Behavioral Health Information Technology Act of 2012 - Amends the Public Health Service Act to include as a health care provider behavioral and mental health professionals, substance abuse professionals, psychiatric hospitals, certain community mental health centers, and residential or outpatient mental health or substance abuse treatment facilities.
Amends title XVIII (Medicare) of the Social Security Act (SSA), with respect to incentives for meaningful use of certified electronic health records (EHR) technology under the pay schedule for physician's services, to include as eligible professionals clinical psychologists providing qualified psychologist services.
Makes inpatient psychiatric hospitals eligible for payment for inpatient hospital services.
Amends SSA title XIX (Medicaid) to treat as Medicaid providers: (1) public and certain private hospitals that are principally psychiatric hospitals, (2) certain community mental health centers, and (3) certain residential or outpatient mental health or substance abuse treatment facilities.
Makes eligible professionals under the Medicaid program certain clinical psychologists providing qualified psychologist services.
Authorizes a covered entity to submit to a Patient Safety Organization information on electronic health record (EHR)-related adverse events with respect to certified EHR technology the entity has used or provided.
Specifies covered entities as certain EHR users, health information exchange entities, and health care professionals who use EHR technology.
Defines an EHR-related adverse event as a defect, malfunction, or error in the certified health information technology or electronic health record used by a 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.
Limits electronic discovery (e-discovery) in any health care lawsuit against a covered entity relating to an Reallotted adverse event involving certified EHR technology to information: (1) related to that event, and (2) from the period in which the event occurred.
Prohibits a claimant from commencing a lawsuit more than three years after the manifestation of injury or one year after the claimant discovers, or should have discovered, the injury, whichever occurs first. Requires tolling of this limitation, however, to the extent that the claimant is able to prove: (1) fraud; (2) intentional concealment; or (3) the presence of a foreign body, with no therapeutic or diagnostic purpose or effect, in the injured person.
Subjects each party to such a lawsuit which is not a covered entity to proportionate liability only.
Allows punitive damages against a covered entity only upon proof by clear and convincing evidence that the entity acted with reckless disregard for the claimant's health or safety.
Shields covered entities, employees, agents, and representatives from civil liability for libel or slander arising from information or entries made in certified EHR technology, or transferred to another eligible provider, if the information, entries, or transfer were made in good faith and without malice.
[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.
<all>
Introduced in House
Introduced in House
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.
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.
Referred to the Subcommittee on Health.
Referred to the Subcommittee on Health.
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