[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