S.Amdt. 520

SA 520. Mr. KOHL (for himself, Mr. Hatch, and Mr. Bennet) submitted
an amendment intended to be proposed to amendment SA 98 proposed by Mr.
Inouye (for himself and Mr. Baucus) to the bill H.R. 1, making
supplemental appropriations for job preservation and creation,
infrastructure investment, energy efficiency and science, assistance to
the unemployed, and State and local fiscal stabilization, for fiscal
year ending September 30, 2009, and for other purposes; which was
ordered to lie on the table; as follows:

Beginning on page 357, strike line 1 and all that follows
through line 12 on page 359, and insert the following:
``(1) In general.--In applying section 164.528 of title 45,
Code of Federal Regulations, in the case that a covered
entity uses or maintains an electronic health record with
respect to protected health information--
``(A) the exception under paragraph (a)(1)(i) of such
section shall not apply to disclosures through an electronic
health record made by such entity of such information, except
that the Secretary shall exempt accounting for those
disclosures where the Secretary determines that such
accounting is unnecessary; and
``(B) an individual shall have a right to receive an
accounting of disclosures described in such paragraph of such
information made by such covered entity during only the three
years prior to the date on which the accounting is requested.
``(2) Regulations.--The Secretary shall promulgate
regulations on what disclosures must be included in an
accounting referred to in paragraph (1)(A) and what
information must be collected about each such disclosure not
later than 18 months after the date on which the Secretary
adopts standards on accounting for disclosure described in
the section 3002(b)(2)(B)(iv) of the Public Health Service
Act, as added by section 13101. Such regulations shall only
require such information to be collected through an
electronic health record in a manner that takes into account
the interests of individuals in learning when their protected
health information was disclosed and to whom it was
disclosed, and the usefulness of such information to the
individual, and takes into account the administrative and
cost burden of accounting for such disclosures.
``(3) Construction.--Nothing in this subsection shall be
construed as--
``(A) requiring a covered entity to account for disclosures
of protected health information that are not made by such
covered entity; or
``(B) requiring a business associate of a covered entity to
account for disclosures of protected health information that
are not made by such business associate.
``(4) Reasonable fee.--A covered entity may impose a
reasonable fee on an individual for an accounting performed
under paragraph (1)(B). Any such fee shall not be greater
than the entity's labor costs in responding to the request.
``(5) Effective date.--
``(A) Current users of electronic records.--In the case of
a covered entity insofar as it acquired an electronic health
record as of January 1, 2009, paragraph (1) shall apply to
disclosures, with respect to protected health information,
made by the covered entity from such a record on and after
January 1, 2014.
``(B) Others.--In the case of a covered entity insofar as
it acquires an electronic health record after January 1,
2010, paragraph (1) shall apply to disclosures, with respect
to protected health information, made by the covered entity
from such record on and after the later of the following:
``(i) January 1, 2011; or
``(ii) the date that it acquires an electronic health
record.
``(C) Later date.--The Secretary may set an effective date
that is later that the date specified under subparagraph (A)
or (B) if the Secretary determines that such later date it
necessary.''.
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