg most for the 
commitment he made day in and day out to help everyday Americans. It is 
really special.
  A lot of people have a bad opinion of Congress. They think that we 
come here for self-aggrandizement because somehow we want to get a 
better job after we leave--not that there is one--or that we are trying 
to help our families or trying to help special interests. The one thing 
I will say about Greg is that none of that is true.

                              {time}  1530

  One thing I will say about Greg is that none of that is true. He has 
a strong dose of humility, and humility is something that I would say 
oftentimes is lacking, not just in Congress, but in general. Sometimes 
I wonder if people even value it as something that they cherish. But 
certainly Greg does. He is not only humble, he really cares about 
everyone, and he is not just out for himself.
  I also want to thank his wife, Mylene, for sharing him with us for 
all these years. We are going to miss Greg, and we will miss Mylene 
also.
  Greg, I wish you nothing but the best in your future endeavors. I 
have been hearing different rumors from other Members. Earl actually 
told me about some trip you took in the mountains in Oregon.
  Everybody is sort of secret about these different things that he is 
doing, but I suspect that they are going to be endeavors that he loves 
and that, when I hear about them, will be fantastic.
  I just feel bad about even making this speech about his leaving, but 
that is the way it is, and I am going to miss him.
  Mr. Speaker, I reserve the balance of my time.
  Mr. WALDEN. Mr. Speaker, I yield myself the balance of my time.
  To my friends in this assembly, thank you for your friendship.
  To the chairman of the committee, we have developed a wonderful 
relationship. Sometimes your staff and our staff spar, but we are a 
family, and families do disagree from time to time. But generally 
speaking, we are headed in the same direction, and that direction is 
making America a better place for everyone and solving problems. So I 
am very thankful for your very generous and kind comments, Mr. 
Chairman.
  Mr. Speaker, I will say it has been a real delight and joy to work 
with the chairman of the Energy and Commerce Committee. I would have to 
admit it was a more delight and joy to work with the ranking member of 
the Energy and Commerce Committee when I was chairman, but that is the 
way of the world, and that is democracy. We switched roles and handed 
off the gavel in peace, and we began to approach issues from a 
different angle but with the same mission.
  Mr. Speaker, as 2020 comes to a thankful close--I think we are all 
ready to get it behind us--so does my 22 years of public service in 
this incredible crucible of democracy, the United States House of 
Representatives.
  I want to start by thanking my wife of 38 years, and our son, who is 
30, Mylene and Anthony. They have always supported me during my three 
decades of State and Federal service, all the campaigns, all the 
meetings, and all the times away. I know my colleagues will understand 
this when I say I will never fully understand all that they sacrificed 
so that I could fulfill my duty in office, but I do know it was a lot.
  I also want to thank my terrific staff over the years, and especially 
those who helped me build and lead such successful organizations, 
including my two personal office chiefs of staff of over 22 years, 
Brian MacDonald and Lorissa Bounds, terrific leaders both; my executive 
directors at the NRCC when I ran the Republican campaign organization, 
Liesl Hickey and Rob Simms; and my staff directors at the Energy and 
Commerce Committee.
  You have heard of the late great Ray Baum, my colleague dating clear 
back to the late eighties in the Oregon Legislature and then all the 
way through

[[Page H7091]]

just a couple years ago when he passed away of cancer. Mike Bloomquist 
and Ryan Long also did such terrific work heading up the best committee 
in Congress.
  I want to thank the professional staff, many of whom have been on the 
floor today, my personal staff in Oregon and Washington, D.C. We rely 
so much on these very smart and talented people, and the country is 
well-served by their work.
  I want to thank the thousands of volunteers and supporters of my 
campaigns over the years. We did it together, and I would like to 
believe we did it for the right reasons: to leave our State and to 
leave our country better places than we found them.
  I also want to thank some important mentors in my life.
  Of course, I would have to start with my parents, who grew up with 
nothing during the Great Depression. They taught me the importance of 
giving back to the community, of working hard, and of always being 
honest and seldom being judgmental.
  I want to thank those along the way who gave me some interesting 
career opportunities.
  My freshman year in college was spent at the University of Alaska 
Fairbanks. I want to thank the folks at KTVF and the old KFRB Mighty 
Ninety in Fairbanks who put a 17-year-old kid in charge of producing 
and directing the 11 o'clock TV news. I had never been in a TV studio 
before, and suddenly, as a freshman in college, I was working every 
night doing that.
  To Roger Martin, Vic Atiyeh, Gary Wilhelms, and Denny Smith, I 
learned so much from working for each of you.
  To former Oregon Speaker Larry Campbell, time and again you showed 
Oregon how principled leadership produces good results. So it was great 
sport serving alongside you in the Oregon House.
  Of course, I want to thank the church, school, and scout leaders who 
influenced my life in such a positive way. I would give a shout-out to 
the late Earl Fowler. He was my high school vice principal and student 
body officer adviser whose counsel, when I was student body president 
at Hood River Valley High School, was as valuable then as it is now.
  I remember one of the things he told us as student leaders was: 
``When there is a leadership vacuum, fill it.'' He expected us to step 
up, to lead, and to take on challenges.
  I am indeed thankful for the opportunity the people of Oregon have 
given me to represent them in the United States House of 
Representatives. It is a responsibility I have always taken seriously 
as I faithfully tried to do my best to represent them. After all, this 
is their office, not mine. I was simply entrusted to use the powers 
     bestowed upon it for their benefit, something I never 
     forgot. It is part of why I have returned home nearly 
     every weekend and will soon--whenever we wrap up business 
     here--complete my 644th round trip back home.
  My team and I put special emphasis on taking care of the men and 
women who wear or have worn our Nation's uniform and defended America's 
freedom:
  We helped thousands of Oregon veterans and families receive the 
benefits they earned and deserved.
  We worked to strengthen the mission at Kingsley Air Field and open 
veterans clinics throughout the community and the district.
  We helped save the veterans facility in White City.
  America is blessed to have those brave men and women who risk their 
lives so that we can enjoy ours in peace. America owes them a debt we 
can never fully repay.
  Having grown up on a cherry orchard outside of The Dalles, Oregon, I 
always had great admiration for those who farm and ranch and feed us. I 
worked hard to protect their way of life, defending farmers and 
ranchers from bad policy proposals. I stood up for their water rights. 
I protected their land and ranching way of life.
  I am especially proud of the Steens Mountain Cooperative Management 
and Protection Act and the collaborative approach that it envisioned.
  Moreover, I supported ag research and water conservation efforts 
throughout the district. And while we made much progress on both 
fronts, my one regret is that we could never find the key to unlocking 
a durable and fair solution to the water crisis in the Klamath Basin 
that could also pass in the Congress.
  We did make progress to improve forest management, even though I am 
disappointed Congress has dragged its feet in enacting much-needed 
reforms to make our Federal forests healthier and more resilient to 
climate change.
  It was 17 years ago last week that President Bush signed the Healthy 
Forest Restoration Act into law. Hopefully, in the next Congress, you 
all will heed the guidance of our Yale forestry graduate and colleague, 
Bruce Westerman, to modernize how we manage this great American 
resource before the rest of it goes up in smoke.
  Having spent 6 years as chair of the Telecommunications Subcommittee, 
I am really proud of the bipartisan work we did together to open up 
spectrum for advanced communications; enact FirstNet, our first 
responders' new interoperable broadband network; and to expand access 
to high-speed internet, although much work still remains to fully 
connect all Americans to high-speed broadband.
  With the RAY BAUM'S Act, we even reauthorized and modernized the FCC, 
and, as you heard, that hadn't been done in a couple of decades.
  When I had the great privilege and honor to chair the Energy and 
Commerce Committee, we took on the deadly epidemic of drug overdose and 
combined more than 60 bipartisan pieces of legislation into the SUPPORT 
Act, which, while focused on the opioid crisis, actually was much 
bigger than that and provided support for our communities to help all 
with addiction.
  We modernized our mental health laws, stepped up medical research, 
and fully funded the Children's Health Insurance Program for a decade--
something that had never been done before.
  We modernized the FDA and its approval processes for medicines and 
medical devices, and thank goodness we did. Some of these changes have 
already proven their value during this pandemic.
  I am proud to have done my part to help enact Medicare part D, which 
finally brought more affordable medicines to America's seniors. While 
we need to update this law, it is a fact that Medicare part D has been 
a godsend to seniors who no longer have to board buses to foreign 
countries to get lifesaving medicines.
  We also unleashed a cleaner energy revolution in America that created 
thousands of new jobs and reduces America's carbon emissions, too. 
Energy innovation holds the opportunity for a strong economy and a 
healthier environment.
  Mr. Speaker, as you can tell, I am pretty passionate about good 
public policy, and I have really enjoyed this opportunity in serving 
with all of you. I think we can use our resources we have among 
ourselves in Congress to get good things done for the American people.
  It wasn't easy to decide to voluntarily leave this wonderful 
institution, but I had long ago decided I didn't want to get voted 
out--and I don't think that was going to happen--or carried out. I was 
confident I would win reelection, and my health is good, so I leave on 
my own terms, feeling good about that which I have helped improve in 
the lives of those who entrusted me election after election.
  I leave feeling positive about the ability to get good policy done 
right here in the U.S. House of Representatives. In fact, we just 
worked through a slate of bipartisan bills again today.
  I will miss this process, and I will miss you, my colleagues. Always 
remember how important the work you do here is and how much the fate of 
the American way of life rests in your hands every time you put that 
voting card in one of these machines.
  I am a big fan of Theodore Roosevelt. His writings have also had an 
impact on my life. Just as my high school adviser encouraged us to fill 
leadership vacuums, so did Roosevelt laud those who climbed into the 
arena. So I close with President Roosevelt's words:
  ``It is not the critic who counts; not the man who points out how the 
strong man stumbles, or where the doer of deeds could have done them 
better. The credit belongs to the man who is actually in the arena, 
whose face is marred by dust and sweat and blood; who strives 
valiantly; who errs, who comes short again and again, because there is 
no effort without error and shortcoming; but who does actually strive 
to

[[Page H7092]]

do the deeds; who knows great enthusiasms, the great devotions; who 
spends himself in a worthy cause; who at the best knows in the end the 
triumph of high achievement, and who at the worst, if he fails, at 
least fails while daring greatly, so that his place shall never be with 
those cold and timid souls who neither know victory nor defeat.''
  God bless you, my colleagues, family, and friends, and may God bless 
the United States of America.
  Mr. Speaker, I yield back the balance of my time.
  Mr. PALLONE. Mr. Speaker, I urge support for passage of the bill, and 
I also yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from New Jersey (Mr. Pallone) that the House suspend the 
rules and pass the bill, H.R. 7898, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  The title of the bill was amended so as to read: ``A bill to amend 
the Health Information Technology for Economic and Clinical Health Act 
to require the Secretary of Health and Human Services to consider 
certain recognized security practices of covered entities and business 
associates when making certain determinations, and for other 
purposes.''.
  A motion to reconsider was laid on the table.

                          ____________________