[Congressional Bills 118th Congress] [From the U.S. Government Publishing Office] [S. 5218 Introduced in Senate (IS)] <DOC> 118th CONGRESS 2d Session S. 5218 To amend titles XI and XVIII of the Social Security Act to strengthen, increase oversight of, and compliance with, security standards for health information, and for other purposes. _______________________________________________________________________ IN THE SENATE OF THE UNITED STATES September 25, 2024 Mr. Wyden (for himself and Mr. Warner) introduced the following bill; which was read twice and referred to the Committee on Finance _______________________________________________________________________ A BILL To amend titles XI and XVIII of the Social Security Act to strengthen, increase oversight of, and compliance with, security standards for health information, 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; TABLE OF CONTENTS. (a) Short Title.--This Act may be cited as the ``Health Infrastructure Security and Accountability Act of 2024''. (b) Table of Contents.--The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I--STRENGTHENING AND INCREASING OVERSIGHT OF, AND COMPLIANCE WITH, SECURITY STANDARDS FOR HEALTH INFORMATION Sec. 101. Security requirements. Sec. 102. Security risk management, reporting requirements, and audits for covered entities and business associates. Sec. 103. Increased civil penalties for failure to comply with security standards and requirements for health information. Sec. 104. User fee to support data security oversight and enforcement activities. TITLE II--MEDICARE ASSISTANCE TO ADDRESS CYBERSECURITY INCIDENTS 201. Medicare safe cybersecurity practices adoption program for eligible hospitals and critical access hospitals. 202. Medicare accelerated and advanced payments in response to cybersecurity incidents. TITLE I--STRENGTHENING AND INCREASING OVERSIGHT OF, AND COMPLIANCE WITH, SECURITY STANDARDS FOR HEALTH INFORMATION SEC. 101. SECURITY REQUIREMENTS. (a) In General.--Section 1173(d)(1) of the Social Security Act (42 U.S.C. 1320d-2(d)(1)) is amended-- (1) in subparagraph (A), by redesignating clauses (i) through (v) as subclauses (I) through (V) respectively and indenting appropriately; (2) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii) respectively and indenting appropriately; (3) by striking ``Security standards.--The Secretary'' and inserting the following: ``Minimum security standards.-- ``(A) In general.--The Secretary''; (4) in subparagraph (A), as added by paragraph (3)-- (A) in clause (i)(V), by striking ``and'' at the end; (B) in clause (ii), by striking the period at the end and inserting ``; and''; and (C) by adding at the end the following new clause: ``(iii) include minimum and enhanced security requirements adopted under subparagraph (B)''; and (5) by adding at the end the following new subparagraph: ``(B) Minimum and enhanced security requirements.-- ``(i) Adoption.--Subject to clauses (iii) and (iv), in order to protect health information, protect patient safety, and ensure the availability and resiliency of health care information systems and health care transactions, the Secretary shall adopt-- ``(I) minimum security requirements for covered entities and business associates; and ``(II) enhanced security requirements for covered entities and business associates that-- ``(aa) are of systemic importance, as determined by the Secretary; or ``(bb) are important to national security, as determined by the Secretary, in consultation with the Director of Cybersecurity and Infrastructure Security Agency and the Director of National Intelligence. ``(ii) Application of enhanced security requirements.-- ``(I) Notification.--The Secretary shall, at a time and in a manner determined appropriate by the Secretary, notify each covered entity and business associate that is subject to the enhanced security requirements under clause (i)(II). ``(II) Limitation on review.--There shall be no administrative or judicial review under section 1869, 1878, or otherwise of the methodology the Secretary uses to determine whether a covered entity or business associate is subject to the enhanced security requirements under clause (i)(II). ``(iii) Factors.--In addition to the factors described in subparagraph (A)(i), in developing-- ``(I) the minimum security requirements under clause (i)(I), the Secretary shall, in consultation with the Director of Cybersecurity and Infrastructure Security Agency and the Director of National Intelligence, design the requirements to prevent-- ``(aa) cyber incidents utilizing the tools and strategies used to target covered entities or business associates; ``(bb) the potential harms, as defined by the Secretary, to national security that could result from a cyber incident involving a covered entity or business associate; ``(cc) the potential harms, as defined by the Secretary, to patients that could result from a cyber incident involving a covered entity or business associate; and ``(dd) other potential harms from cyber incidents, as determined appropriate by the Secretary; and ``(II) the enhanced security requirements under clause (i)(II), the Secretary shall, in consultation with the Director of the Cybersecurity and Infrastructure Security Agency and the Director of National Intelligence, design the requirements to prevent the potential harms described in subclause (I) and protect against the specific threats the covered entities and business associates described in such clause face. ``(iv) Review and update of requirements.-- The Secretary shall review and update the minimum and enhanced security requirements adopted under clause (i) not less frequently than every 2 years. ``(v) Effective date and rulemaking.-- ``(I) Effective date.--The requirements under this subparagraph shall take effect on the date that is 2 years after the date of enactment of this subparagraph. ``(II) Rulemaking.--Not later than 18 months after the date of enactment of this subparagraph, the Secretary shall promulgate regulations to carry out this subparagraph. ``(vi) Definitions.--For purposes of this subsection: ``(I) Business associate.--The term `business associate' has the meaning given such term in section 160.103 of title 45, Code of Federal Regulations (or a successor regulation). ``(II) Covered entity.--The term `covered entity' has the meaning given that term in section 160.103 of title 45, Code of Federal Regulations (or a successor regulation). ``(III) Systemic importance.--The term `systemic importance' means, with respect to a covered entity or business associate, that the failure of, or a disruption to, such entity or associate would have a debilitating impact on access to health care or the stability of the health care system of the United States (as determined by the Secretary).''. (b) Availability of Health Information.--Section 1173(d)(2)(A) of the Social Security Act (42 U.S.C. 1320d-2(d)(2)(A)) is amended by striking ``the integrity and confidentiality'' and inserting ``the availability, integrity, and confidentiality. SEC. 102. SECURITY RISK MANAGEMENT, REPORTING REQUIREMENTS, AND AUDITS FOR COVERED ENTITIES AND BUSINESS ASSOCIATES. (a) Security Risk Management and Reporting.--Section 1173(d) of the Social Security Act (42 U.S.C. 1320d-2(d)) is amended by adding at the end the following new paragraph: ``(3) Security risk management and reporting.-- ``(A) In general.--Each covered entity and business associate shall at a minimum, on an annual basis-- ``(i) conduct and document a security risk analysis, including information regarding the manner and extent to which such entity or associate is exposed to risk through its business associates; ``(ii) document a plan for a rapid and orderly resolution in the event of a natural disaster, disruptive cyber incident, or other technological failure to its information systems or those of its business associates; ``(iii) conduct a stress test to evaluate whether such entity or associate has the capabilities and planning necessary to recover essential functions, such as patient care operations and transactions described in subsection (a)(2), following a cyber incident, a natural disaster, or other substantial threat to health care operations, as determined by the Secretary; ``(iv) document whether, based upon the results of the stress test described in clause (iii), the covered entity or business associate revised the most recent plan described in clause (ii); ``(v) provide a written statement signed by the chief executive officer and chief information security officer (or equivalent thereof) stating that the covered entity or business associate is in compliance with security requirements adopted under part 160 of title 45, Code of Federal Regulations, and subparts A and C of part 164 of title 45, Code of Federal Regulations (or a successor regulation), including the applicable security requirements adopted under paragraph (1)(B); and ``(vi) publish on a publicly accessible website-- ``(I) whether the covered entity or business associate has received a notification from the Secretary pursuant to paragraph (1)(B)(ii)(I); ``(II) whether the covered entity or business associate meets the minimum security requirements and, if applicable, the enhanced security requirements under paragraph (1)(B); and ``(III) a copy of each statement provided under clause (v) with respect to each year in a machine-readable format. ``(B) Stress test methodology.--The Secretary shall provide for not less than 2 different sets of conditions under which the test described in subparagraph (A)(iii) is to be conducted. ``(C) Waiver authority.--The Secretary may waive the requirements of this paragraph with respect to a covered entity or business associate if the burden on the entity or associate significantly outweighs the benefits, taking into account the revenue of the entity or associate, the volume of protected health information or health care transactions processed by the entity or associate, and such other factors as the Secretary determines appropriate. ``(D) Reporting.-- ``(i) In general.--Subject to clause (ii), each covered entity and business associate shall submit the documentation required under subparagraph (A) at such time, in such form, and containing such information as the Secretary may require. ``(ii) Annual reporting for covered entities and business associates subject to enhanced security requirements.--Each covered entity and business associate that is subject to enhanced security requirements shall submit the documentation required under subparagraph (A) to the Secretary not less frequently than on an annual basis. ``(E) Definitions.--For purposes of this subsection: ``(i) Cyber incident.--The term `cyber incident' has the meaning given the term `incident' in section 2200(12) of the Homeland Security Act of 2002 (6 U.S.C. 650(12)). ``(ii) Machine-readable.--The term `machine-readable' has the meaning given such term in section 3502 of title 44, United States Code. ``(iii) Stress test.--The term `stress test' means an extensive real-world simulation intended to test the operational resilience of the health care operations of a covered entity or business associate in response to a substantial interruption in information systems, including the ability to-- ``(I) continue to provide essential care and services during and in the recovery period from such substantial interruption; and ``(II) timely rebuild the information systems (as defined in section 2200(14) of the Homeland Security Act of 2002 (6 U.S.C. 650(14))) of such covered entity or business associate. ``(F) Effective date.--The requirements under this paragraph shall take effect on the date that is 3 years after the date of enactment of this paragraph.''. (b) Independent Security Compliance Audits.--Section 1173(d) of the Social Security Act (42 U.S.C. 1320d-2(d)), as amended by subsection (a), is amended by ad