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S.578
Health Care PIN Act (Introduced in the Senate)
SEC. 301. WRONGFUL DISCLOSURE OF PROTECTED HEALTH INFORMATION .
(a) IN GENERAL- Part I of title 18, United States Code, is amended by
adding at the end the following:
`CHAPTER 124--WRONGFUL DISCLOSURE OF PROTECTED HEALTH INFORMATION
`Sec.
`2801. Wrongful disclosure of protected health information .
`Sec. 2801. Wrongful disclosure of protected health information
`(a) OFFENSE- The penalties described in subsection (b) shall apply to a
person that knowingly and intentionally--
`(1) obtains protected health information relating to an
individual in violation of title II of the Health Care PIN Act;
`(2) discloses protected health information to another person in
violation of title II of the Health Care PIN Act; or
`(3) uses protected health
information in violation of
title II of the Health Care
PIN Act.
`(b) PENALTIES- A person described in subsection (a) shall--
`(1) be fined not more than $50,000, imprisoned not more than 1 year, or
both;
`(2) if the offense is committed under false pretenses, be fined not
more than $250,000, imprisoned not more than 5 years, or any combination of
such penalties;
`(3) if the offense is committed with the intent to sell, transfer, or
use protected health information for commercial
advantage, personal gain, or malicious harm, be fined not more than
$500,000, imprisoned not more than 10 years, excluded from participation in
any federally funded health
care programs, or any combination of such penalties.
`(c) SUBSEQUENT OFFENSES- In the case of a person described in subsection
(a), the maximum penalties described in subsection (b) shall be doubled for
every subsequent conviction for an offense arising out of a violation or
violations related to a set of circumstances that are different from those
involved in the previous violation or set of related violations described in
such subsection (a).'.
(b) CLERICAL AMENDMENT- The table of chapters for part I of title 18,
United States Code, is amended by inserting after the item relating to chapter
123 the following new item:
2801'.
SEC. 302. DEBARMENT FOR CRIMES.
(a) PURPOSE- The purpose of this section is to promote the prevention and
deterrence of instances of intentional criminal actions which violate criminal
laws which are designed to safeguard the protected health information in a manner consistent
with this Act.
(b) DEBARMENT- Not later than 270 days after the effective date of this
Act, the Attorney General, in consultation with the Secretary, shall
promulgate regulations and establish procedures to permit the debarment of
health care providers, health researchers, health or life insurers, or schools or
universities from receiving benefits under any Federal health programs if the managers or
officers of such entities are found guilty of violating section 2801 of title
18, United States Code, have civil penalties imposed against such officers or
managers under section 311 in connection with the illegal disclosure of
protected health information , or are found guilty of
making a false statement or obstructing justice related to attempting to
conceal or concealing such illegal disclosure. Such regulations shall take
into account the need for continuity of medical care and may provide for a
delay of any debarment imposed under this section to take into account the
medical needs of patients.
(c) CONSULTATION- Before publishing a proposed rule to implement
subsection (b), the Attorney General shall consult with State law enforcement
officials, health care
providers, patient privacy
rights' advocates, and other appropriate individuals and entities, to gain
additional information regarding
the debarment of entities under subsection (b) and the best methods to ensure
the continuity of medical care.
(d) REPORT- The Attorney General shall annually prepare and submit to the
Committee on the Judiciary of the House of Representatives and the Committee
on the Judiciary of the Senate a report concerning the activities and
debarment actions taken by the Attorney General under this section.
(e) ASSISTANCE TO PREVENT CRIMINAL VIOLATIONS- The Attorney General, in
cooperation with any other appropriate individual, organization, or agency,
may provide advice, training, technical assistance, and guidance regarding
ways to reduce the incidence of improper disclosure of protected health information .
(f) RELATIONSHIP TO OTHER AUTHORITIES- A debarment imposed under this
section shall not reduce or diminish the authority of a Federal, State, or
local governmental agency or court to penalize, imprison, fine, suspend,
debar, or take other adverse action against a person, in a civil, criminal, or
administrative proceeding.
Subtitle B--Civil Sanctions
SEC. 311. CIVIL PENALTY.
(a) VIOLATION- A health care
provider, health researcher,
health plan, health oversight agency, public health agency, law enforcement agency,
employer, health or life
insurer, school, or university, or the agent of any such individual or entity,
who the Secretary, in consultation with the Attorney General, determines has
substantially and materially failed to comply with this Act shall be subject,
in addition to any other penalties that may be prescribed by law--
(1) in a case in which the violation relates to title I, to a civil
penalty of not more than $500 for each such violation, but not to exceed
$5,000 in the aggregate for multiple violations;
(2) in a case in which the violation relates to title II, to a civil
penalty of not more than $10,000 for each such violation, but not to exceed
$50,000 in the aggregate for multiple violations; or
(3) in a case in which the Secretary finds that such violations have
occurred with such frequency as to constitute a general business practice,
to a civil penalty of not more than $100,000.
(b) PROCEDURES FOR IMPOSITION OF PENALTIES- Section 1128A of the Social
Security Act, other than subsections (a) and (b) and the second sentence of
subsection (f) of that section, shall apply to the imposition of a civil,
monetary, or exclusionary penalty under this section in the same manner as
such provisions apply with respect to the imposition of a penalty under
section 1128A of such Act.
SEC. 312. PROCEDURES FOR IMPOSITION OF PENALTIES.
(a) INITIATION OF PROCEEDINGS-
(1) IN GENERAL- The Secretary, in consultation with the Attorney
General, may initiate a proceeding to determine whether to impose a civil
money penalty under section 311. The Secretary may not initiate an action
under this section with respect to any violation described in section 311
after the expiration of the 6-year period beginning on the date on which
such violation was alleged to have occurred. The Secretary may initiate an
action under this section by serving notice of the action in any manner
authorized by Rule 4 of the Federal Rules of Civil Procedure.
(2) NOTICE AND OPPORTUNITY FOR HEARING- The Secretary shall not make a
determination adverse to any person under paragraph (1) until the person has
been given written notice and an opportunity for the determination to be
made on the record after a hearing at which the person is entitled
to be represented by counsel, to present witnesses, and to cross-examine
witnesses against the person.
(3) ESTOPPEL- In a proceeding under paragraph (1) that--
(A) is against a person who has been convicted (whether upon a verdict
after trial or upon a plea of guilty or nolo contendere) of a crime under
section 2801 of title 18, United States Code; and
(B) involves the same conduct as in the criminal action;
the person is estopped from denying the essential elements of the
criminal offense.
(4) SANCTIONS FOR FAILURE TO COMPLY- The official conducting a hearing
under this section may sanction a person, including any party or attorney,
for failing to comply with an order or procedure, failing to defend an
action, or other misconduct as would interfere with the speedy, orderly, or
fair conduct of the hearing. Such sanction shall reasonably relate to the
severity and nature of the failure or misconduct. Such sanction may
include--
(A) in the case of refusal to provide or permit discovery, drawing
negative factual inferences or treating such refusal as an admission by
deeming the matter, or certain facts, to be established;
(B) prohibiting a party from introducing certain evidence or otherwise
supporting a particular claim or defense;
(C) striking pleadings, in whole or in part;
(D) staying the proceedings;
(E) dismissal of the action;
(F) entering a default judgment;
(G) ordering the party or attorney to pay attorneys' fees and other
costs caused by the failure or misconduct; and
(H) refusing to consider any motion or other action which is not filed
in a timely manner.
(b) SCOPE OF PENALTY- In determining the amount or scope of any penalty
imposed pursuant to section 311, the Secretary shall take into account--
(1) the nature of claims and the circumstances under which they were
presented;
(2) the degree of culpability, history of prior offenses, and financial
condition of the person presenting the claims; and
(3) such other matters as justice may require.
(c) REVIEW OF DETERMINATION-
(1) IN GENERAL- Any person adversely affected by a determination of the
Secretary under this section may obtain a review of such determination in
the United States Court of Appeals for the circuit in which the person
resides, or in which the claim was presented, by filing in such court
(within 60 days following the date the person is notified of the
determination of the Secretary) a written petition requesting that the
determination be modified or set aside.
(2) FILING OF RECORD- A copy of the petition filed under paragraph (1)
shall be forthwith transmitted by the clerk of the court to the Secretary,
and thereupon the Secretary shall file in the Court the record in the
proceeding as provided in section 2112 of title 28, United States Code. Upon
such filing, the court shall have jurisdiction of the proceeding and of the
question determined therein, and shall have the power to make and enter upon
the pleadings, testimony, and proceedings set forth in such record a decree
affirming, modifying, remanding for further consideration, or setting aside,
in whole or in part, the determination of the Secretary and enforcing the
same to the extent that such order is affirmed or modified.
(3) CONSIDERATION OF OBJECTIONS- No objection that has not been raised
before the Secretary with respect to a determination described in paragraph
(1) shall be considered by the court, unless the failure or neglect to raise
such objection shall be excused because of extraordinary
circumstances.
(4) FINDINGS- The findings of the Secretary with respect to questions of
fact in an action under this subsection, if supported by substantial
evidence on the record considered as a whole, shall be conclusive. If any
party shall apply to the court for leave to adduce additional evidence and
shall show to the satisfaction of the court that such additional evidence is
material and that there were reasonable grounds for the failure to adduce
such evidence in the hearing before the Secretary, the court may order such
additional evidence to be taken before the Secretary and to be made a part
of the record. The Secretary may modify findings as to the facts, or make
new findings, by reason of additional evidence so taken and filed, and shall
file with the court such modified or new findings, and such findings with
respect to questions of fact, if supported by substantial evidence on the
record considered as a whole, and the recommendations of the Secretary, if
any,
for the modification or setting aside of the original order, shall be
conclusive.
(5) EXCLUSIVE JURISDICTION- Upon the filing of the record with the court
under paragraph (2), the jurisdiction of the court shall be exclusive and
its judgment and decree shall be final, except that the same shall be
subject to review by the Supreme Court of the United States, as provided for
in section 1254 of title 28, United States Code.
(d) RECOVERY OF PENALTIES-
(1) IN GENERAL- Civil money penalties imposed under this subtitle may be
compromised by the Secretary and may be recovered in a civil action in the
name of the United States brought in United States district court for the
district where the claim was presented, or where the claimant resides, as
determined by the Secretary. Amounts recovered under this section shall be
paid to the Secretary and deposited as miscellaneous receipts of the
Treasury of the United States.
(2) DEDUCTION FROM AMOUNTS OWING- The amount of any penalty, when
finally determined under this section, or the amount agreed upon in
compromise under paragraph (1), may be deducted from any sum then or later
owing by the United States or a State to the person against whom the penalty
has been assessed.
(e) DETERMINATION FINAL- A determination by the Secretary to impose a
penalty under section 321 shall be final upon the expiration of the 60-day
period referred to in subsection (c)(1). Matters that were raised or that
could have been raised in a hearing before the Secretary or in an appeal
pursuant to subsection (c) may not be raised as a defense to a civil action by
the United States to collect a penalty under section 311.
(1) IN GENERAL- For the purpose of any hearing, investigation, or other
proceeding authorized or directed under this section, or relative to any
other matter within the jurisdiction of the Attorney General hereunder, the
Attorney General, acting through the Secretary shall have the power to issue
subpoenas requiring the attendance and testimony of witnesses and the
production of any evidence that relates to any matter under investigation or
in question before the Secretary. Such attendance of witnesses and
production of evidence at the designated place of such hearing,
investigation, or other proceeding may be required from any place in the
United States or in any Territory or possession thereof.
(2) SERVICE- Subpoenas of the Secretary under paragraph (1) shall be
served by anyone authorized by the Secretary by delivering a copy thereof to
the individual named therein.
(3) PROOF OF SERVICE- A verified return by the individual serving the
subpoena under this subsection setting forth the manner of service shall be
proof of service.
(4) FEES- Witnesses subpoenaed under this subsection shall be paid the
same fees and mileage as are paid witnesses in the district court of the
United States.
(5) REFUSAL TO OBEY- In case of contumacy by, or refusal to obey a duly
served upon, any person, any district court of the United States for the
judicial district in which such person charged with contumacy or refusal to
obey is found or resides or transacts business, upon application by the
Secretary, shall have jurisdiction to issue an order requiring such person
to appear and give testimony, or to appear and produce evidence, or both.
Any failure to obey such order of the court may be punished by the court as
contempt thereof.
(g) INJUNCTIVE RELIEF- Whenever the Secretary has reason to believe that
any person has engaged, is engaging, or is about to engage in any activity
which makes the person subject to a civil monetary penalty under section 311,
the Secretary may bring an action in an appropriate district court of the
United States (or, if applicable, a United States court of any territory) to
enjoin such activity, or to enjoin the person from concealing, removing,
encumbering, or disposing of assets which may be required in order to pay a
civil monetary penalty if any such penalty were to be imposed or to seek other
appropriate relief.
(h) AGENCY- A principal is liable for penalties under section 311 for the
actions of the principal's agent acting within the scope of the agency.
SEC. 313. REPORT ON USE OF EXISTING ENFORCEMENT MECHANISMS.
In addition to the criminal and civil penalties that may be applied under
this title, the Secretary shall prepare and submit to Congress a report
regarding the use of existing Federal, State and other licensure,
certification and regulatory mechanisms, including State insurance
regulations, for the imposition of sanctions or penalties for the wrongful
disclosure of protected health
information .
SEC. 314. CIVIL ACTION BY INDIVIDUALS.
(a) IN GENERAL- Any individual whose rights under this Act have been
knowingly or negligently violated may bring a civil action to recover--
(1) such preliminary and equitable relief as the court determines to be
appropriate; and
(2) the greater of compensatory damages or liquidated damages of
$5,000.
(b) PUNITIVE DAMAGES- In any action brought under this section in which
the individual has prevailed because of a knowing violation of a provision of
this Act, the court may, in addition to any relief awarded under subsection
(a), award such punitive damages as may be appropriate.
(c) ATTORNEY'S FEES- In the case of a civil action brought under
subsection (a) in which the individual has substantially prevailed, the court
may assess against the respondent a reasonable attorney's fee and other
litigation costs and expenses (including expert fees) reasonably incurred.
(d) LIMITATION- No action may be commenced under this section more than 3
years after the date on which the violation was or should reasonably have been
discovered.
TITLE IV--MISCELLANEOUS
SEC. 401. RELATIONSHIP TO OTHER LAWS.
(a) STATE AND FEDERAL LAW-
(1) STATE LAW ENACTED PRIOR TO EFFECTIVE DATE- Nothing in this Act shall
be construed to supersede any provision of State law that establishes,
implements, or continues in effect any standard or requirement relating to
the privacy of protected health information if such provision is
enacted prior to the effective date of this Act. Such laws shall not be
superseded after such effective date to the extent that such laws are at
least as protective of the privacy of protected health information as the protections
provided under this Act.
(2) STATE LAW ENACTED AFTER EFFECTIVE DATE- Except as provided in
subsections (b) and (c), the provisions of this Act shall preempt any State
law relating to the privacy of
protected health information if such law is enacted
after the effective date of this Act.
(3) FEDERAL LAW- Nothing in this Act shall be construed as repealing,
explicitly or implicitly, other Federal laws or regulations relating to
protected health information or relating to an
individual's access to protected health information or health care services.
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