[116th Congress Public Law 321]
[From the U.S. Government Publishing Office]
[[Page 134 STAT. 5072]]
Public Law 116-321
116th Congress
An Act
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. <<NOTE: Jan. 5, 2021 - [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. <<NOTE: 42 USC 17941.>> 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--
``(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
[[Page 134 STAT. 5073]]
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) <<NOTE: 42 USC 300jj-52 note.>> 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).
Approved January 5, 2021.
LEGISLATIVE HISTORY--H.R. 7898:
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CONGRESSIONAL RECORD, Vol. 166 (2020):
Dec. 9, considered and passed House.
Dec. 19, considered and passed Senate.
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